ernmental entities around this Nation that probably didn't have much heart in the set-aside in the first place now find an excuse for not having a set-aside. I hope we can, in addition to moving on this legislation, move on legislation that deals with the Richmond case also.

I thank you again, Mr. Chairman, for holding this hearing.

The CHAIRMAN. We will take note that you have introduced legislation that has been referred to the Government Affairs Committee on that particular issue, and as I understand, they are going to move forward with that bill.

Senator SIMON. That is my understanding, and I hope they will. The CHAIRMAN. Senator Thurmond.

OPENING STATEMENT OF SENATOR THURMOND

Senator THURMOND. Thank you, Mr. Chairman.

Mr. Chairman, I would like to commend you for holding this first in the series of hearings that will examine recent U.S. Supreme Court decisions relating to discrimination. I am confident that the members of this committee will benefit from the testimony that will be presented by the witnesses appearing before us today.

The Department of Justice, acting on the direction of President Bush, has monitored the impact of decisions concerning discrimination that were handed down by the U.S. Supreme Court during the late term of court. Based on its findings, the department has made appropriate recommendations in regard to these cases.

I am in agreement with the recommendations of the Department of Justice and am an original cosponsor of the legislation that was introduced yesterday by Senator Dole, Senator Hatch, and others, which proposes to strengthen laws to prevent discrimination in the workplace.

Mr. Chairman, the Bush administration is firmly committed to eliminating employment discrimination. Attorney General Thornburgh has stated that, and I quote, "Discrimination is wrong no matter at whom it is directed." I am sure that each of us strongly agrees with this principle.

Much progress has been made in our Nation to ensure that any individual will not be discriminated against in employment opportunities or adversely affected on the basis of race, color, religion, sex, or national origin, in keeping with the precepts of Federal statutes.

I am looking forward to hearing the perspectives that will be presented today concerning the status of discriminatory practices in our country. While my schedule will not permit me to remain for the entire hearing, I will review the testimony that is presented with interest.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you. Thank you very much.

I want to point out just at the outset, that this legislation which the committee is drafting, in its protections, doesn't apply to the Congress. This is a point that sometimes has been brought up. It was brought up with the ADA legislation as well. And it is certainly my intention to have it apply to the Congress as well. Legisla

tion to achieve that end has been introduced and is before the Government Affairs Committee.

So we will work with the members of the Government Affairs Committee to try to ensure that whatever ultimately results from this committee will also be applicable to the Congress. We did that with regards to the ADA which was reported out of this committee as well.

We are delighted to welcome our first panel: Mr. William Coleman is among the most distinguished and accomplished lawyers our country has ever known. A member of the Harvard Law Review, he went on to clerk for Justice Frankfurter, served as Secretary of Transportation in the Ford administration, and is currently a senior partner in O'Melveny and Myers here in Washington, and one of the most experienced and highly respected advocates before the U.S. Supreme Court. We look forward to his testimony.

Judge Shirley Hufstedler left her position as one of America's most respected jurists on the U.S. Court of Appeals for the Ninth Circuit to serve with great distinction as Secretary of Education in the Carter administration. She is currently a partner in a Los Angeles firm, Hufstedler, Miller, Kaus and Beardsley. We are very pleased that she has taken time out of her schedule to be with us today.

Ray Marshall is no stranger to this hearing room. He was the highly regarded Secretary of Labor during the Carter administration, and is currently a professor at the LBJ School of Public Affairs at the University of Texas at Austin. We are especially pleased to have him back to the committee.

Let me at the outset express my appreciation for all of our panelists. I think we have an extraordinarily distinguished group of men and women who have given great thought and attention to these issues; all of them have made extraordinary efforts to join with us here this morning, at some very significant personal sacrifices. And I am enormously indebted, our committee is indebted to them, and I think we will have a more informed and balanced presentation to make to the U.S. Senate as a result of their willingness to share their experience and advice with us.

We will start off with Mr. Coleman. We welcome you. We welcome your testimony.

STATEMENTS OF HON. WILLIAM T. COLEMAN, JR., SENIOR PARTNER, O'MELVENY AND MYERS, WASHINGTON, DC; HON. SHIRLEY HUFSTEDLER, PARTNER, HUFSTEDLER, MILLER, KAUS AND BEARDSLEY, LOS ANGELES, CA; AND HON. F. RAY MARSHALL, PROFESSOR, LBJ SCHOOL OF PUBLIC AFFAIRS, UNIVERSITY OF TEXAS, AUSTIN, TX

Mr. COLEMAN. Good morning, Mr. Chairman, and good morning, Mr. Ranking Member and other members of this committee.

I appear in support of S. 2104. This bill would correct the major problems created by the U.S. Supreme Court's 1989 civil rights employment decisions. It would restore the law to where it was until late spring of 1989. It would also strengthen the enforcement provi

sions of the existing Federal guarantees of equal employment opportunity.

I have submitted a 37-page statement. I don't intend to read it. I would like to summarize it.

The CHAIRMAN. Let me just say I have had an opportunity to read all the testimonys this morning, and we are grateful that all of our witnesses were good enough to get their testimony in. It makes for a lot, I think, better informed hearing.

What we basically would like to do in terms of the procedures-I am reluctant to put any time limitation on any of these witnesses; but for balance and to ensure that we get the benefits of all of the witnesses' views, if you can summarize your statements in 10 minutes and then we will hear from each of the other panelists and then we will go to 10-minute rounds.

Mr. COLEMAN. Before discussing the provisions in the bill which would overrule Wards Cove and part of Price Waterhouse, I would like to put the proposed legislation in the context of the welfare and the State of the Union, at least as I see it and, I am confident, as most freedom-loving Americans see it, but especially those who can be shocked by what happened at Tiananmen Square and can rejoice in the freedom which is developing in Eastern Europe.

This year, Mr. Chairman, will be a watershed in the history of civil rights laws. Whether for good or for ill, the Congress and the President will decide its future course.

In February of 1989, no one in this room or indeed in the White House could have imagined that the U.S. Supreme Court could turn so dramatically away from the national consensus in favor of vigorous enforcement of Federal equal opportunity laws.

The Court has forcefully reminded all of us how even the most clearly written of statutes can be drained of practical effectiveness by a crabbed, capricious interpretation.

I do not appear before you out of sympathy or compassion or asking you about past wrongs. I ask that you change the law back to what it was because black Americans, after more than three centuries of contribution to this Nation, are entitled to no less.

Since 1607, black Americans, a majority of whose ancestors came to these beautiful and spacious shores as slaves, and many of whom fought for the United States for freedom and dignity in all this Nation's wars since 1774, have been trying to free themselves from the enduring effects of slavery and from over 347 years of federally and State-imposed and sanctioned racial discrimination and segregation.

The goal has been to achieve for themselves and their children the dream of being fully integrated into the economic, social, political, employment, business, and governmental life of this great Nation.

As stated above, the ancestors of the majority of black Americans came to these shores as slaves under the most inhumane and cruel of conditions. But blacks labored as hard as any men or women to build this great Nation out of the wilderness they found. They cleared the forests, they tended the land, they constructed the houses. The land of opportunity to which millions of whites flocked in the 19th and 20th centuries has, to a very significant degree, been built by blacks who, having been in this country for

generations, still could not benefit from the opportunity it provided the others.

Black Americans today seek in our own country precisely what brings thousands of new immigrants to our shores every year, to achieve the dream of being fully integrated into the society.

From the beginning—and I think this is quite important-even when slaves were forbidden to learn to read or to seek jobs of their own choosing, blacks understood that a good education and a decent job were the keys to full participation in our democratic society. Blacks recognized from the beginning that education and employment remain the essential tools by which black Americans can avoid, for themselves and for this great Nation, crime, inadequate housing, insufficient medical care, poor government in the community, high rates of illegitimacy and illiteracy, and all the other evils which shamefully are still visited upon blacks in our country in greater proportion than upon whites.

And I think that is why it is very appropriate that this legislation is before this committee, because part of this is trying to help blacks achieve those conditions that everybody else in this room thinks is part of the American way.

For generations, 347 years, the task seemed virtually insurmountable for at least three reasons:

First, State and Federal statutes in many instances required, sanctioned, or approved racial discrimination or segregation;

Second, the great steps taken by this Congress after the Civil War were subsequently nullified by the U.S. Supreme Court, which misconstrued the 13th Amendment, the 14th Amendment and the 15th Amendment, and the 19th century civil rights laws; and

Third, the practices of the Federal and State governments created a racial animus and bred among whites, including their children, a widespread feeling of hostility toward blacks. This adversely affected, and still affects, the attitudes of whites that would otherwise have toward blacks, causing them in many instances not to realize that blacks have the same yearnings, feelings, ambitions, and standards of conduct and achievement and yearning therefor as those of their white contemporaries.

And that is the reason why the black community today is particularly shocked the U.S. Supreme Court would overrule-and I repeat the word-overrule previous interpretations of statutes of this country.

Having said that, I would now like to turn to Wards Cove. It is clear that that case overrules the Griggs case. And I wish you would ask the Justice Department and ask the Attorney General of the United States when he comes up here, whether that is a fact. The fact is that you cannot read Wards Cove without saying that it overrules Griggs.

Now, I have set forth on pages 13 to 16 in a footnote the statute. That statute, we are not asking any change with respect to what the plaintiff has to prove to get to the jury.

What we are saying is that in a disparate impact case, that once the plaintiff has shown that there is a test of the policy and that test is applied over a period of time with respect to blacks or women that resulted in women and blacks not being a proportionate part of the workforce, to show that there are blacks and women

who have applied for those jobs, to show that any explanation given by the employer, that when you factor it out, there still remains the fact that because of that particular qualification, blacks and women are not represented in the workforce or not provided for in the proportion that there ought to be, based not upon how they live in proportion in the community but based upon the qualifications and the number that appear for the job.

Now, Griggs made it clear that once there was that type of showing, that at that point the burden of proof shifted to the defendant, the employer, to demonstrate why this was so and race was not involved.

I want to repeat this, and, Senator Hatch, I would like to come back to you because I know you are one of the people up there that have tried cases in the pit. I mean the first thing you have to realize is that the plaintiff has to put in a case to show the facts as I have outlined. And I will go so far as to describe to you what he has to prove.

He has to prove that a group, a protected person under the statutes, had been disproportionately excluded after applying for the job. He has to show which employment practices resulted in this exclusion. He has to show that if you exclude all the other reasons why people could be excluded, you still haven't answered why, when you look at the workforce, there are very few blacks or very few women. He has to show that there was a significant number of people who have applied for the job.

Based upon that, and as you have tried cases, you have the right to go to the jury.

At that point, the defendant has to put in a defense. Now, he certainly can put in a defense, well, you have used the wrong type of statistics or the wrong type of methods. That all goes to whether the plaintiff has shown his prima facie case.

But once that is done, then the question is: You've got a workforce here which is disproportionate; you've got the fact that blacks and women have applied for the jobs; they have been excluded. What reason does the employer give for that happening?

The U.S. Supreme Court, in Griggs, made it crystal-clear that that is a defense that the employer has to give and that he has to demonstrate that the reason he or she used was one that was a business necessity. That is what Griggs holds. You can read it. If you have any doubt, I quote it not only from Griggs but I quote it from about eight other cases. And they all say that once the plaintiff has done what is said, the defendant can come in and he has the burden.

The U.S. Supreme Court, much to everybody's surprise, even the government's surprise, said, "No, wait a minute, that once they put forth that defense, that shifts the burden back to the plaintiff and it's the plaintiff that has to be able to say that the reason that the employer gives is one which is incorrect and that he can demonstrate that is not valid."

Well, you shift it. And I would just beg you to look at the antitrust laws. Look at the Clayton Act. I mean, what is there once the plaintiff proves his case and he can get to the jury, if I want to defend for one of my wealthy clients whether they violated an anti