CIVIL RIGHTS ACT OF 1990

TUESDAY, FEBRUARY 27, 1990

U.S. SENATE,

COMMITTEE ON LABOR AND HUMAN RESOURCES,

Washington, DC. The committee met, pursuant to notice, at 9 a.m., in room SD430, Dirksen Senate Office Building, Senator Edward M. Kennedy (chairman of the committee) presiding.

Present: Senators Kennedy, Metzenbaum, Simon, Hatch, Jeffords, and Thurmond.

OPENING STATEMENT OF SENATOR KENNEDY

The CHAIRMAN. We will come to order.

We have a very distinguished group of witnesses today. Today is somewhat complicated for Senator Hatch and myself since the Senate is now debating the voluntary service bill on the floor of the Senate. So we are going to have to absent ourselves after a reasonable period in the course of the hearing, and at the outset we want to apologize to some of the witnesses. We have other members of the committee who are deeply interested in this issue and who will preside over the hearing. But I know I will take great interest in all of the testimonies we will be receiving.

But we wanted to move the hearing up to try to accommodate both the witnesses and the Senate schedule. We appreciate the understanding of the witnesses on this particular conflict.

This is the second in a series of four hearings by the Committee on Labor and Human Resources on S. 2104, the Civil Rights Act of 1990. At our opening hearing last Friday we heard compelling testimony from distinguished witnesses about the overall impact of the U.S. Supreme Court's recent decisions on civil rights and about the need for legislation to restore and strengthen those rights.

Today's hearing will focus on the three major provisions in the bill dealing with intentional discrimination. First, the bill overrules the U.S. Supreme Court's decision last summer in Patterson v. McLean Credit Union, in which the Court drastically cut back on the century-old civil rights law known as section 1981. Section 1981 guarantees to all persons the same right to make and enforce contracts enjoyed by white citizens.

The U.S. Supreme Court ruled that although the section applies to hiring decisions, it does not bar discrimination on the job. As a result, for 11 million persons working for firms with fewer than 15 employees, there is no Federal ban against intentional discrimina(101)

tion or harassment on the job itself or in the decisions to promote or fire workers.

Our bill will restore the law's broad protection against intentional race discrimination in all aspects of employment.

Second, under section 1981 victims of intentional race discrimination on the job may recover compensatory damages and, in certain serious cases, punitive damages as well. But because of a gap in the law, employees victimized by intentional discrimination based on sex, religion, or national origin cannot obtain this important relief. As a result, victims of sexual harassment or religious prejudice often have no meaningful remedy.

Our bill will close this gap and make the same remedies available for all victims of intentional discrimination.

The third provision clarifies the law applicable to so-called mixed-motive cases. In Price Waterhouse v. Hopkins the Court ruled last year that where intentional sex discrimination was a motivating factor in an employee's failure to receive a promotion, she was not entitled to relief if her employer could demonstrate that she would have been denied promotion in any event for other nondiscriminatory reasons.

Under the bill, when an employee demonstrates that prejudice actually motivated an employment decision, the employee is entitled to relief-ordinarily, an injunction against future discriminatory conduct, and attorneys' fees. But if the employer can show that it would have made the same decision without the discriminatory motive, the employee is not entitled to reinstatement or back pay. There are many distinguished witnesses today, and I look forward to their testimony.

Senator HATCH. Well, thank you, Mr. Chairman.

I join with the chairman of the committee in extending appreciation and welcome to all of our witnesses this morning. I am interested in hearing from all of you but especially from Mr. Donald Ayer, the deputy attorney general of the United States, several former members of the Equal Employment Opportunity Commission and, of course, others regarding this legislation.

Now, none of us will argue that discrimination does not exist today. We have all seen its ugly head and evidences of it. We need, it seems to me, strong and effective implementation of our civil rights laws. And while there is a need to improve our civil rights law enforcement, I think we have to do it right, and I intend to be a strong advocate for such improvement and enforcement.

We agree, Mr. Chairman, that some change in these laws is desirable. I have introduced legislation prepared and supported by the Bush administration to overturn the U.S. Supreme Court decisions in Patterson v. McLean and the Lorance cases.

But, Mr. Chairman, I cannot support wholesale changes in our essential civil rights laws when such changes, in effect, overturn many time-honored principles, principles which are dear to every American. This legislation would shift the burden of proof to defendants in disparate impact cases or in disparate impact cases, meaning that one is guilty until proven innocent. This legislation would severely limit the right of certain workers affected by a consent decree to challenge that decree in court when they claim that

they are harmed by it. This would deny Americans their equal rights to their day in court.

By introducing punitive and compensatory damages and jury trials to title VII, the legislation provides a windfall for attorneys and creates an incentive to engage in lengthy litigation rather than to settle differences.

I submit to my colleagues here in the Senate that this incentive moves our Nation no further toward the kind of society we seek, one in which irrelevant factors such as race play no role in employment decisions.

Some of the aspects of the bill which will be covered today are of particular interest, with the exception of the Patterson case, which we both agree warrants redress, the significant changes contained in sections 5 and 8 of this bill do not even purport to be a "restoration" of the law to where it was before the U.S. Supreme Court's 1989 term. They clearly represent a substantial departure from the Civil Rights Act of 1964.

Section 5 of this bill would overrule Price Waterhouse v. Hopkins, a plurality decision written by Justice Brennan, which was a victory for civil rights plaintiffs. This section goes further, in section 5 of this bill, it goes further than that opinion by reversing the general rule that in employment cases the plaintiff must show that the defendant's unlawful conduct caused the injury.

The change here is significant. This bill would allow punitive and compensatory damages and attorneys fees even in cases where an employer has proven that it would have made the same decision for non-discriminatory reasons.

Section 8 of this bill proposes, though not in response to any U.S. Supreme Court decision, to expand title VII to make punitive and compensatory damages, including damages for pain and suffering, available in disparate impact cases.

I am concerned that this would change title VII from a statutory scheme aimed at conciliation and administrative resolution of allegations into one in which litigation is the first, if not last, resort. To change the act in a way that would discourage rather than encourage the prompt and equitable resolution of employment disputes could, in the long run, heighten rather than lessen racial and other conflicts in the workplace.

Indeed, one provision of this bill, section 9, makes it illegal to condition settlements on the waiver of attorneys fees, thus overturning yet another U.S. Supreme Court decision in Evans v. Jeff D. This will make it even more difficult to settle cases. This will delay, not foster, simple justice.

Mr. Chairman, I reiterate that we both seek equality of opportunity in the workplace. I admire you for the work that you have done in this area through the years and have a great deal of respect for you.

Unfortunately, there are certain principles of justice which I believe would be turned on their heads if this legislation were enacted in its present form. I find it discouraging that we are being asked to overturn these fundamental rights that really have existed really of citizens in order to prove our support for equal opportunity.

Now, this is strictly an unfair exchange for everyone, in my opinion. So I intend to make sure that we do the very best we can to right the wrongs, move forward, do the things we can to end discrimination in the workplace and elsewhere, and do it in a way that is consistent with the best intentions of the law and the best workings of the law. And I hope we can do that before it is over. But I don't think this bill does that except with regard to the Patterson v. McLean and Lorance cases.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much.

Senator Metzenbaum.

Senator METZENBAUM. Mr. Chairman, I commend you for moving ahead quickly with these hearings on the Civil Rights Act of 1990, and I also commend Senator Hatch for his willingness to give his attention and time to this issue. I know that he has the same good intentions as all of us do on this committee. I am hopeful that we will be able to prevail upon him about the need for enactment of the entire piece of legislation as it comes before us. I further hope that the administration will see fit to join us in supporting this most important piece of civil rights legislation.

Last Friday we heard compelling testimony from a number of distinguished witnesses on the critical need to correct the disastrous series of recent decisions by the conservative majority on the U.S. Supreme Court. This morning's hearing focuses on three specific issues, all involving intentional employment discriminationintentional employment discrimination.

Many people would like to believe that employers are no longer openly racist or sexist. Unfortunately, that is not the case. Just ask Brenda Patterson. As she testified last week, she was harassed, humiliated, and insulted because her supervisor was openly hostile to blacks. When Brenda Patterson sought justice under section 1981, the U.S. Supreme Court slammed the door in her face.

The Court's new majority declared that section 1981 prohibits racial discrimination in hiring but it does not apply to racial discrimination once you are on the job. That is wrong. That is absurd. That is preposterous.

The Civil Rights Act of 1990 makes clear that section 1981 applies to employment conditions after hiring as well as to hiring decisions. Intentional discrimination against women is just as hurtful as intentional racial discrimination. But under current law, the remedies are not the same for intentional sex discrimination as they are for intentional race discrimination.

The Civil Rights Act of 1990 corrects that inconsistency. The bill applies the damages provisions of section 1981 which allow for compensatory and punitive damages to intentional employment discrimination claims under title VII. Thus, all victims of intentional discrimination in the workplace will be able to receive full and fair compensation.

The third issue involves the Price Waterhouse case. In that case the U.S. Supreme Court indicated that an employer could make an employment decision based on an illegal, racist, or sexist motive so long as it also relied on an independent legal reason for the decision.