Republican Conference, October 25, 1991

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File Name (Dublin Core): lead_401_043_all
Title (Dublin Core): Republican Conference, October 25, 1991
Date (Dublin Core): 1991-10-25
Date Created (Dublin Core): 1991-10-25
Congress (Dublin Core): 102nd (1991-1993)
Policy Area (Curation): Civil Rights and Liberties, Minority Issues
Creator (Dublin Core): Dole, Robert J., 1923-2021; U.S. Senate Republican Policy Committee
Record Type (Dublin Core): notes (documents)
Rights (Dublin Core): http://rightsstatements.org/vocab/CNE/1.0/
Language (Dublin Core): eng
Collection Finding Aid (Dublin Core): https://dolearchivecollections.ku.edu/index.php?p=collections/findingaid&id=26&q=
Physical Location (Dublin Core): Collection 007, Box 401, Folder 43
Institution (Dublin Core): Robert J. Dole Institute of Politics, University of Kansas, Lawrence, KS
Archival Collection (Dublin Core): Robert J. Dole Republican Leadership Collection, 1985-1996
Full Text (Extract Text): {page 1}
Fri, Oct. 25, 1991 1pm
:selected: Bond
:selected: Brown
Burns
Chafee
:selected: Coats
:selected: Cochran
:selected: Cohen
:selected: Craig
D'Amato
:selected: Danforth
:selected: Dole
:selected: Domenici
:selected: Durenberger
Garn
:selected: Gorton
Gramm
Grassley
:selected: Hatch
:selected: Hatfield
:selected: Helms
:selected: Jeffords
:selected: Kassebaum
:selected: Kasten
:selected: Lott
:selected: Lugar
Mack
:selected: McCain
McConnell
:selected: Murkowski
Nickles
Packwood
Pressler
:selected: Roth
:selected: Rudman
Seymour
Simpson
:selected: Smith
Specter
:selected: Stevens
:selected: Symms
Thurmond
Wallop
:selected: Warner
Sununu
Boyden Gray
Jim Dyer
(Printed by the Republican Secretary) GPO: 1991 41-672 (m)
civil rights
{page 2}
FOR REPUBLICAN CAUCUS AT 1:PM
TALKING POINTS ON CIVIL RIGHTS COMPROMISE
-- This is a fair civil rights bill that I can support. I think we as Republicans owe a great deal to the President, Senator Danforth, and Senator Dole.
-- We have come a long way during the year and one half we have debated this legislation. In fact, only five months ago, the House overwhelmingly passed H.R. 1, a terrible bill, miles to the left of the compromise reached last night.
-- I'd say the principal issue for many of us has long been the effort by proponents to overturn the Wards Cove case dealing with the standards and requirements for disparate impact cases under Title VII. In my view, the compromise worked out yesterday alleviates the principal concerns in this area. The concept of "business necessity" is relatively straightforward. No definition of the term is included in the bill. But the legislative history clearly preserves caselaw that provides flexibility to employers and will not compel employers to hire by the numbers to avoid lawsuits. Further, the issue of "particularity" (involving the extent to which plaintiffs can blanketly challenge groups of employment practices as opposed to specific ones) is in my view resolved in the President's favor.
-- The issue of expanding damages under Title VII (and allowing compensatory and punitive damages under that statute for the first time) was the second major area of contention. As you all know, we had the business community coming unglued over this issue. Moreover, I don not think any of us in this room wanted to create a litigation boom under Title VII. On the other side, we faced a forceful case for parity for women with minorities who have long had unlimited damages and jury trials available to them under Section 1981. The compromise last night caps such damages and permits jury trials. It will likely make neither side completely happy, but it is the best deal that could be reached under these circumstances.
(The actual caps are similar to the Danforth bill. However, we have gone for the Danforth three tier system based on the size of the business, to a four tier system ranging from $50,000 to $300,000).
-- There were, of course, other details worked out. Martin v. Wilks, a decision I felt strongly about preserving, has been overturned, but at least not in the wholesale manner of earlier versions of this legislation. (I am hopeful the Supreme Court will throw this provision out as unconstitutional. That is one reason I have focused more of my attention of Wards Cove).
-- We started with legislation last year which was a grab bag for the legal profession. A number of provisions overturning cases which rein in lawyers have been dropped.
{page 3}
CIVIL RIGHTS COMPROMISE
O WE HAVE REACHED AGREEMENT ON THE SO-CALLED WARDS COVE ISSUES, INCLUDING THE MEANING OF THE TERM "BUSINESS NECESSITY." BUSINESS NECESSITY HAS BEEN AT THE CENTER OF THE CIVIL RIGHTS STORM. AFTER NEARLY TWO YEARS OF ARGUMENT, WE HAVE FINALLY COME UP WITH AN ACCEPTABLE DEFINITION.
O WE HAVE GENERALLY ACCEPTED THE DAMAGES SCHEME IN THE DANFORTH BILL -- WITH A CAP OF $50,000 FOR THE SMALLEST EMPLOYERS AND A CAP OF $300,000 FOR THE LARGEST EMPLOYERS.
QUESTION: WHY IS THE COMPROMISE NO LONGER A QUOTA BILL?
ANSWER: UNLIKE H.R. 1 AND THE ORIGINAL VERSION OF S. 1745, WE HAVE NOT CHANGED THE BUSINESS NECESSITY TEST AS IT HAS BEEN DEFINED BY THE SUPREME COURT IN GRIGGS V. DUKE POWER CO. AND IN SUBSEQUENT SUPREME COURT CASES. IF THE BUSINESS NECESSITY TEST HAD BEEN TOO TOUGH TO SATISFY, RATIONAL EMPLOYERS WOULD HAVE BEEN FORCED TO ADOPT QUOTAS IN ORDER TO AVOID THE EXPENSE OF LITIGATION.
{page 4}
FINAL COMPROMISE
(Amendments to S. 1745)
October 24, 1991
1. Purposes
On page 2, strike lines 18-22 and substitute the following:
"(2) to codify the concepts of "business necessity" and "job related" enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
2. Wards Cove -- Business Necessity/Cumulation/Alternative Business Practice
On page 8, strike lines 17-24.
On page 9, strike lines 1-9.
On page 9, strike lines 19-24, on page 10, strike lines 1-20 and substitute the following:
"(k) (1) (A) An unlawful employment practice based on disparate impact is established under this title only if --
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is {underlined: job related for the position in question and consistent with business necessity}; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to a different employment practice and the respondent refuses to adopt such alternative employment practice.
(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subsection (A) (i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one employment practice.
On page 10, line 22, strike the phrase ", in whole or in significant part, ".
On page 11, strike lines 1-9 and substitute the following:
"(C) The demonstration referred to by subparagraph (A) (ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of 'alternative
{page 5}
business practice' . "
Exclusive Legislative History. The terms "business necessity" and "job related" are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove v. Atonio, 490 U.S. 642 (1989) .
When a decision-making process includes particular, functionally-integrated practices which are components of the same criterion, standard, method of administration, or test, such as the height and weight requirements designed to measure strength in Dothard v. Rawlinson, 433 U.S. 321 (1977), the particular, functionally-integrated practices may be analyzed as one employment practice.
3. Expert Fees. Add section authorizing expert fees in Section 1981 cases.
4. Damages. Technical changes pertaining to ADA coverage and application to disparate impact cases.
Revise caps on compensatory and punitive damages as follows:
Cap on Damages Size of Employer
$50,000 16-100 employees
$100,000 101-200 employees
$200,000 201-500 employees
$300,000 more than 500 employees
Page 2 -- Final Compromise
{page 6}
GOP Conference Mtg 10/25
:selected: Bond
:selected: Brown
Burns
Chafee
:selected: Coats
:selected: Cochran
:selected: Cohen
:selected: Craig
D'Amato
:selected: Danforth
:selected: Dole
:selected: Domenici
:selected: Durenberger
Garn
:selected: Gorton
Gramm
Grassley
:selected: Hatch
:selected: Hatfield
Helms
:selected: Jeffords
:selected: Kassebaum
:selected: Kasten
:selected: Lott
:selected: Lugar
Mack
McCain
McConnell
:selected: Murkowski
Nickles
Packwood
Pressler
:selected: Roth
:selected: Rudman
Seymour
Simpson
:selected: Smith
Specter
:selected: Stevens
:selected: Symms
Thurmond
Wallop
:selected: Warner
{crossed out: 18}
{crossed out: 19}
{crossed out: 23} Quorum {illegible}
{crossed out: 24}
{crossed out: 25}
26
(Printed by the Republican Secretary) GPO: 1991 41-672 (m)
{page 7}
CIVIL RIGHTS
{selected} THE PRESIDENT'S BILL
O ON THE ISSUE OF SEXUAL HARASSMENT, PRESIDENT BUSH IS WAY AHEAD OF THE GAME. THE PRESIDENT'S BILL IS THE ONLY PENDING CIVIL RIGHTS BILL THAT ESTABLISHES A MONETARY REMEDY SPECIFICALLY FOR SEXUAL HARASSMENT -- UP TO $150,000.
O THE PRESIDENT'S BILL IS THE ONLY BILL THAT DEFINES SEXUAL HARASSMENT. CURRENTLY, SEXUAL HARASSMENT IS DEFINED BY EEOC REGULATION. IF EVER WE NEEDED A CLEAR-CUT DEFINITION OF SEXUAL HARASSMENT, IT'S NOW.
O THE PRESIDENT'S BILL EXTENDS THE STATUTE OF LIMITATIONS FOR CLAIMS OF SEXUAL HARASSMENT AGAINST THE FEDERAL GOVERNMENT -- FROM 30 DAYS TO 90 DAYS.
O THE PRESIDENT'S BILL OVERTURNS 4 OF THE SO-CALLED "REACTIONARY" CIVIL RIGHTS DECISIONS ISSUED BY THE SUPREME COURT IN 1989. - {underlined: Patterson, Lorance, Wards Cove, Crawford Fitting}
O THE PRESIDENT'S BILL OVERTURNS THE WARDS COVE DECISION BY SHIFTING THE BURDEN OF PROOF TO THE EMPLOYER IN DISPARATE IMPACT CASES.
O THE PRESIDENT'S BILL CODIFIES THE SUPREME COURT'S GRIGGS DECISION BY ADOPTING -- WORD-FOR-WORD -- THE GRIGGS DEFINITION OF "BUSINESS NECESSITY." FOR TWO YEARS, THE CIVIL RIGHTS GROUPS HAVE BEEN SCREAMING "LET'S GO BACK TO GRIGGS!" WELL, THE PRESIDENT'S BILL DOES JUST THAT.
O THE PRESIDENT'S BILL IS FAIR, RESPONSIBLE, COMPREHENSIVE. IT SHOULD BE PASSED. {end selection}
HOPE FOR COMPROMISE
O I AM STILL HOPEFUL FOR A COMPROMISE BEFORE THE CIVIL RIGHTS BILL HITS THE FLOOR NEXT WEEK.
O LAST FRIDAY, PRESIDENT BUSH INVITED SENATORS DANFORTH, SPECTER, AND MYSELF TO THE OVAL OFFICE. THE PRESIDENT REMAINS AS COMMITTED AS EVER TO WORKING-OUT A COMPROMISE AND GETTING THIS DIVISIVE ISSUE BEHIND US FOR GOOD. AS FAR AS I'M CONCERNED, THERE IS LIGHT AT THE END OF THE TUNNEL.
O THERE ARE A NUMBER OF IMPORTANT ISSUES STILL SEPARATING SENATOR DANFORTH AND THE ADMINISTRATION -- THE DEFINITION OF THE TERM "BUSINESS NECESSITY" AND JURY TRIALS IN INTENTIONAL DISCRIMINATION CASES ARE THE TWO BIGGEST OPEN ISSUES.
O ON THE JURY TRIAL ISSUE, MY MAIN CONCERN IS TRANSFORMING TITLE VII INTO A NATIONAL TORT LAW. FOR 27 YEARS, TITLE VII HAS WORKED EXTRAORDINARILY WELL WITHOUT JURY TRIALS AND WITHOUT
{page 8}
CIVIL RIGHTS COMPROMISE
O WE HAVE REACHED AGREEMENT ON THE SO-CALLED WARDS COVE ISSUES, INCLUDING THE MEANING OF THE TERM "BUSINESS NECESSITY." {underlined: BUSINESS NECESSITY} HAS BEEN AT THE CENTER OF THE CIVIL RIGHTS STORM. AFTER NEARLY TWO YEARS OF ARGUMENT, WE HAVE FINALLY COME UP WITH A COMPROMISE DEFINITION.
O WE HAVE GENERALLY ACCEPTED THE DAMAGES SCHEME IN THE DANFORTH BILL -- WITH A CAP OF $50,000 FOR THE SMALLEST EMPLOYERS AND A CAP OF $300,000 FOR THE LARGEST EMPLOYERS.
QUESTION: WHY IS THE COMPROMISE NO LONGER A QUOTA BILL?
ANSWER: WE HAVE MADE THE {underlined: BUSINESS NECESSITY TEST EASIER} FOR EMPLOYERS TO MEET BY BORROWING LANGUAGE FROM THE AMERICANS WITH DISABILITIES ACT. IF THE BUSINESS NECESSITY TEST IS TOO TOUGH TO MEET, RATIONAL EMPLOYERS WILL ADOPT QUOTAS IN ORDER TO AVOID THE EXPENSE OF LITIGATION.
{page 9}
FINAL COMPROMISE
(Amendments to S. 1745)
October 24, 1991
1. Purposes
On page 2, strike lines 18-22 and substitute the following:
"(2) to codify the concepts of "business necessity" and "job related" enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
2. Wards Cove -- Business Necessity/Cumulation/Alternative Business Practice
On page 8, strike lines 17-24.
On page 9, strike lines 1-9.
On page 9, strike lines 19-24, on page 10, strike lines 1-20 and substitute the following:
"(k) (1) (A) An unlawful employment practice based on disparate impact is established under this title only if --
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is {underlined: job related for the position in question and consistent with business necessity}; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to a different employment practice and the respondent refuses to adopt such alternative employment practice.
(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subsection (A) (i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one employment practice.
On page 10, line 22, strike the phrase ", in whole or in significant part, ".
On page 11, strike lines 1-9 and substitute the following:
"(C) The demonstration referred to by subparagraph
(A) (ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of 'alternative
{page 10}
business practice' ."
Exclusive Legislative History. The terms "business necessity" and "job related" are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove v. Atonio, 490 U.S. 642 (1989) .
When a decision-making process includes particular, functionally-integrated practices which are components of the same criterion, standard, method of administration, or test, such as the height and weight requirements designed to measure strength in Dothard v. Rawlinson, 433 U.S. 321 (1977), the particular, functionally-integrated practices may be analyzed as one employment practice.
3. Expert Fees. Add section authorizing expert fees in Section 1981 cases.
4. Damages. Technical changes pertaining to ADA coverage and application to disparate impact cases.
Revise caps on compensatory and punitive damages as follows:
Cap on Damages Size of Employer
$50,000 16-100 employees
$100,000 101-200 employees
$200,000 201-500 employees
$300,000 more than 500 employees
Page 2 -- Final Compromise
{page 11}
U.S. Senate Republican Policy Committee
Don Nickles, Chairman
Rick Lawson, Staff Director
Legislative Notice
Editor, Judy Gorman Prinkey
No. 41
October 16, 1991
S. 1745 - The Civil Rights Act of 1991
Calendar No. 236 (see also, No. 148, H.R. 1 and No. 237, S. 611)
Reported: Not reported: Senator Danforth's bill, S. 1745, was introduced September 24, 1991 and by unanimous consent read twice and placed directly on the calendar. Original cosponsors were Senators Chafee, Cohen, Durenberger, Hatfield, Jeffords, and Specter.
Not reported: H.R. 1, the Civil Rights and Women's Equity In Employment Act of 1991, having passed the House, the Act was on July 8, 1991 read the second time and placed directly on the Senate calendar.
Not reported: The President's bill, S. 611 (Dole, Hatch, Simpson, McCain, Stevens, Murkowski, Garn, McConnell, Kasten, Burns, D'Amato) was placed on the calendar on September 24, 1991 when by unanimous consent the Committee on Labor and Human Resources was discharged from further consideration of the bill.
NOTEWORTHY
· Senator Danforth has worked vigorously to craft a bill that the President will sign. His latest attempt is S. 1745; however, the Administration opposes S. 1745 as it opposed previous versions offered by Senator Danforth. Conversations continue between Senate Republicans in an attempt to work out remaining differences.
· The President has sent his own proposal to the Hill, S. 611 (Dole) and H.R. 1375 (Michel). The President has made clear his desire to sign S. 611. Key differences between what the President will and will not sign can be found in S. 1745's sections 7 and 8 (the "business necessity defense" and quotas), section 11 (access to the courthouse), and several sections that are said to create unnecessary incentives to litigation and attorney's fees. These provisions are discussed in the Bill Provisions section of this Notice.
BACKGROUND
H.R. 1 passed the House on June 5, 1991 by a vote of 273-to-158. Twenty-two Republicans, one Independent, and 250 Democrats voted aye; 143 Republicans and 15 Democrats voted no. The President has threatened to veto H.R. 1, calling it a "quota bill."
{page 12}
The two House reports (102-40, pts. 1 & 2) to H.R. 1 were written to accompany texts that did not pass the House. The House passed a Brooks-Fish substitute, not the bill that was reported from the Committee on the Judiciary nor the one reported from the Committee on Education and Labor. There is no report from a Senate committee because neither H.R. 1 nor S. 1745 was referred to a Senate committee and S. 611 was not reported from committee.
Last year the President vetoed a civil rights bill, and by one vote the Senate failed to override the veto. [See Related Votes.]
BILL PROVISIONS
This part compares most of the sections of S. 1745 with H.R. 1 (as passed by the House) and S. 611 (the Dole - Administration bill). [Note: The cases referred to are summarized in "The Civil Rights Debate of 1991: Summaries of Leading Decisions of the U.S. Supreme Court Which May Be Affected by Enactment of H.R. 1, S. 1745, or S. 611", a Policy Analysis of the Policy Committee dated Sept. 30, 1991, which is enclosed.]
Sec. 4. "Prohibition Against All Racial Discrimination in the Making and Enforcement of Contracts"
the Patterson v. McLean Credit Union issue [See p. 12 of RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 110 - essentially identical
S. 611 - sec. 6 - essentially identical.]
In Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989), the Supreme Court held that 42 U.S.C. 1981 prohibits racial discrimination only in the making and enforcement of contracts and not in other areas of a contractual relationship. Section 4 amends sec. 1981 so that it will apply to the "making, performance, modification, and termination of contracts" and all "benefits, privileges, terms, and conditions of the contractual relationship."
Section 4 also codifies the holding of Runyon v. McCrary, 427 U.S. 160 (1976), under which sec. 1981 applies to private as well as governmental acts.
Sec. 5. "Damages in Cases of Intentional Discrimination"
[Compare to: H.R. 1 - sec. 106 - but quite a different approach
S. 611 - compare sec. 8, "Additional Remedies for Harassment"]
Section 5 of S. 1745 will permit the awarding of compensatory and punitive damages in cases of intentional discrimination in employment. The person alleging the discrimination must be one of the persons protected against discrimination by Title VII or the Americans With Disabilities Act and not otherwise protected under 42 U.S.C. 1981. Punitive damages are available when the discriminatory employment practice was undertaken "with malice or with reckless indifference to the federally protected
2
{page 13}
rights" of the complaining party. Punitive damages combined with compensatory damages (for future pecuniary loses, mental anguish, and so forth) are limited to $50,000 for employers with 100 employees or fewer, to $100,000 for employers with 101 to 500 employees, and to $300,000 for employers with more than 500 employees.
Allowing awards for compensatory and punitive damages is a departure from the usual approach of Federal employment laws which have emphasized conciliation, back pay, and reinstatement. Proponents of S. 1745 point to the precedent of 42 U.S.C. 1981, a Reconstruction-Era civil rights statute. See, e.g., S. Rept. 101-315, p. 95-96 (1990) (Minority Views).
Section 8 of S. 611 would provide a monetary remedy in equity (capped at $150,000) for harassment in the workplace based on race, color, religion, sex, or national origin. The term "harass" encompasses "the subjection of an individual to conduct that creates a working environment that would be found intimidating, hostile or offensive by a reasonable person." The monetary remedy may be given by a court in the exercise of its "equitable discretion" if justified by the equities, the purposes of the Act, and the public interest. No unlawful employment practice "shall be found to have occurred if the complaining party failed to avail himself or herself of a procedure, of which the complaining party was or should have been aware, established by the employer for resolving complaints of harassment in an effective fashion within a period not exceeding 90 days."
Sec. 6. "Attorney's Fees"
[Compare to: H.R. 1 - fees provided, but no separate section required
S. 611 - no comparable provision]
Section 6 amends 42 U.S.C. 1988 to provide that attorney's fees available under the new law created by section 5 of this bill will be available on the same basis as fees under other civil rights statutes.
Sec. 7. "Definitions"
the Wards Cove issue, primarily [see pp. 2-7 of enclosed RPC Policy Analysis.]
[Compare to: H.R. 1 - sec. 101
S. 611 - sec. 3]
The definitions of section 7 are necessary for determining unlawful employment practices under section 8. The key term, "required by business necessity", is set out below for each of the three bills:
S. 1745
S. 1745, sec. 7, to be codified at 42 U.S.C. 2000e(o):
"(0) The term 'required by business necessity' means-
3
{page 14}
"(1) in the case of employment practices that are used as qualification standards, employment tests, or other selection criteria, the challenged practice must bear a manifest relationship to the employment in question; and
"(2) in the case of employment practices not described in paragraph (1), the challenged practice must bear a manifest relationship to a legitimate business objective of the employer."
The first paragraph of this definition of business necessity is based on language in the Americans with Disabilities Act, Pub. L. 101-336, sec. 102(b)(6), 104 Stat. 332, and pointed to as one of the key features of S. 1745. [See Related Votes section]
The term "the employment in question" is defined in S. 1745 to mean-
"(1) the performance of actual work activities required by the employer for a job or class of jobs; or
"(2) any behavior that is important to the job, but may not comprise actual work activities."
S. 1745 also defines "complaining party", "demonstrates", and "respondent".
H.R. 1
H.R. 1, sec. 101, to be codified at 42 U.S.C. 2000e(p):
"(0)(1) The term 'required by business necessity' means the practice or group of practices must bear a significant and manifest relationship to the requirements for effective job performance. (The term "requirements for effective job performance" is also defined in section 101 of H.R. 1.)
"(2) Paragraph (1) is meant to codify the meaning of, and the type and sufficiency of evidence required to prove, 'business necessity' as used in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and to overrule the treatment of business necessity as a defense in Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989)."
S. 611
S. 611, sec. 3, to be codified at 42 U.S.C. 2000e(n):
"(n) The term 'justified by business necessity' means that the challenged practice has a manifest relationship to the employment in question or that the respondent's legitimate employment goals are significantly served by, even if they do not require, the challenged practice."
Sec. 8. "Burden of Proof in Disparate Impact Cases"
the Wards Cove Issue [see pp. 2-7 of enclosed RPC Policy Analysis.]
[Compare to: H.R. 1 - sec. 102
S. 611 - sec. 4]
Section 8 codifies in Title VII of the Civil Rights Act of 1964 for the first time a "disparate impact" approach to employment discrimination, the approach the Supreme Court adopted in Griggs v. Duke Power. Senator Danforth claims that his bill is a true codification of the rules of Griggs. Opponents claim that the Danforth bill is not true to Griggs.
4
{page 15}
S. 1745 does not define "disparate impact" but relies on current law, which is based on the Equal Employment Opportunity Commission's definition of "adverse impact": "A selection rate for any race, sex, or ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact. ... " 29 C.F.R. 1607.4.D. (Uniform Guidelines on Employee Selection Procedures, 1978).
Section 8 requires that a claim of disparate impact can be made out only if the complaining party demonstrates that an employment practice (which may be the entire decisionmaking process) causes a "disparate impact" on the basis of race, color, religion, sex, or national origin and either (a), the respondent fails to demonstrate that the practice is "required by business necessity" (here is where the definition in sec. 7 comes in), or (b), in a case where the practice is justified by business necessity, the respondent fails to adopt a different employment practice which the complainant has shown (1) to "have less disparate impact," and (2) to "make a difference in the disparate impact that is more than negligible," and (3) to serve the respondent's interests as well as the previous practice. "If the respondent demonstrates that a specific employment practice does not cause, in whole or in significant part, the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity."
Under sec. 8, "business necessity" may be used as a defense only against a claim of disparate impact discrimination, not intentional discrimination, and a rule barring the employment of "an individual who currently and knowingly uses or possesses a controlled substance" illegally shall be considered an unlawful employment practice only if the rule was adopted or applied with an intent to discriminate.
Sec. 9. "Prohibition Against Discriminatory Use of Test Scores" (Race Norming)
[Compare to: H.R. 1 - sec. 116
S. 611 - no comparable provision]
Section 9 of S. 1745 and section 116 of H.R. 1 are similar but importantly different. Senator Danforth's provision is essentially identical to a provision in the Michel substitute amendment that was defeated on the House floor. In turn, the Michel provision was identical to Congressman Henry Hyde's committee amendment, which also was defeated. And Congressman Hyde's language built on work done in the Senate by Senator Simpson (see S. 478). H.R. 1, on the other hand, has a familiar melody but the lyric is foreign.
H.R. 1 is restricted to "written employment tests" and forbids the juggling of test scores of "individual test takers" only. That phraseology makes it sound suspiciously like the juggling of individual scores is forbidden but group juggling is permissible. Congressman Hyde, perhaps the strongest critic of "race norming" in the House, opposed the House-passed language. See, 137 Cong. Rec. H 3931 (daily ed. June 5, 1991).
5
{page 16}
Sec. 10. "Clarifying Prohibition Against Impermissible Consideration of Race, Color, Religion, Sex, or National Origin in Employment Practices"
the Price Waterhouse issue [see p. 7 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 103
S. 611 - no comparable provision]
Section 10 allows a complainant to show that an employment practice is unlawful if race, color, religion, sex, or national origin "was a motivating factor" even though "other factors also motivated" the practice. Where the defendant demonstrates that it would have taken the same action in the absence of an impermissible motive, the relief available to the complainant is limited to declaratory or injunctive relief and attorney's fees and costs which are "directly attributable only to the pursuit of" this type of claim. In such cases, compensatory and punitive damages are not available to the complainant and no order may be issued that requires the hiring or reinstatement of the complainant. Section 10 is substantially the same as a provision in S. 3239, the Administration's civil rights bill, which was introduced by Senator Dole on October 24, 1990, the day the Senate failed to override the veto.
Sec. 11. "Facilitating Prompt and Orderly Resolution of Challenges to Employment Practices Implementing Litigated or Consent Judgments or Orders"
the Martin v. Wilks issue [see p. 8 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 104 - on the same subject, but different
S. 611 - sec. 5 - on the same subject, but significantly different]
With regard to claims challenging employment practices that are within the scope of a consent decree, the Danforth bill will preclude claims (1) by persons who had actual notice of the decree sufficient to apprise such persons that their interests might be affected adversely and (2) by persons whose interests were deemed by a court to have been represented adequately by another person on the same legal, and similar factual, grounds. Nothing in the section (1) alters the standards for intervention under the Federal Rules of Civil Procedure, (2) affects the rights of parties to the case, (3) prevents a challenge to any order on the ground of collusion, fraud, transparent invalidity, or lack of subject matter jurisdiction, or (4) authorizes the denial of the due process of law required by the Constitution.
A quite different approach is taken by sec. 5 of S. 611, which reads in full:
"For purposes of determining whether a litigated or consent judgment or order resolving a claim of employment discrimination because of race, color, religion, sex, national origin, or disability shall bind only those individuals who were parties to the judgment or order, the Federal Rules of Civil Procedure shall apply in the same manner as they apply with respect to other civil causes of action."
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Sec. 12."Protection of Extraterritorial Employment"
the Arabian American Oil Co. issue [see p. 13 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 119 - appears identical
S. 611 - no comparable provision]
Section 12 will extend Title VII to reach the employment of citizens of the United States who work for covered employers in foreign countries. (Labor organizations, employment agencies, and other entities covered by the 1964 Act will be covered by the amendment, as well.) An exception is made for actions taken to comply with the laws of the foreign country.
Sec. 13. "Education and Outreach"
[Compare to: H.R. 1 - sec. 204 - essentially identical
S. 611 - no comparable provision]
Section 13 requires the EEOC to conduct "educational and outreach activities" to individuals who historically have been victims of employment discrimination but who have not been "equitably served" by the Commission and to individuals on whose behalf the Commission has authority to enforce any law prohibiting employment discrimination. To accomplish these purposes, grants may be made to local governments and other public and nonprofit organizations.
Sec. 14."Expansion of Right to Challenge Discriminatory Seniority Systems"
the Lorance issue [see p. 8 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 105 - on the same subject, but significantly different
S. 611 - sec. 7 - same approach, different language]
Section 14 enlarges the time for challenging a seniority system "that has been adopted for an intentionally discriminatory purpose" in violation of the Civil Rights Act of 1964 "whether or not that discriminatory purpose is apparent on the face of the seniority provision." Instead of the statute of limitations beginning to run when the seniority system was implemented, sec. 14 provides that the unlawful employment practice will be deemed to have occurred when the "system is adopted, when an individual becomes subject to [it], or when a person aggrieved is injured by the application" of the system.
Sec. 15. "Authorizing Award of Expert Fees"
Crawford Fittings & Champion International Corp. issue [see p. 9 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 107 - this provision is broader
S. 611 - sec. 9 - limits expert witness fees to $300 per day]
Section 15 allows the awarding of expert witness fees in Title VII cases and thus changes the result in Champion Int'l Corp. v. Int'l Woodworkers of America (a Title VII case), which was decided together with Crawford Fittings Co. v.J.T. Gibbons, Inc. (an antitrust case).
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Sec. 16. "Providing for Interest and Extending the Statute of Limitations in Actions Against the Federal Government"
the Library of Congress v. Shaw issue [see p. 12 of enclosed RPC Policy Analysis]
[Compare to: H.R. 1 - sec. 108 - contains additional prohibition on prejudgment interest on compensatory damages
S. 611 - sec. 10 - essentially identical to S. 1745]
Section 16 provides that the Federal Government shall be liable for interest payments "to compensate for delay in payment" the same as a private party. Also, the filing period in actions against the Federal Government is increased from 30 days to 90 days.
Sec. 17. "Notice of Limitations Period Under the Age Discrimination in Employment Act of 1967"
[Compare to: H.R. 1 - sec. 117
S. 611 - no comparable provision]
Section 17 requires the EEOC to notify a person whose charge is dismissed by the EEOC that he or she may bring a civil action against the employer or other respondent if such action is brought within 90 days of the notice.
Under current law, the running of the statute of limitations is suspended for up to one year while a complaint is pending before the EEOC. Section 17 will allow the statute of limitations to be suspended during the entire time that a complaint is pending.
Sec. 18. "Lawful Court-Ordered Remedies, Affirmative Action, and Conciliation Agreements Not Affected"
[Compare to: H.R. 1 - sec. 111
S. 611 - no comparable provision]
Section 18 reads in its entirety: "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."
Sec. 19. "Coverage of Congress and the Agencies of the Legislative Branch"
[Compare to: H.R. 1 - sec. 114 - appears identical
S. 611 - sec. 11 - related but importantly different]
Section 19 applies the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the Rehabilitation Act to employment in the Senate; and applies the Civil Rights Act of 1964 to employment in the House. In each case, complaints are to be handled through the process established by Senate or House rules, and are not to be handled through the ordinary administrative and judicial processes that apply outside of the Legislative Branch.
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Section 11 of S. 611 "extends the protections of Title VII to congressional employees on the same basis that they extend to Executive branch employees. The Executive branch, like private employers and state and local governments, is forbidden by law to discriminate on the basis of race, color, religion, sex, or national origin. ...
"In addition to setting a helpful example, and providing congressional employees with the same rights enjoyed by other Americans, coverage under Title VII will provide the Congress with the valuable experience of living under the same rules that it imposes on other employers. .. . " 137 Cong. Rec. S 3026 (daily ed. Mar. 12, 1991) (section-by-section analysis of S. 611).
Under sec. 11 of S. 611, Congress could establish its own internal mechanisms for enforcing Title VII (the Executive Branch would have absolutely no role in enforcement), but congressional employees would have access to the Federal courts. "For that reason, any objection to this section on separation- of-powers grounds would not be well-founded." Id.
Sec. 22. "Effective Date"
[Compare to: H.R. 1 - sec. 113 - retroactive applications, generally
S. 611 - sec. 14]
Section 22 provides that the provisions of the Act will take effect upon enactment unless otherwise specifically provided. It appears that only sec. 12 (extraterritorial coverage) has a separate provision, yet even sec. 12 applies only prospectively. S. 611 applies only prospectively, as well. H.R. 1, on the other hand, contains a fairly complicated formula for applying different provisions of the act retroactively, the idea being to make the changes effective on the dates of the Supreme Court's decisions.
Provisions Not Included from H.R. 1
The following sections of H.R. 1, as passed by the House, are not included in Senator Danforth's bill, S. 1745:
- New Rules of Construction for Civil Rights Laws, sec. 109
- Affirmative Action and Quotas, sec. 111
- Discriminatory Use of Tests, sec. 115
- Expert Witness Fees Under Section 1988 (see, West Virginia University Hospital v. Casey, discussed on p. 9 of enclosed RPC Policy Analysis), sec. 120
- Title II, establishing a "glass ceiling" commission, requiring the Department of Labor to provide comparable worth ("pay equity") technical assistance, and requiring certain reports from the EEOC and the Office of Federal Contract Compliance Programs
- Substantial portions of sec. 107 ("Clarifying Attorney's Fee Provision") are omitted from S. 1745, as well.
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ADMINISTRATION POSITION
A Statement of Administration Policy was not available at press time.
OTHER VIEWS
Redefining the Meaning of Discrimination
In part 1 of the House report on H.R. 1, Congressman Richard Armey explained that both H.R. 1 and, to a lesser extent, the President's bill ratify a definition of discrimination that is relatively new and undoubtedly divisive. Portions of the Congressman's views on the dangers of "the new discrimination" are reprinted below:
" ... In my view, the chief problem with H.R. 1 - a problem which also afflicts, albeit to a much lesser degree, the Administration substitute - is that it would overturn the traditional definition of discrimination. While a finding of discrimination has required that a person actually intended to discriminate, under this legislation such a finding can be based largely on numbers. If only a certain percentage of an employers workforce are members of a minority group, the employer can be found guilty of discrimination. This is quota legislation. However noble the intentions of its sponsors, it will increase rather than diminish racial tension in our society.
"This change in definition has meant that the non-discrimination principle of equal treatment is turned on its head effectively to require the very behavior that federal legislative enactments specifically proscribe. It now requires the color- and gender-conscious treatment of individuals in order that statistically proportionate representation can be achieved. Thus the rights of individuals to equal treatment has been subjugated to a new right of proportional representation for groups. . . .
"H.R. 1, and the administration substitute H.R. 1375, would stack the deck unfairly against employers. It would make it more difficult for them to defend themselves successfully against disparate impact suits (and hence more likely that they will lose and have to pay huge sums to the plaintiffs in back pay and attorneys' fees). In addition, it would also make the cost to the employer defending against such suits - even when the employers defense is successful - even greater than it is at present. Quite understandably many employers would conclude that defending against disparate impact suits is not worth the effort and would instead simply alter their hiring process to produce the "right" mix of race and sex within each segment of their work force. This result is clearly contrary to the meaning and specific language of anti-discrimination statutes, and does not bode well for racial harmony in the United States.
"From both a legal and practical basis it is clear that the consequences of their redefinition of discrimination is substantial, and should be addressed as such. The premier civil rights issue of the day, as well as the foreseeable future is the question of whether discrimination shall be defined as it has traditionally been understood (and one which the court seems to belatedly endorse) or rather in terms of statistically disproportionate effects. This issue is of the utmost importance for civil rights legislation because if it is decided that discrimination is defined primarily to mean disproportionate impact, the result will be the virtual implementation of race-conscious preferential treatment as a permanent feature of American society. This will permanently require
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intentional discrimination for or against individuals on account of their race, gender, and other ostensibly prohibited criteria so that there will be no unintentional discrimination against groups. The discrimination previously understood to be inherently invidious and expressly prohibited by law would become the legally sanctioned routine." H. Rept. 102-40, part 1, pp. 162-64 (1991) ("Additional Views by Mr. Armey on H.R. 1").
RELATED VOTES
S. 2104, Civil Rights Act of 1990, 101st Congress
REJECTED Motion to table Ford 2d-degree amendment 18 Yeas 74 Nays
Note: Ford amendment extended coverage of civil rights laws to Senate employees; complaints to be filed with Senate Ethics Committee, not EEOC or Federal courts. Vote #144 4 Dems 46 Dems
07/10/90 14 Reps 28 Reps

ADOPTED Motion to table Grassley amendment 63 Yeas 26 Nays
Note: Would have provided Senate employees with same protections, remedies against discrimination as those available to private sector employees. Vote #145 42 Dems 6 Dems
07/10/90 21 Reps 20 Reps

ADOPTED Cloture on Kennedy-Jeffords Substitute 62 Yeas 38 Nays
Note: Substitute redefined burden of proof in disparate impact cases, barred reconsideration of consent decrees, and allowed compensatory damages under Title VII of 1964 Civil Rights Act. Vote #158 54 Dems 1 Dems
07/17/90 8Reps 37Reps

ADOPTED Kennedy 2d-degree amendment 60 Yeas 40 Nays
Note: Kennedy 2d-degree amendment (to Hatch amendment) limited access to the courts to challenge consent decrees or judgments. Vote #159 51Dems 4Dems
07/17/90 9Reps 36Reps

ADOPTED Kennedy amendment to Kennedy Substitute 65 Yeas 34 Nays
Note: Kennedy amendment to perfect Kennedy-Jeffords substitute with "compromise" language. The Kennedy-Jeffords substitute was subsequently adopted by voice vote. Vote #160 55Dems 0Dems
07/18/90 10Reps 34Reps

ADOPTED Civil Rights Act of 1990 (final passage) 65 Yeas 34 Nays
Note: On August 3, 1990, the House passed S. 2104 by voice vote after substituting H.R. 4000 for Senate bill. H.R. 4000, earlier on August 3, passed House 272-154. Vote #161 55Dems 0Dems
07/18/90 10Reps 34Reps

REJECTED Dole Motion to Recommit Conference Report 35 Yeas 61 Nays
Note: Vote on motion to recommit with instructions to substitute reported version with President's Bill.
Vote #275 0 Dems 53Dems
10/16/90 35 Reps 8 Reps
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ADOPTED Conference Report (final passage) 62 Yeas 34 Nays
Note: The House adopted the conference report on October 17,1990 by a 273-154 margin. Vote #276 53Dems 0Dems
10/16/90 9Reps 34Reps

SUSTAINED Veto, Civil Rights Act of 1990 66 Yeas 34 Nays
Note: S. 2104 was vetoed by President Bush on October 22, 1990. Vote #304 55Dems 0Dems
10/24/90 11Reps 34Reps

S. 933, Americans with Disabilities Act of 1990, 101st Congress
As previously discussed, S. 1745 draws on some of the language from the Americans With Disabilities Act, Pub. L. 101-336, which initially passed the Senate on September 7, 1989, by a vote of 76-to-8, Roll call Vote No. 173. (Two roll call votes on related matters preceded the vote on final passage.) On July 13, 1990, the Senate adopted the conference report on the ADA by roll call vote of 91-to-6, Roll call Vote No. 152.
POSSIBLE AMENDMENTS
At press time, no amendments had been printed. If history is any guide, there may be:
- a substitute amendment incorporating the President's bill (last year, introduced by Senator Dole);
- a due process-Martin v. Wilks amendment (last year, introduced by Senator Hatch); and
- a quotas amendment (this year, twice brought to the Floor by Senator Helms; see Roll call Vote No. 110, June 26, 1991, and Roll call Vote No. 187, Sept. 11, 1991).
Senator Grassley has said that he has plans on introducing a coverage-of-Congress amendment, as he has done in the past.
Senator Murkowski plans on introducing an amendment that would set the effective date of the disparate impact sections so that the Wards Cove Packing Co. will not have to re-litigate facts and law it has won on repeatedly.
Staff Contact: Lincoln Oliphant, 224-2946
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U.S. Senate Republican Policy Committee
Don Nickles, Chairman Rick Lawson, Staff Director
Policy Analysis
September 30, 1991
The Civil Rights Debate of 1991:
Summaries of Leading Decisions of the U. S. Supreme Court Which May Be Affected by Enactment of H.R. 1, S. 1745, or S. 611
H.R. 1, the Civil Rights and Women's Equity In Employment Act of 1991, passed the House on June 5, 1991, and has been pending on the Senate Calendar since early July. On September 24, two other civil rights bills were placed on the Calendar, S. 611, the Administration's proposal (Dole), and S. 1745 (Danforth).
Each of these three bills responds to a handful of decisions of the Supreme Court of the United States, though not the same handful. The bills do more than just respond to the Court, but the decisions of the Court that Senators or Representatives or the President object to are at the heart of the current debate about a civil rights bill.
This paper summarizes the relevant majority opinions of the Court which will be affected if the Congress enacts the House-passed civil rights bill, H.R. 1. Note that whatever vehicle the Senate acts on, the Wards Cove case, and its impact on the Griggs case, are central. The meaning of Wards Cove is the primary dispute that separates the sides in this debate.
A substantial portion of the cases that a civil rights bill is likely to address are not about victims of discrimination but about attorneys and their fees (and witnesses and their fees). For example, H.R. 1, as passed by the House, will reverse the result in the five cases on fees that are summarized in this paper, beginning on page 9. (The Shaw case, which is summarized on page 12, is also a fees case, at least ostensibly.)
Below is a listing of the cases described in this paper, the issues of relevancy, and where those issues may be found in the three civil rights bills before the Senate.
Wards Cove Packing Co. v. Atonio: Definitions and Burden of Proof in Disparate-Impact Cases
Sections 101 and 102 of H.R. 1 (as passed by the House)
Sections 3 and 4 of S. 611 (Dole - Administration)
Sections 7 and 8 of S. 1745 (Danforth)
Price Waterhouse v. Hopkins: Permissible Use of Impermissible Motive
Section 103 of H.R. 1 (as passed by the House)
Not a Part of S. 611 (Dole - Administration)
Section 10 of S. 1745 (Danforth)
Martin v. Wilks: Challenging Judicial Orders, Access to Court
Section 104 of H.R. 1 (as passed by the House)
Section 5 of S. 611 (Dole - Administration)
Section 11 of S. 1745 (Danforth)
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Lorance v. AT&T Technologies: Statute of Limitations
Section 105 of H.R. 1 (as passed by the House)
Section 7 of S. 611 (Dole - Administration)
Section 14 of S. 1745 (Danforth)
Crawford Fittings, West Virginia Univ. Hosp., Marek v. Chesny, Jeff D., & Zipes: Attorney's Fees and Expert Witness Fees
Sections 107 and 120 of H.R. 1 (as passed by the House)
Section 9 of S. 611 (Dole - Administration)
Sections 6 & 15 of S. 1745 (Danforth)
Library of Congress v. Shaw: Interest Being Charged Against the Federal Government
Section 108 of H.R. 1 (as passed by the House)
Section 10 of S. 611 (Dole - Administration)
Section 16 of S. 1745 (Danforth)
Patterson v. McLean Credit Union: Racial Discrimination in the Making and Enforcement of Contracts
Section 110 of H.R. 1 (as passed by the House)
Section 6 of S. 611 (Dole - Administration)
Section 4 of S. 1745 (Danforth)
EEOC v. Aramco: Extraterritorial Employment
Section 119 of H.R. 1 (as passed by the House)
Not a Part of S. 611 (Dole - Administration)
Section 12 of S. 1745 (Danforth)
Wards Cove: An Examination of Disparate Impact
Much of the dispute about a civil rights bill for this Congress (and last) revolves around one case, Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989).
Frank Atonio worked on the cannery line for the Wards Cove Packing Company, an Alaskan salmon cannery. In 1974, Atonio and other employees sued Wards Cove for discrimination on the grounds of race and ethnicity.
The Wards Cove cannery operates only during the summer months when the salmon run. Jobs at the canneries are of two general types: "cannery jobs," which are unskilled positions on the cannery line, and "noncannery jobs," which are mostly skilled positions such as machinists, engineers, quality control personnel, carpenters, bookkeepers, and so on. Cannery jobs are filled predominantly by nonwhite workers, Filipinos and Alaska Natives; noncannery jobs are filled predominantly by white workers. Virtually all of the noncannery jobs pay more than cannery positions. Because of the intense work schedule during the few weeks that the salmon are running and because the canning plants are remote, workers are housed at the cannery sites. The noncannery workers and the cannery workers live in separate dormitories and eat in separate mess halls.
Atonio alleged that a variety of Wards Cove's hiring and promotion practices (e.g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, and a practice of not promoting from within) were responsible for the racial stratification of the work force and were illegal under Title VII of the Civil Rights Act of 1964.
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Disparate Impact
Atonio's claims were advanced under both the disparate-treatment and disparate-impact theories of Title VII liability. Disparate treatment is discrimination with intent to discriminate invidiously, e.g., treating persons of different races differently because of their race. No court has found that Wards Cove discriminated intentionally. Disparate impact is quite different, however. Disparate impact signifies that neutral employment criteria which are used without any discriminatory animus nevertheless have a different effect on minorities or women. These neutral criteria, adopted and employed without any intent to discriminate, still may be unlawful under the disparate-impact theory of Title VII, first described by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971) (see page 6). Atonio is a disparate-impact case.
After the Supreme Court ruling on Wards Cove, a Seattle court threw out the case. Atonio appealed and the appeal is pending.
Because of the importance of Wards Cove, several long excerpts are reprinted below. When Frank Atonio's case reached the Supreme Court, the Court made four important determinations:
Determination 1. Use of Statistics Could Lead to Quotas
The Court of Appeals compared the racial make-up of the cannery work force with the racial make-up of the noncannery work force and concluded that Atonio had made out a prima facie case of disparate-impact discrimination. The Supreme Court, while acknowledging that "statistical proof can alone make out a prima facie case," said that the Court of Appeals had erred because the "proper comparison is between the racial composition of the at-issue jobs and the racial composition of the qualified population in the relevant labor market." The Court continued:
"If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault), petitioners' employment practices cannot be said to have had a 'disparate impact' on nonwhites.
"It is clear to us that the Court of Appeals' acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled noncannery jobs at issue here, the cannery work force in no way reflected 'the pool of qualified job applicants' or the 'qualified population in the labor force.' Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers - and the long list of other 'skilled' noncannery positions found to exist by the District Court - by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault), petitioners' selection methods or employment practices cannot be said to have had a 'disparate impact' on nonwhites.
"If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault), petitioners' selection methods or employment practices cannot be said to have had a 'disparate impact' on nonwhites.
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"Business Necessity"
"Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals' theory, at the very least, would mean that any employer who had a segment of his work force that was - for some reason - racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the 'business necessity' of the methods used to select the other members of his work force. The only practicable option for many employers will be to adopt racial quotas, insuring that no portion of his work force deviates in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII. See 42 U.S.C. Sec. 2000e-2(j). The Court of Appeals' theory would 'leave the employer little choice ... but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.'
Quotas
"The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer's work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer's other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer's selection mechanism probably does not operate with a disparate impact on minorities. Where this is the case, the percentage of nonwhite workers found in other positions in the employer's labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past." Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 57 USLW 4583, 4586 (1989) (emphasis by the Court) (citations & footnotes omitted).
"The only practicable option for many employers will be to adopt racial quotas, insuring that no portion of his work force deviates in racial composition from the other portions."
Determination 2. Identifying the Cause of the Disparate Impact
In a disparate-impact case, the Supreme Court said that plaintiffs must point to specific employment practices that cause the discriminatory disparate impact, especially where the employer uses subjective criteria:
" '[W]e note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force. The plaintiff must begin by identifying the specific employment practice that is challenged ... Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'
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"Our disparate-impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title VII by demonstrating that, 'at the bottom line,' his work force is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), a Title VII plaintiff does not make out a case of disparate impact simply by showing that, 'at the bottom line,' there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff's prima facie case in a disparate-impact suit under Title VII." Id. at 4587 (emphasis by the Court) (citations omitted).
"A plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact."
Determination 3. Business Must Justify the Employment Practice
After a plaintiff has made out a prima facie case of disparate-impact discrimination the employer can avoid liability by showing that the practice that caused the disparate impact is justified. This part of the Court's opinion has generated months of controversy and a couple of dozen proposals for reform. The question is this, what legal test must the employer meet to justify a business practice that has a disparate impact on a protected group? The Court said:
"Though we have phrased the query differently in different cases, it is generally well-established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e.g., Watson v. Fort Worth Bank & Trust Co., 487 U.S., at 977; New York Transit Authority v. Beazer, 440 U.S., at 587 n. 31; Griggs v. Duke Power Co., 401 U.S., at 432. The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be 'essential' or 'indispensable' to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above.
"The dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. The touchstone of this inquiry is a reasoned review of the employer's justification."
"In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. ... " Id. at 4588 (citation omitted).
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Determination 4. A Business May Have to Adopt an Alternative Practice
Even if an employer can justify a business practice the plaintiff may prevail by putting forth an alternative that will satisfy the employer's legitimate employment goals without the disparate impact. The Court said:
"Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners' business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that 'other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate [hiring] interest[s];' by so demonstrating, respondents would prove that '[petitioners were] using [their] tests merely as a "pretext" for discrimination.'
"Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners' chosen hiring procedures in achieving petitioners' legitimate employment goals. Moreover, '[f]actors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals.' 'Courts are generally less competent than employers to restructure business practices;' consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff's alternate selection or hiring practice in response to a Title VII suit." Id. at 4588 (citations omitted).
"'Courts are generally less competent than employers to restructure business practices;' consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff's alternate hiring practice."
Griggs : The Genesis of Disparate Impact
As noted above, the disparate-impact theory of Title VII was first explicated in Griggs v. Duke Power Co., 401 U.S. 424 (1971), where the Supreme Court held that the company's neutral employment criteria violated Title VII because they fell with greater impact on racial minorities.
"The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."
The neutral criteria in Griggs were a high school diploma and satisfactory completion of two tests, the Wonderlic Personnel Test (a general intelligence test) and the Bennett Mechanical Comprehension Test. Neither test was intended to measure the ability to learn or to do a particular job or groups of jobs. The Court said:
" ... The [Civil Rights] Act [of 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." Id. at 431.
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"On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. .. . " Id. at 431.
". . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." Id. at 432.
"What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract."
" ... Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. . . . " Id. at 432.
"Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." Id. at 436.
As previously stated, the effect of Wards Cove on Griggs, if any, is the primary dispute that separates the sides in this civil rights debate.
Price Waterhouse : Taking the Plaintiff's Gender Into Account
Ann Hopkins was a senior manager in the Washington, D.C. office of the national accounting firm, Price Waterhouse. When she was first proposed for partnership, her candidacy was held for reconsideration the following year. (Of the 88 persons proposed for partnership in the year that Hopkins was proposed, 53 percent were advanced to partner, 24 percent were rejected, and 23 percent were put on "hold.") The following year, the partners failed to repropose her and she sued under Title VII of the Civil Rights Act of 1964, charging that she had been discriminated against on the basis of sex in the partnership decision. The lower courts agreed that "sex stereotyping" had played a role in the partnership decision.
Impermissible Motive
The Supreme Court held that even if sex discrimination plays a role in an employment decision the employer "may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 57 USLW 4469, 4478 (decided May 1, 1989) (plurality opinion). The Supreme Court ruling sent this case back to the lower courts for rehearing where Ann Hopkins won her case.
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Martin v. Wilks: A Consent Decree Does Not Preclude Other Claims
In 1974 the National Association for the Advancement of Colored People (NAACP) and others brought suit against the City of Birmingham, Alabama alleging unlawful racial discrimination in hiring and promotion in various public service jobs. After trial, but before judgment, the City and the plaintiffs entered into a consent decree that set forth short- and long- term hiring and promotion goals for blacks as firefighters. A group of white firefighters brought suit against the city alleging that the consent decree illegally discriminated against them by denying them promotions. "The City admitted to making race conscious employment decisions, but argued [that] the decisions were unassailable because they were made pursuant to the consent decree." The district court held that the consent decree did indeed insulate the City.
Access to Court
The Supreme Court reversed, holding that since the white firefighters were neither designated as a party nor joined as a party by service of process their independent, collateral claims were not precluded. "A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Martin v. Wilks, 109 S. Ct. 2180, 57 USLW 4616, 4617 (decided June 12, 1989) (5-to-4 decision).
Lorance : Waiting Too Long To Sue
Patricia Lorance began work for AT&T Technologies in the early 1970s as an hourly wage employee. Until 1979, all hourly wage employees accrued seniority exclusively on the basis of years spent in the plant, and a worker who was promoted retained his or her plantwide seniority. In 1979, the company and the union agreed to modify the seniority rules. Thereafter, a "tester's" seniority was to be determined in general by the length of time in the tester's position, not by length of plantwide service. Lorance and other women became testers during 1978-1980 but after an economic downturn in 1982, they were demoted. If the former seniority program had been in place they would not have been demoted because they would have had the advantage of their plantwide seniority.
Statute of Limitations
Lorance and the other women complained to the EEOC in April, 1983 and sued in September, 1983, alleging that the change in the seniority system was illegal. The lower courts granted summary judgment to AT&T, however, because Lorance had waited too long to sue. The statute requires charges to be filed with the EEOC within 180 days of the alleged discriminatory practice (300 days if proceedings are first initiated with a state or local agency). For purposes of the statute, the relevant "discriminatory practice" was held to have occurred when the new seniority system was adopted, not when they were applied to Lorance to her detriment.
The Supreme Court agreed that Lorance complained too late: "When a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption [of the system] which triggers the limitations period. Because the claimed invalidity of the facially
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nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period." Lorance v. AT&T Technologies, 109 S. Ct. 2261, 57 USLW 4654, 4657 (decided June 12, 1989).
Crawford Fittings; West Virginia Univ. Hosp., Marek v. Chesny; Jeff D .; & Zipes: Attorney's Fees and Witness Fees
Crawford Fittings: "Expert Witness" Fees
Witness J.T. Gibbons Company sued Crawford Fittings Company for violations of the Fees antitrust laws. Gibbons lost. The International Woodworkers of America sued Champion International Company for racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The Woodworkers lost. Thereafter, in each case, the winners sought from the losers expert witness fees in excess of $30 per day which is the apparent Federal-law limit set by 28 U.S.C. 1920 and 28 U.S.C. 1821. The Supreme Court held that "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of section 1821, absent contract or explicit statutory authority to the contrary." Crawford Fittings Co., v. J.T. Gibbons, Inc., 482 U.S. 437, 439 (1987) (together with Champion International Corp. v. International Woodworkers of America).
West Virginia University Hospital: "Expert Witness" Fees
West Virginia University Hospital sits in Morgantown, near the Pennsylvania border, and is often used by Medicaid recipients who live in Pennsylvania. In 1986 Pennsylvania's Department of Public Welfare notified the hospital of new Medicaid reimbursement schedules for Pennsylvanians who receive care at the hospital. After exhausting administrative remedies, the hospital sued the Governor of Pennsylvania and others alleging a violation of 42 U.S.C. 1983 (which is quoted in the Marek v. Chesny section, below). The West Virginians won their lawsuit, and the district court awarded them over $100,000 in expert witness fees. The hospital had retained Coopers & Lybrand, a national accounting firm, and three doctors who specialize in hospital finance to assist in preparing its lawsuit. The district court found that the services of these experts were "essential" to the success of the lawsuit.
The Supreme Court held that expert witness fees are not available under 42 U.S.C. 1988 because there is no explicit statutory authorization and the statute is unambiguous. Section 1988 does authorize a "reasonable attorney's fee" but that term does not encompass expert witness fees. Expert witness fees are, therefore, limited to $30 per day as provided by 28 U.S.C. 1920(3) and 1821(b). West Virginia Univ. Hosp. v. Casey, 111 S. Ct. 1138, 59 USLW 4180 (decided March 19, 1991).
Section 1988 does authorize a "reasonable attorney's fee" but that term does not encompass expert witness fees.
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Marek v. Chesny: Attorney's Fees After Settlement Offer
Attorney's Fees
Police officer Marek and two other officers answered a domestic disturbance call and shot and killed Chesny's adult son. Chesny filed suit against the officers alleging a violation of 42 U.S.C. 1983 ("Every person who, under color of any [State law], [deprives] ... any citizen of the United States of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... "). Before trial, the officers made a timely offer to settle the suit for a sum of $100,000. Chesny refused the offer and went to trial where he was awarded $5,000 on the state-law wrongful death claim, $52,000 for the Section 1983 violation, and $3,000 in punitive damages. Chesny's attorneys then filed a request for nearly $172,000 in costs, including attorney's fees. This amount included costs incurred after Chesny rejected the settlement offer.
The Supreme Court held that Chesny, not Marek, must bear the costs of attorney's fees incurred after the offer was rejected. Rule 68 of the Federal Rules of Civil Procedure provides that if a timely pretrial settlement offer is not accepted and "the judgment finally obtained by the offeree [Chesny] is not more favorable than the offer, the offeree must pay the cost incurred after the making of the offer." The Court said that attorney's fees are part of the "costs" anticipated by Rule 68. "The plain purpose of Rule 68 is to encourage settlement and avoid litigation." Marek v. Chesny, 473 U.S. 1, 5 (1985). "Application of Rule 68 will serve as a disincentive for the plaintiff's attorney to continue litigation after the defendant makes a settlement offer. There is no evidence . . . that Congress, in considering [42 U.S.C.] section 1988 [the Civil Rights Attorney's Fees Act], had any thought that civil rights claims were to be on any different footing from other civil claims insofar as settlement is concerned. Indeed, Congress [in a House report] made clear its concern that civil rights plaintiffs not be penalized for 'helping to lessen docket congestion' by settling their cases out of court." Id. at 10 (citation omitted).
"Congress made clear its concern that civil rights plaintiffs not be penalized for 'helping to lessen docket congestion' by settling their cases out of court."
Jeff D .: Waiver of Attorney's Fee
Jeff D., a child suffering from emotional or mental handicaps and in the care of the State of Idaho, sued John Evans, the Governor of Idaho, and other State officials for allegedly violating John D.'s rights under the Constitution of the United States, the Constitution of Idaho, and various Idaho statutes. On the day the complaint was filed, the Federal district court appointed Charles Johnson as Jeff D.'s next friend for the sole purpose of instituting and prosecuting the lawsuit. "At that time Johnson was employed by the Idaho Legal Aid Society, Inc., a private, nonprofit corporation that provides free legal services to qualified low-income persons. Because the Idaho Legal Aid Society is prohibited from representing clients who are capable of paying their own fees, it made no agreement requiring any of the respondents to pay for the costs of litigation or the legal services it provided through Johnson. Idaho Legal Aid receives grants under the Legal Services Corp. Act and is not allowed to represent clients who are capable of paying their own legal fees." Evans v. Jeff. D., 475 U.S. 717, 721 & n. 3 (1986) (citations and footnote 2 omitted).
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Shortly after the lawsuit was filed the parties entered into settlement negotiations, and one week before the trial was scheduled to begin the State offered Jeff D. a settlement that granted Jeff D. virtually everything he had sought. However, the settlement offer included a waiver of Jeff D.'s claims to fees or costs. "Originally, this waiver was unacceptable to the Idaho Legal Aid Society, which had instructed Johnson to reject any settlement offer conditioned upon a waiver of fees, but Johnson ultimately determined that his ethical obligation to his clients mandated acceptance of the proposal." Id. at 722. The district court approved the settlement, noting that although the State did not concede that it was required to make the changes Jeff D. sought, it was willing to make the changes so long as its costs were outlined and it didn't face additional costs. Any award for costs or fees would have gone to Idaho Legal Aid Society, not Attorney Johnson, although during the course of the litigation he left the Society for private practice. Id. at 721 n. 2.
One week before the trial was scheduled to begin the State offered Jeff D. a settlement that granted Jeff D. virtually everything he had sought. However, the settlement offer included a waiver of Jeff D.'s claims to fees or costs.
The Supreme Court held the Civil Rights Attorneys Fees Act, 42 U.S.C. 1988, does not require that fees be assessed when the case has been settled by consent decree and that decree provides that fees will be waived. The district court may, in its sound discretion, refuse to award attorney's fees.
Zipes: Attorney's Fees Against Losing Intervenors
This controversy began in 1970 when Anne Zipes and other female flight attendants brought suit against Trans World Airlines claiming that its policy of terminating flight attendants who became mothers was unlawful sex discrimination. Soon after suit was filed, TWA abandoned its policy and agreed to a settlement with Zipes. The agreement was approved by the district court, but some plaintiffs objected to the settlement and the litigation dragged on. In 1979 TWA and the plaintiffs again agreed on terms, but at that point the Independent Federation of Flight Attendants (which had replaced another union) intervened to protect the interests of incumbent flight attendants. The union's objections to the settlement were rejected. Zipes's attorneys asked the Union for attorney's fees (in the amount of $181,000, to be added to the $1.25 million in attorney's fees that had already been assessed against TWA) and the lower courts granted the request. The Supreme Court reversed.
Zipes's attorneys asked the Union for attorney's fees (in the amount of $181,000, to be added to the $1.25 million in attorney's fees that had already been assessed against TWA) and the lower courts granted the request. The Supreme Court reversed.
The Supreme Court said that Title VII attorney's fees should be awarded "against losing intervenors only where the intervenors' action was frivolous, unreasonable, or without foundation .... In this case, for example, [the intervening union] became a party to the lawsuit not because it bore any responsibility for the practice alleged to have violated Title VII, but because it sought to protect the bargained-for seniority rights of its employees." Independent Federation of Flight Attendants v. Zipes, 109 S. Ct. 2732, 57 USLW 4872, 4874 (decided June 22, 1989).
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Shaw: Interest Cannot Be Charged Against the Federal Government
During 1976 and 1977, Tommy Shaw, an employee of the Library of Congress, filed complaints with the Library's Equal Employment Office alleging job-related racial discrimination. Following an investigation, the complaints were rejected. Thereafter, Mr. Shaw's lawyer pursued the matter with the Library and eventually reached a settlement. The Library agreed to promote Shaw retroactively with backpay if the Comptroller General first determined that the Library had the authority to do so in the absence of a finding of racial discrimination. The Comptroller General ruled that the Back Pay Act forbade the Library to make the settlement. Mr. Shaw then sued and the lower courts determined that the Library had the authority to settle Mr. Shaw's claim even in the absence of a finding of discrimination.
Interest
Mr. Shaw's attorney then sought attorney's fees, and the district court awarded about $8,500 based on an hourly rate of $85. That amount was then decreased by 20 percent to reflect the quality of the attorney's representation and increased by 30 percent to compensate the attorney for the delay in receiving payment from the Federal Government. The Supreme Court held that under Title VII the Federal Government is not liable for interest.
42 U.S.C. 2000e-5(k) provides in relevant part: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person."
The Court held that while Congress has in Title VII waived the Federal Government's immunity from suit and from other costs (including a reasonable attorney's fee) Congress has not waived the sovereign's traditional immunity from awards of interest. Such a waiver must be made expressly. In the absence of a waiver the United States is immune from an award of interest. The Act makes the United States liable for "costs," but prejudgment interest is considered damages, not a component of costs. "A statute allowing costs, and within that category, attorney's fees, does not provide the clear affirmative intent of Congress to waive the sovereign's immunity." Library of Congress v. Shaw, 478 U.S. 310, 321 (1986).
The Act makes the United States liable for "costs," but prejudgment interest is considered damages. "A statute allowing costs, and within that category, attorney's fees, does not provide the clear affirmative intent of Congress to waive the sovereign's immunity."
Patterson: Sec. 1981 Limited to Making and Enforcing Contracts
In 1982, Brenda Patterson was laid off after working for the McLean Credit Union of North Carolina for a decade. She sued her former employer, alleging that she was harassed on account of her race and discharged on the same account in violation of 42 U.S.C. 1981. In 1976, in Runyon v. McCrary, 427 U.S. 160, the Supreme Court held that 42 U.S.C. 1981, a Reconstruction-era civil rights statute, forbids racial discrimination by private persons. Section
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1981 reads: "All persons within the jurisdiction of the United States shall have the same right in every State . .. to make and enforce contracts ... as is enjoyed by white citizens. .. "
Enforcement of Contracts
The lower courts held that post-employment racial harassment is not covered by Section 1981 because such actions do not involve "making" or "enforcing" of contracts. The Supreme Court affirmed. The Supreme Court said that Section 1981 offers two protections. The first protection is with respect to the making of contracts that extends only to the formation of a contract and not to problems that may arise later from the condition of continuing employment. The second protection is with respect to the enforcing of contracts that embraces the legal process and a right of access to legal process to address and resolve contract-law claims without regard to race. The type of conduct in this case, "reprehensible though it be if true, is not actionable under Section 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process." Patterson v. McLean Credit Union, 109 S. Ct. 2363, 57 USLW 4705, 4709 (decided June 15, 1989) (5-to-4 decision on the interpretation of Sec. 1981).
EEOC v. Aramco: Extending Title VII Beyond U.S. Borders
Extraterritorial Employment
Ali Boureslan, a naturalized United States citizen who was born in Lebanon, began working for the Arabian American Oil Company (Aramco, a Delaware Corporation) in 1979. A year later, at his request, he was transferred to Saudi Arabia where he continued to work for Aramco until he was discharged in 1984. Eventually he brought suit against Aramco alleging that he was harassed and ultimately discharged because of his race, religion, and national origin, in violation of Title VII. The lower courts gave summary judgment to Aramco on the grounds that jurisdiction under Title VII does not extend to United States citizens employed abroad by American employers. Boureslan, joined by the EEOC, appealed to the Supreme Court.
The Supreme Court held that Title VII does not apply extraterritorially. While Congress has the authority to extend the reach of its statutes beyond the boundaries of the United States, it must do so expressly. Statutes will be interpreted to apply within the territorial jurisdiction of the United States only unless Congress makes a contrary intent known. This rule "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." Equal Employment Opportunity Comm'n v. Arabian American Oil Co., 59 USLW 4225, 4226 (decided March 26, 1991). The majority of the Court could not find an express congressional intent to apply Title VII extraterritorially. "Congress, should it wish to do so, may .. . amend Title VII and in doing so will be able to calibrate its provisions in a way that we cannot." Id. at 4229.
The Supreme Court held that Title VII does not apply extraterritorially. While Congress has the authority to extend the reach of its statutes beyond the boundaries of the United States, it must do so expressly.
Staff Contact: Lincoln Oliphant, 224-2946
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