With President Bush excoriating House Democrats for passing a "quota bill"-and being savaged in return for fanning racial divisions-the rancorous debate over how much to expand job-discrimination remedies threatens to do race relations more harm than any law could cure.
But even as the opposing partisans have descended deeper into oversimplification and name calling, the real gap between their proposals has narrowed.
For the good of the country, it is imperative to bridge the gap and to get this issue behind us. A replay of last year’s Bush veto of a Democratic civil-rights bill would only suffuse the 1992 campaign with the poison of racial politics.
It should now be possible to come up with a statesmanlike compromise between the mainly Democratic bill that the House passed last week. 273-158. and the Bush administration’s competing proposal.
Statesmanship has been in short supply among the contending partisans-President Bush and the Democrats alike-as they have grappled for rhetorical advantage and the political high ground.
But Sen. John Danforth (R-Mo.) threw a glimmer of hope into this disturbing picture last week, by rounding up eight other moderate Republicans to sponsor a three-bill package that draws from both the president’s and the Democrats bills and seeks to bridge their differences.
Danforth says he acted out of a conviction that "it’s important to extricate the racial question from partisan politics." He would judiciously expand remedies for victims of job discrimination while seeking to avoid undue pressure on employers to adopt surreptitious quotas.
Danforth’s approach would improve both on current law, which the Supreme Court in 1989 tilted against job-discrimination plaintiffs, and on the House-passed bill, which would go too far in the opposite direction.
While far from perfect, his bills strike a pretty good balance in an area so rife with competing values, conflicting perceptions, and mind-numbing legal complexities that real consensus on details is unattainable.
Adoption of something like the Danforth bills may be the best hope for getting any new civil-rights legislation at all. It would allow Democratic leaders and the president to find common ground without losing face.
So far this year, the White House has seemed to slam the door on the possibility of compromise, with the president stridently wielding the quota label and his aides derailing the Business Roundtable’s negotiations with civil-rights groups.
But if President Bush can be faulted for deepening racial divisions and oversimplifying complex issues in a bid for political advantage, so can the Democrats and civil-rights lobbyists who so furiously denounce him.
While the president fans the racial resentments of blue-collar white males, his adversaries inflame the passions of minorities and women, and exaggerate the extent to which the desperate plight of many blacks in this country and their inability to get good jobs is attributable to discrimination in the workplace.
In the name of fighting discrimination, the Democrats have pushed to put far more pressure than they will admit on employers to engage in reverse discrimination, by using racial and gender preferences to ensure racially proportionate work forces.
Consider the House Democrats’ claim that their bill would explicitly outlaw quotas. While it makes a good sound bite, this purported ban is a fraud. It is drafted so as to bless by negative implication the kind of strict numerical hiring by race that most people call quotas.
The trick is in the bill’s definition of a quota as a fixed numerical requirement "regardless of whether such persons meet necessary qualifications to perform the job.”
This language would clearly permit, and might in some cases be read to require, employers seeking racial balance to hire minimally qualified minorities ahead of demonstrably better-qualified whites.
This is not to say that the president’s reductionist "quota bill" rhetoric fairly describes the current Democratic proposal.
Quotas are a matter of degree. Any bill that requires employers to justify any job-selection criteria (such as written tests) that screen out disproportionate numbers of minorities-including the president’s own bill as well as the others- creates at least some incentive to use quotas.
The original Democratic bill, introduced 16 months ago, would have created a large incentive. It contained a wish list of virtually every procedural advantage a plaintiffs lawyer seeking racial preferences could want.
But the bill that passed the House last week had been moderated significantly to attract broader support and allay the concerns of big business.
For example, the Democrats watered down their first definition of business necessity, which would have made it almost impossible for employers to justify any selection criteria that screen out disproportionate numbers of women and minorities.
Democratic leaders have also sought to allay business fears of an explosion of damage suits by capping punitive damages at $150,000 (or the amount of any compensatory damages, if higher) in discrimination cases that do not involve race.
For his part, the president has also edged toward the center from his original position, in the wake of the 1989 Supreme Court decisions, that no new legislation was needed.
By last summer, he had agreed to overrule in part the most controversial of those decisions, Wards Cove Packing Co. v. Atonio, by putting back on the employer-defendant the burden of proving the "business necessity" of practices that have a disparate impact on minorities and women.
President Bush also agreed last year to allow victims of intentional racial discrimination and harassment on the job to sue for the full range of compensatory and punitive damages under an 1866 law. He would create a much more limited damage remedy for victims of sexual harassment.
While many differences remain, the public controversy has centered on the arcane details of the employer’s burden of proof in disparate-impact cases.
For those anxious to avoid quotas, the administration’s proposal is preferable because it seems to give employers more latitude to use job-selection criteria that intuitively seem job-related, even if they have a disparate impact and cannot be validated with scientific precision.
But the Danforth language isn’t bad. It would require proof of "a significant relationship to requirements for effective job performance.” And unlike the Democratic bill, it explicitly disclaims any intent "to prevent an employer from hiring the most effective individual for a job.”
Would this language-in the hands of a federal judiciary increasingly dominated by Reagan and Bush appointees-operate as an engine of quotas? It hardly seems likely.
Danforth would also meet a major White House objection to the Democrats’ bill by requiring plaintiffs to specify which employment practices they allege to have a disparate impact. This would spare employers the onerous burden of proving the business necessity of everything they do.
One misguided and unnecessary proposal that Danforth picked up from the Democratic bill is to bar retroactively virtually all reverse-discrimination suits challenging racial arid gender preferences called for by judicially approved consent decrees.
This is a formula for perpetuating supposedly temporary, remedial racial preferences into the indefinite future by stripping the rights, for example, of white firefighters who were children when a decree allocating promotions on the basis of race was adopted. The proposal should be dropped.
These and other detailed provisions of the Danforth bills, including a convoluted proposal on damage awards that employers will like better than that in the Democrats’ bill, are not the stuff of inspirational rhetoric and would leave both sides in the civil-rights debate unsatisfied.
But Danforth has made a good start. Better a modest compromise that gives something to both sides than a stalemate that can produce only an unending, racially divisive donnybrook.