Washington -- PRESIDENT Bush's signing of the civil rights bill reinstating standards for proving job discrimination thrown out by the Supreme Court in 1989 will not write an end to one lingering aspect of the controversy.
Democratic Rep. James McDermott of Washington state is introducing this week legislation to undo a provision in the civil rights bill that explicitly exempts the very case that triggered the original Supreme Court decision.
The case was a class action brought in 1974 against the Wards Cove Packing Company, which operates salmon canneries along the long coastline of Alaska, charging the company discriminated in job hiring and working conditions of minority workers, primarily of native Alaskan and Asian descent.
The court on the basis of the case threw out previously held standards for determining "disparate impact" on certain groups in employment practices and ruled that Wards Cove could claim vague "business necessity" in denying to certain workers particular job opportunities. The civil rights bill just passed requires, as before the Wards Cove decision, that firms specify how business necessity demands any alleged discriminatory practice -- except as regards the Wards Cove case.
Principal sponsors of the exemption were Republican Sens. Frank Murkowski and Ted Stevens of Alaska. Efforts to have it removed from the bill by Democratic Sen. Brock Adams of Washington state failed in the face of the bipartisan compromise on the bill that the White House said it would accept.Sen. Ted Kennedy, a prime negotiator on the bill, reluctantly accepted the exemption, according to an aide, as "the price that had to be paid" for the support of Murkowski and Stevens, a contention denied by them.
In a comedy of errors prior to passage of the bill, Senate Minority Leader Bob Dole inadvertently struck the Wards Cove exemption, but alert action by Murkowski and Stevens pushed an amendment through restoring the pertinent language, to Adams' chagrin.
In a letter to colleagues before the vote, Adams wrote: "How can we in the United States Senate justify an amendment to a civil rights bill intended to overturn the Supreme Court's erroneous ruling in the Wards Cove case that denies those very cannery workers their full day in court?" The plea fell on deaf ears in a Senate weary of jousting with the White House.
Now, however, McDermott has picked up the ball in the House, where aides say he has been promised early consideration by the House Judiciary Committee. Jeff Biggs, a spokesman for Speaker Tom Foley, says removing the Wards Cove exemption has its best chance as a separate piece of legislation "and we're committed to doing something about it."
The two Alaska senators have defended their exemption on grounds that the case has been in the courts for 17 years now and the company should not be subject to retroactive application of the new civil rights bill, although what it essentially does is restore the standards existing when the class action first was brought against Wards Cove.
Allegations of special interest have been tossed back and forth -- Murkowski received a contribution of $1,750 from the company in 1989 and Adams' former law firm is representing the accusers. Blair Thomas, Murkowski's legislative aide, scoffs at the notion that a campaign contribution of that size could affect his boss' conduct, and Adams has said the lawyer from his old firm who was handling the case is no longer with the firm and is a state superior court judge. The Seattle Times labeled as "stealthy" Murkowski's inclusion of the Wards Cove exemption, a charge that Thomas calls "preposterous."
The latest fight over the Wards Cove case continues a tortuous course it has taken ever since a Filipino cannery worker named Frank Atonio filed a class action on behalf of himself and about 2,000 minority workers at the canneries. Nine separate court rulings have been handed down, a number of them procedural, in which both sides have professed to be vindicated. Supporters of the class action say Wards Cove has spent more than $175,000 lobbying for the special relief the Murkowski-Stevens exemption has given it.
The question now is whether Congress will want to revisit any aspect of the legislative rollback of the 1989 Supreme Court decisions on discriminatory employment practices that has already consumed so much time and fanned such passions this year.