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Clinton seeks to reverse Bush bias rule Hundreds of cases could be affected


WASHINGTON -- The Clinton administration, making its first sharp break with Bush administration policy on civil rights, urged the Supreme Court yesterday to salvage hundreds of lawsuits for past race and sex bias on the job.

All of those claims for money by workers would be wiped out if they are not able to take advantage of new anti-discrimination protection contained in the 1991 Civil Rights Act.

Those workers all are claiming that race or sex discrimination happened to them on the job before Nov. 21, 1991 -- the day the new law went into effect.

The Bush administration had argued repeatedly in federal court that Congress did not intend to extend the new law retroactively, to cover discrimination that happened before President Bush signed the new bill into law or to govern any case that was in court on Nov. 21, 1991.

Under new leadership, however, the Justice Department reversed its position yesterday.

In a formal legal brief, the department told the Supreme Court that it had "re-examined" the earlier view and "concluded that it is both incorrect and contrary to the long-standing position" the federal government previously had taken on making new laws retroactive.

If the Supreme Court accepts the government's new view, somewhere approaching 300 discrimination lawsuits involving several times that number of workers would be allowed to go forward, instead of being scuttled.

Otherwise, they would be wiped out because all involved legal claims that the Supreme Court in recent years had rejected.

But Congress -- after a two-year battle with President George Bush -- passed the sweeping new civil rights law two years ago, and Mr. Bush reluctantly signed it. That law overturned eight separate Supreme Court rulings that had gone against workers who claimed they were victims of bias on the job.

One of the most important benefits Congress gave workers was a broad right to sue for damages, under an 1866 civil rights law, if a worker was fired from a job because of race.

Those claims had been nullified by the Supreme Court in 1989, when it ruled that the old law did not apply to firings.

Another important benefit Congress gave was to permit victims of race and sex bias on the job to sue for damages, covering out-of-pocket losses plus "punitive damages," for intentional discrimination that violates the 1964 Civil Rights Act.

Those damage allowances were a brand-new remedy under the 1991 law, because federal law previously allowed workers to collect only back pay when their job rights were violated under the 1964 act.

The new administration brief was filed in a pair of cases that the court agreed on Feb. 22 to review.

Those cases will come up for hearings next fall, and will be decided sometime next year. Each one involves the two key benefits Congress provided in the 1991 law.

In one, two black garage mechanics in Toledo sued in early 1987 for damages under the 1866 act, claiming that they were fired because of their race. A federal appeals court ruled that the 1991 law did not salvage their claim.

In the other case, filed in July 1989, a woman who worked in a plastic bags factory in Tyler, Texas, claimed she was the victim of sexual harassment when a male worker repeatedly made sexual comments to her and touched her.

After a judge ruled that the sexual harassment was illegal under the 1964 law, she demanded damage payments. A federal appeals court said that the 1991 law's new damages clauses would only apply to post-1991 claims.

The Clinton administration defended the workers' claims in both cases in its brief yesterday.

Congress clearly meant to wipe out the Supreme Court's ruling against race-based firings, and thus Congress presumably meant such claims should now proceed, it argued.

Although the damage remedies Congress created in 1991 are new, the brief contended, companies that engage in or tolerate intentional bias on the job should bear the costs of those wrongs, not the workers.

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