During the 1988 presidential campaign, George Bush vowed to be "the education president." As far as the Civil Rights Act of 1990 goes, however, Bush's team may itself be in need of a lesson in arithmetic.
The Civil Rights Act of 1990 would overturn the Supreme Court's recent Wards Cove decision, among other cases, thus restoring legal rules that courts have used to resolve employment discrimination disputes since 1971. These rules govern challenges to neutral employment practices that exclude women or minorities from the workplace or limit their opportunities for advancement.Under the legal framework re-established by this legislation, a plaintiff must first prove that a practice or group of practices has a substantial disparate impact on women or minorities within the relevant, qualified work force. If the plaintiff succeeds, the employer must prove that the challenged practice is substantially and demonstrably related to effective job performance. It is difficult to imagine why an employer would not want to use practices that are predictive of job performance, since increased productivity usually means increased profits.
Nevertheless, Bush's attorney general has warned that these provisions of the legislation would "drive employers to replace legitimate hiring practices with quotas." The bill establishes legal standards that are so difficult for employers to meet, the argument goes, that they will simply resort to racial quotas to make their number look right, thus avoiding lawsuits they cannot win.
Bush, beware of false prophets. If numbers are to be the issue, so be it. But let the numbers we consider be factual and germane rather than illusory.
The quota scare, for example, has a hollow ring to it. When asked recently if employers had been forced to adopt quotas in the past under these rules, the attorney general replied, "I don't know that they weren't."
Indeed, prior to Wards Cove, employers successfully defended most of the practices challenged under these rules. That fact may explain why Arthur Fletcher, the man Bush recently named to head the U.S. Civil Rights Commission, has categorically stated that the pending legislation would not result in quotas either directly or indirectly.
The attorney general has also protested provisions of the Civil Rights Act of 1990 which would make certain monetary damages available to women and religious minorities victimized by intentional employment discrimination. We are told that these provisions would flood the courts with new lawsuits and produce million-dollar awards. These fears are as groundless as the quota scare: Under a federal statute that already allows racial minorities to recover such damages, plaintiffs were awarded damages in only 68 of 576 reported cases. Plaintiffs received less than $50,000 in two-thirds of these cases and received over $200,000 in only three instances.
What do the numbers tell us about where women and minorities are in our society today? The EEOC obtained over $91 million in monetary relief for discrimination victims in fiscal year 1989 alone. Countless major private and public sector employers have had to remedy systemic discrimination over the past several years, including General Motors, Westinghouse, State Farm Insurance, U.S. Steel (now USX), the U.S. Department of State, the FBI and the City of New York. In today's economy, black workers are more than twice as likely to be unemployed as white workers.
Recent decisions of the Supreme Court have also produced some alarming numbers. Hundreds of discrimination victims have had their claims dismissed or have otherwise had their rights and remedies impaired as a consequence of five of the court's decisions last term.
The Civil Rights Act of 1990 would overturn these cases, restore pre-existing law, and strengthen existing remedies.