New rights act so confused it's likely to breed years of court tests, lawyers say

December 27, 1991|By Steven A. Holmes | Steven A. Holmes,New York Times News Service

WASHINGTON -- As they prepare to try cases under the new civil rights act signed last month by President Bush, lawyers say it is riddled with confusing and ambiguous provisions that will take the courts years to straighten out.

The goal of the law, which Congress adopted after a bruising two-year debate and many compromises, is to make it easier for women and members of minorities to sue employers on grounds of discrimination.

But legal experts say that in trying to paper over deep philosophical divisions on the issue of racial preferences, the lawmakers further clouded many issues.

"It took two years to pass this law, and it will take 10 years of litigation before there is any full understanding of what Congress meant," said Lawrence Z. Lorber, who was the chief negotiator for the Business Roundtable, a group of major corporations that tried to reach a compromise with rights groups on the bill.

Some questions raised but not answered by the new law are these:

* Is the law retroactive? It is unclear whether the law covers job bias suits that were pending in federal courts when it was passed or new cases only. In recent weeks, federal judges have made a series of contradictory rulings on the issue.

* What is the scope of damage awards? Under the law, women, the disabled and members of religious minorities can for the first time receive compensatory and punitive damages of up to $300,000 for intentional discrimination, including sexual harassment. But the measure is unclear whether it means $300,000 for each suit or for each allegation.

* Can employers legally continue programs that favor women and minority members in hiring and promotion? One provision says that "except as otherwise provided in this title," unlawful discrimination can be established if "race, color, religion, sex or national origin was a motivating factor for any employment practice." Another provision says, "Nothing in the amendments made by this act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are in accordance with the law."

* What is the impact on affirmative action for state and local governments and school boards that base hiring and promotion on civil service tests? The measure appears to severely restrict the ability of government personnel directors to hire any but the top-ranking applicants from civil service lists. If the measure is deemed retroactive, hiring and promotion not based on strict rankings could be subject to legal challenges.

Lawyers said the ambiguities about affirmative action programs

that were not ordered by a court but undertaken voluntarily were particularly troubling.

Although the new law says it protects programs that are "in accordance with the law," it does not define that phrase.

Does it refer to past Supreme Court decisions that have upheld )) the use of race or sex in hiring and promotions? Or does it refer to the new law itself, which says the consideration of race or sex is now illegal?

"If my client would ask me, I would have to say I don't know any more," a lawyer representing a major telecommunications company said, referring to the legality of his firm's affirmative action program.

"We may be overly nervous and overly reactive. But until the issue is litigated, we don't know where we stand any more." The lawyer spoke only on the condition that neither he nor his client be identified.

The ambiguous language could lead to more lawsuits from whites charging reverse discrimination, some lawyers say. But if companies seek to avoid such suits by dropping affirmative action programs, they could find themselves more vulnerable to discrimination suits filed by female and minority workers.

"The Civil Rights Act obviously applies to whites and to white males, as well as to minorities and women," said Brenda Freis, a Chicago lawyer.

"Whatever move a business takes right now, they will be vulnerable to suits from all sides," she said.

Surprisingly, the provision outlawing the use of race or sex as a "motivating factor" in hiring and promotion was included at the insistence of civil rights groups.

"I think they have dug their own graves on this," said a congressional aide.

But some proponents of affirmative action, as well as some conservatives who oppose it, say they doubt the provision could be used to outlaw affirmative action programs.

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