Wrong Road to Rights
THE proposed Civil Rights Act of 1990, in its present form, is an attempt to push civil rights law - once so nobly focused on ending race discrimination in the United States - deeper into the thicket of race and gender preferences.
The bill seeks to attack bias in the workplace by making it easier for workers to sue employers for discrimination in hiring or promotion. In particular, it aims to reverse several recent Supreme Court decisions widely seen to vitiate the ability of minority and female workers to contest unfairness.
The bill has some worthy elements. It would permit workers to challenge bias in promotions under a statute the Supreme Court said applies only to hiring, and it reconfirms that civil rights laws are to be generously interpreted, to give them, as we've argued before, a "broad sweep."
But the key provision of the act is troubling. It would let a plaintiff, without any proof of intentional discrimination by an employer, show with statistics that the plaintiff's group is underrepresented in the employer's work force. The "disparate impact" of the employer's hiring practices being thus shown, the employer would bear the burden of proving that every one of his hiring criteria is "substantially and demonstrably related to effective job performance."
This would be an extremely hard test for even the most fair-minded employer to pass. …