WASHINGTON (Jun. 18)
The support of most Jewish organizations for the Civil Rights Act of 1990 could tip the balance on whether President Bush vetoes or signs the bill.
Bush, who has said he would like to sign the bill if he can be assured it will not lead to hiring quotas, has been impressed that Jewish groups support the legislation.
“Jewish groups bring a special perspective to the issues of quotas,” said Jess Hordes, Washington representative of the Anti-Defamation League of B’nai B’rith.
He was referring to the use of quotas earlier this century by American universities and employers to limit the number of Jews they would accept for admission or placement. That historical experience has made Jews wary of supporting affirmative action programs that contain specific numerical hiring or promotion goals.
“The fact that we have come to the conclusion that this bill would not result in quotas” could be a factor in the president’s decision, Hordes said.
However, one Jewish group, Agudath Israel of America, has opposed the bill, because the Orthodox group fears it could lead to employers imposing their own quotas to avoid the threat of expensive lawsuits.
The legislation was introduced by Sen. Edward Kennedy (D-Mass.) and Rep. Augustus Hawkins (D-Calif.), in order to strengthen protection against discrimination on the basis of race or sex that was weakened by five Supreme Court decisions in 1989.
AGUDAH SUPPORTS SOME PROVISIONS
The Senate is expected to approve the bill within the next few weeks. In the House of Representatives, it has been approved by the Education and Labor Committee, but still needs to be voted out by the Judiciary Committee before going to the full House.
Some supporters of the bill are pushing for floor votes in each house during the American visit of African National Congress leader Nelson Mandela, who arrives in New York on Wednesday and is to address a joint session of Congress on June 26.
Bush has held a series of meetings with representatives of black, Jewish, Catholic, Hispanic, Asian-American, civil rights and women’s groups, in order to get their views on the Kennedy-Hawkins Bill.
The Jewish representatives were: Meyer Eisenberg, chairman of ADL’s national legal affairs committee; Judith Golub, legislative director in the Washington office of the American Jewish Committee; and David Zwiebel, Agudath Israel’s general counsel.
In a letter sent to Bush recently, Zwiebel said Agudath Israel supports a provision of the law that would hold employers accountable for intentional illegal discrimination.
The bill would allow victims of job discrimination to seek compensatory and punitive damages. Up to now, they could only sue for back pay, attorney’s fees or a court order to reverse a dismissal or denial of promotion based on discrimination.
“We do not believe that holding employers responsible for the full consequences of their unlawful intention is likely to lead to the implementation of unlawful quotas,” Zwiebel said in his letter to Bush.
But Zwiebel believes the bill’s provision on unintentional discrimination are too broad and could lead to “kitchen sink complaints” that would require huge legal expenses by employers.
“Rather than risking legal exposure, many employers would likely adopt numerical quotas to avoid problems,” Zwiebel said.
COMPROMISE LANGUAGE WELCOMED
Golub of AJCommittee called this argument a “red herring.”
She said that before the Supreme Court reversed the 1971 decision in Griggs vs. Duke Power Co., the court for 19 years had ordered employers to remove subjective tests and other barriers to employment, without ever once imposing a numerical quota. Nor did employers during that period set up quotas on their own, she said.
Supporters of the bill point to an agreement recently worked out between Kennedy and Sen. John Danforth (R-Mo.) on uintentional discrimination that they believe has effectively eliminated the threat of quotas from the legislation.
Danforth and several other Republicans, who were concerned about quotas, now support the bill.
As explained by Danforth, the Senate version of the bill now drops the requirement that employers prove that job qualifications are “essential” to their businesses. Instead, employers would only need to show that hiring practices bear “a substantial and demonstrable relationship to effective job performance.”
“This lower standard will bar discrimination without forcing employers to adopt surreptitious employment quotas,” Danforth said. He said that House managers have agreed to this change.
The Kennedy-Danforth amendment “should resolve once and for all legitimate concerns” about quotas, Golub said.
Hordes said that ADL believed the original bill would not result in quotas, and the amendment “further reduces the possibility.”
He said that it makes it easier for an employer to prove the necessity of its employment practices.
SEMANTIC DEBATE CONTINUES
But Agudath Israel still feels the language is too burdensome on the employer. The employer should be able to show that his practices are “more than insubstantial, but less than essential or indispensable,” said Abba Cohen, the group’s Washington representative.
Hordes observed that no one on either side wants quotas. But the debate has come down to a question of semantics over whether this would be the result of the legislation.
This semantic debate is now going on within the Bush administration as the president looks for a way to support the legislation. Bush is said to want to make a show of support for civil rights and to reach out to the black community, which felt alienated by the Reagan administration.
But the president is under heavy pressure from conservatives to veto the legislation. There is some expectation that before the bill comes to the Senate floor, Bush may propose his own language, in an attempt to ensure that quotas would not result from the new law, even inadvertently.