"THE BANNERS in the brave days of the civil rights struggle proclaimed the dignity and irrefutable nobility of the cause: Justice. Equality. Jobs. . . . This year, the keepers of the civil rights cause could come up with no slogan catchier than 'The burden of proof in anti-discrimination lawsuits should be on the employer!' "
That put down is not from the right-y American Spectator, National Review or even the New Republic. It is from a front page editorial in The Nation, the most respected liberal journal of opinion in the country. The magazine's editors go on to call the House-passed Democratic-sponsored version of the Civil Rights Act of 1991 "a measure of marginal importance to the empowerment of minorities and women."
That last part is true. But The Nation has the slogan part wrong. It's not just the keepers of the cause who would put the burden on the employer. Congressional Republicans and President Bush would, too. The argument is over something else, the definition of "business necessity" when an employer cites that as a reason for not having a statistically correct work force.
Here is what the newest version, a "compromise" offered by moderate Republican senators, says: "The term 'required by business necessity' means, in the case of employment practices involving selection, that the practice or group of practices bears a manifest relationship to requirements for effective job performance.' " The House Democrats' definition says "significant and manifest relationship," and the House Republicans and the Bush administration said "manifest relationship to [and] significantly served by." If there is a significant difference here it is not manifest to me.
This whole effort started in 1989 to overturn some Supreme Court decisions, principally one that removed the burden of proof in discrimination lawsuits from employers. Now everybody agrees to overturn the court -- and still the battle goes on, with both sides employing rhetoric that is excessive. Sometimes irresponsibly so. It is sad to see Rep. John Lewis, who was the movement's Sergeant York and Audie Murphy rolled into one -- the bravest of the brave -- denouncing the opponents of the Democratic bill with, "The scars and stains of racism are still deeply embedded in the American society."
They are, but it is wrong to charge that choosing one instead of another of these bills is racist. (A minor but related point: Speaker Tom Foley boasted after the House passed the bill 273-158 that that represented a gain over the roll call on the bill at a similar stage in the last Congress. But on that roll call he had abstained, as is traditional for the speaker, and this year he voted for the bill, and this year's "gain" was exactly one vote.)
Lewis extremism and Foley quackery show frustration at inability to win public opinion to their side. Extremism and quackery are also why public opinion is not on their side. As The Nation says, "It's been a long slide since the brave days."