Why Danforth is Right on Civil Rights Law


August 13, 1991|By JAMES J. KILPATRICK

WASHINGTON — Washington. -- Sen. John Danforth now has given up on President Bush. The Missouri Republican will make no further effort to find a compromise on a civil rights bill. Instead, he will join forces with Senate Democrats to get action as soon as the Congress reconvenes on Sept. 9.

Very well. With some reservations, and with one derisive hoot, I am prepared to say, go ahead and pass the Danforth bill. A few lawyers will get rich; a few blacks and women may benefit; a few whites will suffer discrimination in reverse, but the heavens won't fall.

I am prompted to venture a word of support for several reasons. First, Mr. Danforth's package is the simplest and most forthright of the civil-rights bills floating around Capitol Hill since this session began. Second, the president's stated reason for opposing Senator Danforth's key bill may best be described, in a kindly word, as baloney.

Mr. Danforth would overrule five decisions of the Supreme Court, but he would overrule them sensibly. His most controversial measure, S.1208, would overrule Wards Cove v. Atonio. This was the 1989 case in which the high court overturned its own 1971 decision in Griggs v. Duke Power Co., having to do with requirements for employment.

By way of background: Willie Griggs was among 14 blacks employed as common laborers at Duke's Dan River Station in Draper, N.C. In 1965 the company decided no person would be hired unless he held a high school diploma or passed a standard intelligence test. The rule had a serious impact upon blacks, the victims of racially segregated schooling.

The Supreme Court, speaking through Chief Justice Burger in 1971, unanimously held the requirements unlawful. Nothing is wrong, said the court, with qualifications that ''fulfill a genuine business need.'' Tests may be used, but only if they have ''a manifest relationship to the employment in question.'' The touchstone, said the chief justice, is ''business necessity.''

Senator Danforth's bill, as I read it, closely tracks the language of the Griggs decision. The measure speaks repeatedly of ''business necessity.'' It requires that an employment practice must bear ''a manifest relationship to requirements of effective job performance.'' At another point, the bill speaks of ''a manifest relationship to a legitimate business objective of the employer.''

It seems to me that such phrases as ''effective job performance'' and ''legitimate business objective'' are not so impenetrable judges would find their construction impossible. The words are not arcane. If Mr. Danforth and his colleagues would add a provision expressly renouncing quotas, U.S. employers would have a bill they could live with.

The president's bizarre objection is embarrassing. To prevent an employer from uniformly requiring a high-school diploma of new hires, said Mr. Bush, would ''seriously if not fatally'' undermine efforts to improve education. The president dragooned Lamar Alexander, secretary of education, into supporting this foolishness. Mr. Alexander said Senator Danforth's bill ''would send precisely the wrong message to students and teachers.'' Young people would believe that ''staying in school doesn't matter.''

What hokum! Chief Justice Burger met the issue head-on: ''History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas or degrees. Diplomas and tests are useful servants, but Congress has mandated that they are not to become masters of reality.''

One provision in Mr. Danforth's package ought to be hooted down. He would apply all the new rules to private employers, but he would leave the Congress alone. The private employee who feels discrimination may go to court. Under the Danforth bill, the congressional employee who feels discrimination could go only to an ethics committee. How hypocritical can we get?

Mr. Danforth's plan is to combine his three separate bills into one catchall measure. These would overrule not only Griggs, but also cases known as Lorance, Patterson, Price-Waterhouse, and Birmingham Firefighters. Even the president agrees that Lorance and Patterson ought to be corrected. Mr. Danforth's language in the other two areas will demand close scrutiny, but his purpose is generally sound.

The country, I submit, is fed up with legalistic haggling. Let us pass Senator Danforth's bill, with amendments, and get on to matters of greater meaning to minorities than statutes of limitations, consent decrees and disparate impact.

James J. Kilpatrick is a syndicated columnist.

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