Major Differences on Civil Rights Bill of 1991 So: Minority Staff of the House Committee on Education and Labor, The New York Times

June 04, 1991

The House of Representatives is expected to vote today on a civil rights bill dealing with discrimination in the workplace. Three separate bills will be considered, one sponsored by President Bush, one sponsored by the Democratic leadership and some Republicans, and one by the Black Caucus.


Bush: No provision.

Democratic compromise: States that nothing in the Act shall be construed to encourage, require, or permit an employer to adopt quotas." Defines "quota" as a fixed number or percentage to be attained or not exceeded, regardless of ability to meet the qualifications for a job.

Black Caucus: No provision.


Bush: No provision.

Democrats: Prohibits both "race-norming" and the use of biased employment tests that fail to predict job performance equally well regardless of race, religion, sex or national origin.

Black Caucus: No provision.


Citing Supreme Court rulings in cases where a company's apparently neutral hiring or promotion practices have a "disparate impact" on minorities, it is up to the worker to prove that such practices are not a business necessity.

Issue: How specific must complainants be in court?

Bush Administration: A specific practice, or practices, would have to be cited.

Democrats: Complainants must cite a specific practice, or practices, unless a court finds that despite a "diligent effort," that is an impossible burden.

Black Caucus: Complainants can demonstrate that "a group of employment practices" caused a discriminatory result.

Issue: Who has the burden of proof, the employer or the employee?

Black Caucus: Once a "disparate impact" is shown, the burden of proof shifts to the employer, on the ground that the employer, not the complainant, is in the best position to know why the practice is necessary.

Bush: The same.

Democrats: The same.

Issue: What kind of "business necessity" can legitimize the screening out of women and minorities?

Bush: Employers would have their choice of providing either "legitimate employment goals" or the "manifest relationship" rule.

Democrats: Employers must prove that the practice has a "significant and manifest relationship to job performance." Defines "requirements for effective job performance" to include factors such as attendance, punctuality and not engaging in misconduct or insubordination.

Black Caucus: Employers would have to prove that a challenge practice "bears a substantial and demonstrable relationship to effective job performance."


Issue: In the 1989 Patterson vs. McLean Credit Union case, the Supreme Court held that the right to sue for damages for racial job discrimination under an 1866 law did not apply to on-the-job harassment, or other forms of discrimination after someone was hired. Since then lower courts have disagreed as to whether the law applies to dismissals, promotions, and all other terms of employment.

Democratic compromise: Same as Black Caucus, and would also make clear that the provision applies to discrimination other than that based on state law.

Bush Administration: Same as Democrats.

Black Caucus: The Patterson decision would be rejected, absolutely, and the Reconstruction-era law would be clearly defined as applying to hirings, dismissals, promotions and all other terms of employment.

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