"Look, is it or is it not a quota bill"? Congressional Democrats are trying again to pass the civil rights act President Bush vetoed last year. Mr. Bush said it would introduce the destructive force of quotas into our nation's employment system." The administration has submitted its own, allegedly more salubrious, alternative. Republicans see quotas as a "defining" issue for 1992.
Two decades ago, in the Griggs case, the Supreme Court ruled that the 1964 Civil Rights Act covers not only overt discrimination, but also practices that are "fair in form but discriminatory in operation." If some practice, such as a hiring exam, has a "disparate impact" on minorities, it must be justified "business necessity."
The charge has been that this indirectly promotes reverse discrimination. "Disparate impact" is measured by statistics comparing, say, the percentage of blacks on the payroll with the percentage in the local labor market. To avoid costly lawsuits, and the nightmare of justifying every hiring practice in court, companies will simply hire enough blacks to bring the statistics in line. That's the claim.
Two years ago, in Wards Cove, the court backed off of Griggs. Under Griggs, once a complaining worker established a statistical disparity, it was up to the employer to prove the business necessity of the hiring practice at issue. Wards Cove put the burden on the worker to prove a lack of business necessity. Both sides of the present debate insist that their sole wish is to reverse Wards Cove.
But Republicans charge that the Democratic bill would break new ground in promoting quotas, while Democrats say the Republican bill would fail to restore the prelapsarian bliss of 1989.
On the quota issue -- there are other controversies -- the differences between the two bills are farcically small. Both sides want to shift the burden of proof of "business necessity" back onto the employer. The Democrats want to define business necessity as "a significant relationship to successful performance of the job" or a significant relationship to "a significant business objective."
The administration wants to define it as a "manifest relationship to the employment in question" or a matter in which "legitimate employment goals" are significantly served."
Democrats charge that the Republicans' language about "legitimate employment goals" would allow airlines, for example, justify age discrimination in favor of younger flight attendants on the grounds that customers prefer it. Republicans charge that the Democrats' language about "successful" job performance implies that employers have no right to hold out for "optimal" job performance.
There is an equally Talmudic dispute about whether disgruntled workers may complain of discrimination based on several employment practices, or must raise one at a time.
"Yes, yes, but is it a quota bill"? The civil rights lobby maintains there is no evidence that businesses favor minorities to avoid lawsuits. If they don't, they must be idiots. I sure would.
But if that makes the Democrats' bill a "quota bill," then the Republicans' bill is a "quota bill" too. The Republicans don't propose to repeal the civil-rights doctrines that encourage reverse discrimination. Quite the opposite. They pledge fealty to Griggs. They concede the main point that employers should bear the burden of justifying statistical disparities.
Perhaps the administration's bill would put somewhat less pressure on employers to favor minorities and women -- along with somewhat less pressure to avoid genuine discrimination against them. But to suggest that the difference between the words "manifest relationship" and "significant relationship" is the difference between Martin Luther King's dream of a color-blind society and the abyss of reverse racism is absurd.
After years of posturing about "color-blindness," conservatives are now trapped in deep disingenuousness on this subject. Any measure that causes employment decisions to turn on factors of race, sex, ethnicity, or religion -- rather than on qualifications -- is "fundamentally unfair and is at odds with our civil rights tradition."
So says President Bush, who also, reports the Washington Post, has written to the [Senate] minority leader asking that senators "make a special effort to find female, black, and Hispanic candidates" for federal judgeships. Does anyone believe those candidates don't have an edge, once they are found?
So conservatives are awash in reverse discrimination themselves. Meanwhile, their constant invoking of "our civil rights tradition" is rich, coming from people who have been dragged reluctantly through every stage in that tradition. Mr. Bush himself opposed the 1964 Civil Rights Act. And there obviously would be no administration civil-rights bill in 1991 except for the need to oppose the Democratic bill with something.
Polls show that Americans, by a wide margin, support "affirmative action" but oppose "reverse discrimination." If only it were that simple. This is another subject, like taxes and spending, about which politicians have taught the voters to be hypocrites.
TRB writes commentaries for The New Rebublic.