Washington--Following the passage last week of the “Civil Rights Act of 1991" by a comfortable but not veto-proof margin in the House, the spotlight is now on the Senate, where moderate Republicans are trying to broker a bill to fight job discrimination that would satisfy both the Democrat-controlled Congress and the White House.
With a possible compromise in the offing, representatives of education groups here said late last week that it was too early to tell how school districts and their employees would be affected if HR 1 is enacted.
“It’s certainly not going to stop litigation,” said Gwendolyn Gregory, deputy general counsel for the National School Boards Association.
“I’m really ambivalent about it,” she said, “because until the courts tell us what [the legislation] means, it’s hard to tell” what effects it would have on school employment practices.
Like last year’s civil-rights bill, which President Bush vetoed, most provisions in HR 1 would affect schools in much the same way as other employers.
But some observers suggested that the new legal ammunition the bill would give to plaintiffs alleging sex discrimination could have a significant impact on schools, whose administrative ranks are predominantly male, but whose teaching force is mostly female.
Ban on ‘Race Normed’ Tests
The House bill, passed by a 273-to-158 vote that fell well short of the 290 votes needed to override a threatened Presidential veto, would reverse six recent U.S. Supreme Court decisions that made it harder for plaintiffs charging job-related discrimination to challenge employers in court.
The bill also would allow, for the first time, victims of intentional discrimination based on sex, religion, disability, or national origin to sue for compensatory and punitive damages under Title VII of the Civil Rights Act of 1964. Currently, awards in such cases are limited to back pay and reinstatement.
Under the bill, punitive damages for workers in the newly added categories would be limited to $150,000, or the sum of back pay and compensatory damages, whichever was greater. Victims of racial discrimination are allowed to seek unlimited damages under a Reconstruction-era law.
In a bid to quell criticism that the bill would force employers to adopt hiring quotas to avoid litigation,sponsors added provisions specifically outlawing both the use of quotas and so-called “race normed” employment testing, in which scores are adjusted based on considerations such as race or sex.
Several education-group officials said they did not know if such race-norming is used in education, where the most common form of job-related testing is for teacher certification.
Marilyn Hutton, a human- and civil-rights specialist with the National Education Association, said last week that the union opposes race-normed testing and advocates doing away with standardized tests that have an inherent gender or cultural bias.
Burden of Proof Shifted
Echoing the claims of HR 1’s sponsors, Joel Packer, a lobbyist with the NEA, said that the bill would have little impact on schools if it becomes law because it would restore the legal interpretations that prevailed for job-bias cases before the High Court’s controversial series of rulings.
For example, the bill would restore to the employer the burden of proving that employment practices that have a disproportionate negative impact on minorities or women are a “business necessity.” This would overturn the Court’s 1989 ruling in Wards Cove v. Atonio, in which the Court placed the burden of proof on plaintiffs.
Larry Daves, a lawyer for the Texas State Teachers’ Association, noted the difficulty a teacher would have in meeting the burden of proof when challenging such practices.
“To show why she wasn’t moved up to a counselor position or made an assistant principal when all that information is solely in the hands of the employer--it’s an almost impossible burden,” he said.
In a number of cases in recent years, teachers and administrators have challenged state tests for educators on the grounds that they discriminate against minorities and, in some cases, those over age 40.
In Texas, for example, both black and older teachers five years ago challenged the state’s use of a minimum-competency test for current employees. The federal Equal Employment Opportunity Commission ruled in the teachers’ favor in 1988, but the Justice Department declined to enforce the ruling after the Wards Cove decision, Mr. Daves said. The plaintiffs have since filed a separate suit.
Other challenges have occurred in Georgia, where minority teachers said the certification test was culturally biased, and Alabama, where teachers said scores had a discriminatory effect on their applications.
HR 1 was the third civil-rights bill the House considered last week. It defeated, 277 to 152, a more expansive bill backed by prominent black and women members, and, on a 266-to-162 vote, an Administration bill considered more palatable to employers.
But the failure of HR 1 to win the votes needed to override a veto apparently has strengthened the hand of nine moderate Senate Republicans, led by John C. Danforth of Missouri, who are trying to fashion a compromise.
Mr. Danforth has introduced three bills that would reverse the Court decisions, allow victims of nonracial discrimination to seek damages, and outlaw race-norming. One bill would require employers to prove that discrimination did not occur, but specifies that hiring be based on merit.
Late last week, Senator Edward M. Kennedy, the Massachusetts Democrat who chairs the Labor and Human Resources Committee, was negotiating with senators seeking a bipartisan bill. But Mr. Kennedy did not rule out introducing his own bill.
