Defining the issue on rights


NEW YORK -- ARTHUR JONES, 50, has been a janitor at the local electronics plant for the last 15 years. When the plant closes, he applies for a janitor's job at a tool company. He has good references, praising his honesty and hard work, but he doesn't get the job. The company requires a high school diploma, and he didn't finish school.

That is the kind of job qualification that President Bush insists businesses must be allowed to impose under a new civil rights bill. He objects to a bill by Sen. John C. Danforth, R-Mo., that opens to challenge qualifications unnecessary to perform a particular job.

Why? Because, the president explained, to rule out irrelevant educational job requirements would "undermine the reform and renewal of our educational system by discouraging employers from relying on educational effort and achievement."

Bush's explanation seemed so far-fetched when he gave it last week that it prompted ridicule. Danforth said it would be persuasive only "if you believe that an employer on his own is going to further educational policy by shutting out 50-year-old people who never got a high school diploma."

But there is a real issue underlying the president's pieties, and his disagreement with Danforth helps greatly to define it. The issue is how, and to what extent, our law should try to correct historic inequities faced by women and racial minorities in employment.

The Civil Rights Act of 1964 made job discrimination unlawful. But it used language so vague that its real meaning was left to the courts to find in concrete cases.

In 1971, in the Griggs case, the Supreme Court held that when a job qualification had a disparate impact on women or minorities, the 1964 act made it unlawful unless an employer could show that it was a business necessity. The burden of proof was on the employer.

The concept of "disparate impact" took the law beyond deliberate racist intent to practical effects. If a high educational standard, for example, resulted in a virtually all-white, all-male staff, the employer had to show a good business reason for the standard.

In hundreds of cases lower courts said employers had to prove that challenged qualifications bore on the ability to do a job.

The Griggs interpretation of the 1964 act made a real difference in this country. Professor Paul Gewirtz of the Yale Law School, writing in the current issue of The New Republic, said "it deserves more credit for integrating America's workplaces than any other law case."

Then, in 1989, the Supreme Court overruled the Griggs decision. It reversed the burden of proof, making employees prove that a challenged job qualification was not really related to business needs.

That new interpretation of the law has had a drastic effect. Along with other recent Supreme Court decisions, it has made it almost impossible for victims of alleged job discrimination to win lawsuits.

The question is whether to go back to the Griggs rule that governed for 18 years. And that is not, as the press often says, a "technical" question. It determines whether the law does something effective about job discrimination or not.

"The president says he agrees with Griggs, but he doesn't." That is how Danforth put it. And that is the real reason for doubts about the president's position.

Bush is not straight about what he is doing. He says he wants to fight job discrimination, but he finds far-out reasons to oppose a meaningful legal test to that end.

There is a real choice here: one described with fairness and clarity by Gewirtz. Using the law to enlarge job opportunities for minorities and women is not cost-free. One may honorably oppose that course. Those who support it, as I do, believe it is essential to the country's social peace and progress.

The president angrily denies that he is a racist, and I do not think he is. But neither has he shown sensitivity to the great unsolved American problem. As a candidate for the Senate he opposed the Civil Rights Act of 1964. Now he talks about "quotas," a non-issue in the civil rights bill. He does not see that on race, as Danforth put it, "the most important thing a politician can do is to try to keep the country glued together."

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