trust law, I have the burden of proof on the defense. That is all we expect to do. That is all section 3 and section 4 does.

So I wish you would take a look at it, and if I am correct, I think you would tend to agree with me.

Now, we have put in, we have had some students at Yale do some work, and I would like to put in two sets of charts. One demonstrates that there are about 200 cases prior to Wards Cove that says the law is as we have described it. And I would like to first put those in, and this is what we show. All the Federal judges that you all have been approving and everything. [Laughter.]

Reading the statutes, the good ones and the bad ones have all agreed that that is what the case says. [Laughter.]

Then the second one, and this goes to the second issue, that in Griggs, the Court says that once you have this disparate impact, that the only defense the employer has is, "I have a rule which is a necessity for me to be able to get the right type of workforce." That is what Griggs says; that is what the other cases say. And you have Judge Posner, who certainly sometimes is not on our side, saying that when they decided Wards Cove, they took the word "necessity" out of the statute. And once again, we have done, or some of the Yale law students-I guess it's good; I didn't go to Yale, but I will rely upon it. [Laughter.]

I had two kids who went to Yale, so I assume it's good. [Laughter.]

Senator HATCH. This is very suspicious. [Laughter.]

And we have collected for you a series of cases which once again demonstrate that prior to Wards Cove the law was as we say it is. As a result of Wards Cove, since that time, there have been about 305 cases which have been changed. So this has had a great effect. And I repeat this because in the Justice Department—and after all the Attorney General was my governor; I campaigned for him and I think he is a good public servant-but sometimes they are not completely clear. Sometime they say, "Oh, Wards Cove didn't change, or Griggs." Sometimes they do.

I am making the statement to you and I wish you would ask them, that nobody can read Wards Cove without coming to the conclusion that it overruled Griggs in the respect that I said, and I cover two others in my written presentation.

Now, I guess my 10 minutes are about up. I would like to spend a moment on the Price Waterhouse case. And I realize, as you pointed out, Senator Hatch, that Mr. Justice Brennan wrote the decision. I think this should demonstrate to you that

Senator HATCH. Even he can be wrong from time to time?

Mr. COLEMAN. No, this should demonstrate to you that he is a very responsible judge.

Senator HATCH. He is.

Mr. COLEMAN. And that, therefore, when he dissents and says those guys in Wards Cove and every other case-- [Laughter.]

Mr. COLEMAN [continuing.] I hope you will give him the same attention.

Now, in Price Waterhouse, which involves sexual discrimination, it is not a disparate impact case, it is a disparate treatment case; namely, an intentional case.

Senator HATCH. Right.

Mr. COLEMAN. And there, it was clear that when that lady came up for partnership, that some of those partners turned her down because of her sex. They said it. That's on the record. There was a finding to that effect.

It so happened that there weren't enough of them that did it on that ground that the Court could say that's why she didn't become a partner. Other people said she didn't become a partner because she didn't get enough business or she didn't do a lot of other things or sometimes she wasn't that good with clients, although they had to concede there were males that weren't that good with clients and they still became partners.

But leaving that aside, the fact is that they found a nonillegal reason why she wasn't. So, therefore, you have a situation where there is proof of an illegal reason and there is proof of a nonillegal

reason.

Now, unfortunately, Justice Brennan, with all due respect, he went to the Harvard Law School and he remembered Torts I, and therefore he says that when you get hit by a legal and an illegal thing at the same time, you can't recover.

But you're not dealing here with trying to recover under a negligence statute, what you are dealing with here is with a Federal statute which says that it is illegal for people to conduct their business based upon discriminating against people based upon sex or

race.

Therefore, once there is any evidence that clearly that there was by partners, and partners bind a partnership, that some of them were discriminating against this woman on the basis of sex, that certainly and all section 5 of the bill says is that when you have a record like that, the Federal judge should be able to enjoin the partnership from saying, "When you deal with these people in the future, don't you take race or religion into consideration and don't you do it on that basis." And therefore, there can be an injunction, and that is what section 5 does. You've got to do it.

You just cannot have cases in this Court where Federal judges hear them, where the record is clear that there was racial or sexual discrimination, and let those major institutions continue to be able to do that without issuing an injunction. That's all the case does.

Having said that, I would now turn it over to my other colleagues, and they will talk about other parts of the statute.

But, Senator Hatch, with all due respect, contrary to what you say, this is a very simple matter that statute is, with all due respect-particularly since you spent the first part of your practice in Pittsburgh, so you were a good Pennsylvania lawyer-that statute is not complicated. [Laughter.]

Senator HATCH. Now, that was a dirty blow, I'll tell you. [Laughter.]

Mr. COLEMAN. That statute is not complicated. Believe me, I read it. I was amazed at the extent to which Senator Kennedy, Senator Metzenbaum, Senator Jeffords, and others could make it so clear, because I struggled with how do you change these cases, because you can't read these cases without realizing that they are wrong. And I am amazed, and I compliment the Senator and, Senator, there are very few concise words that make the change and not do

the thing. There are no quotas here. I mean, the whole contrary idea that just walk into a community and it's 80 percent black and 20 percent white, you therefore think the workforce should be 8020 percent.

Well, I am telling you, look at Washington, DC, you know very well that's not right. [Laughter.]

And therefore, you have to prove these cases by statistics, and unfortunately the Legal Defense Fund has lost almost as many as they have won, and therefore it is clear that the law ought to be put Lack to where it was at the time of Griggs and you ought not to let Wards Cove stand.

Thank you.

[The prepared statement of Mr. Coleman (with responses to questions submitted by Senator Jeffords) follows:]

PREPARED STATEMENT OF WILLIAM T. COLEMAN, JR.

My name is William T. Coleman, Jr.1 I appear in support of S. 2104, which 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 provisions of the existing federal guarantees of equal employment opportunity.

This legislation raises a variety of technical issues which the Committee will consider over the course of the next two weeks of hearings. I will address some of those questions later in my testimony, and subsequent witnesses, I am sure, will delve even deeper into the relevant details. There will be ample discussion, probably more than you really want at times, regarding the intricacies of the Federal Rules of Civil Procedure, the various subsections of title VII of the 1964 Civil Rights Act, and the somewhat arcane legislative history of the Civil Rights Act of 1866.

But first I would like to put the proposed legislation in 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 who can be shocked at what happened at Tiananmen Square in China and can rejoice in the freedom which is developing in Eastern Europe.

There is something far more fundamental and far reaching that is at stake in these hearings, and at this juncture in the development of the law than mere technicalities and procedural issues. 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 us all of how even the most clearly written of statutes can be drained of practical effectiveness by a crabbed, capricious interpretation. We need not debate how far the Court has gone down that road to agree that it has chosen that direction for the law.

If the decisions at issue involved the interpretation of the Constitution, both the terms of the Constitution itself, and simple prudence, would suggest deference to the Court's judgment. But the issue today is the interpretation, and resuscitation, of federal statutes, matters well within the powers and responsibilities of the Congress. I urge the Committee to correct the problems created by these decisions, and by so doing to change the ominous direction in which the construction of federal civil rights laws appears now to be headed.

I do not ask that you do so out of sympathy or compassion or guilt over past wrongs. I ask it because black Americans, after more than three centuries of contributions 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 the nation's wars since 1774,2 have been trying to free themselves from the enduring ef

1 Senior Partner, O'Melveny & Myers, Chairman of the Board of the NAACP Legal Defense and Educational Fund, Inc., Secretary of Transportation in the Ford Administration.

2 For example, 5,000 blacks fought for America's independence in the Revolutionary War, nearly a century before blacks themselves were freed from slavery. Over 400,000 blacks served Continued

fects 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 America 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 Nineteenth and Twentieth Centuries had to a very significant degree been built by blacks who, despite having been in this country for generations, still could not benefit from the opportunities they had provided to 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 economic, social, political, employment, business and governmental life of this great nation. From the beginning, 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 and recognize even more today that education and employment remain the essential tools by which black Americans can avoid, for themselves and for the nation, crime, inadequate housing, insufficient medical care, poor government in the community, high rates of illegitimacy and illiteracy and all the other evils still shamefully visited upon blacks in our country in greater proportion than upon whites.

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 race discrimination or segregation. 3 Second, the great steps taken by Congress after the Civil War were subsequently nullified by the U.S. Supreme Court, which misconstrued the Thirteenth, Fourteenth and Fifteenth Amendments and the Nineteenth Century civil rights laws. Third, the practices of the federal and state governments created racial animus and bred among whites, including their children, a widespread feeling of hostility towards blacks. This adversely affected the attitudes that whites would otherwise have towards blacks, causing them in many instances not to realize that blacks have the same yearnings, feelings, ambitions and standards of conduct and achievement and yearnings therefor as those of their white contemporaries. 5

In the middle of this century-less than 36 years ago-Brown v. Board of Education was the watershed that began a drastic change both in the law and in the attitude of government officials and private citizens alike. Thus for 36 years this nation has been trying to wipe out a sickness and infection in our society which existed for over three centuries years. Since 1954, although slowly and haltingly, the nation has moved ever closer to a society in which blacks are treated as free and equal. Congress contributed greatly to the pace and direction of that change through a series

in various units during the Civil War and more than 2.3 million blacks have fought for the U.S. in the four major wars of this century. In the Vietnam war blacks were a disproportionate percentage of the soldiers who fought and of those that were killed or wounded. Moreover, this distinguished military service over the past 215 years has been rendered in the face of tremendous hardship, discrimination and segregation within the armed services. See Black Americans In Defense of Our Country, United States Department of Defense (1985).

3 Even by the middle of the 20th century many states still had segregation statutes affecting such things as travel, hospitals, recreation facilities, washrooms on the job, public schools, miscegenation, jails and adoptions. Violations of these statutes were in some cases punishable by fines and imprisonment. See Greenberg, Race Relations and American Law, Columbia University Press 1959 (Appendix A).

See, eg.. Civil Rights Cases, 109 U.S. 3 (1883); United States v. Reese, 92 U.S. 214 (1876); Plessy v. Ferguson, 163 U.S. 537 (1896).

5 For another distinctive, discrete minority, Shakespeare's Shylock described the issue as follows: "He hath disgraced me, and hindered me half a million; laughed at my losses, mocked at my gains, scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies, and what's his reason?-I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us do we not bleed? If you tickle us do we not laugh? If you poison us do we not die?" Shylock's alternative was "revenge". Shakespeare, Merchant of Venice, Act 3, Scene 1, lines 50 to 61. The black American, however, has sought relief through the Congress and the courts confident that since his cause is just, justice and fairness will be done.

7

of bold legislative initiatives. For years, as the nation worked through the intractable realities of racial discrimination, a synergistic relationship existed between the U.S. Supreme Court and the Congress, each building on the contributions and innovations of the other. By the time of the 1983 decision in Bob Jones University v. United States, Chief Justice Burger could speak with confidence of the consensus, encompassing all three branches of the federal government, that racial discrimination-public or private-was contrary to fundamental public policy. That consensus was shared by the vast majority of the American people, who took justifiable pride in the progress the nation had made towards racial justice.

And then in the late spring of 1989, suddenly and inexplicably, the U.S. Supreme Court of the United States, which had initiated and contributed so much of this remarkable national consensus, turned in another direction. In a few weeks the U.S. Supreme Court handed down a series of decisions that threatened the vitality and enforceability of federal equal employment laws. No one can seriously contend that the statutes at issue were framed in such a manner as to compel these decisions. On the contrary, in virtually every instance the federal circuit courts, or even the U.S. Supreme Court itself, had construed the laws in the opposite way. The pattern of these decisions, including Patterson v. McLean Credit Union, suggests that the Court had abandoned the well-established principle that remedial civil rights statutes ought to be broadly construed. It became all too clear how easily the substance of federal civil rights laws could be strangled in technicalities.

The change was so dramatic and palpable that the Court itself found it necessary to insist, somewhat lamely, that "[n]either our words nor our decisions should be interpreted as signalling one inch of retreat from Congress' policy to forbid discrimination in the private, as well as the public, sphere." 9 Justices Marshall, Blackmun, Brennan and Stevens regarded the decisions as not a retreat, but a complete rout. Justice Blackmun commented in his dissent in Wards Cove Packing Co. v. Atonio, One wonders whether the majority still believes that race discrimination—or, more accurately, race discrimination against nonwhites-is a problem in our society, or even remembers that it ever was. 10

As a matter of statutory construction the results in some of these decisions are, to put the matter delicately, far fetched, and in some instances, actually absurd. For example, in Patterson can it seriously be imagined that in 1866 Congress intended to forbid a private employer from refusing to hire or promote a black because of race, but felt at the same time there would be nothing wrong if the employer hired a black woman and then visited her with harassment which certainly would make the contract a nullity or at least make her life a living hell? But that is the result of the Court's ruling in Patterson. Similarly, are we truly to believe, although the Court in Lorance v. AT&T Technologies 11 so held, that when Congress enacted title VII, it intended to require an employee to challenge invidiously motivated rules years before the rules were ever applied, and years before the employee even worked in the department covered by the rules. I cannot conceive of how Congress, except as some sort of cruel joke, would have chosen to enact such self-nullifying measures. The Justice Department has endorsed overruling Patterson and Lorance, and I welcome that decision; but I would urge the Committee still to keep these two decisions in mind in attempting to assess the general Court attitude which gave rise to the other, still controverted decisions.

Justice Stevens, in his Wards Cove dissent, expressed bafflement as to the reason for that decision. "Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me.' ." 12 This bundle of retrogressive decisions is no favor to employers. In the case, for example, of disparate impact litigation under title VII, 18 years of decisions after Griggs had refined, fleshed out and clarified the law. Employers had a reasonably clear idea of what the law required and could with some degree of confidence bring their practices into conformity with it. After Wards Cove, however, the law seems in a state of complete turmoil. A decade of additional litigation may clear all this up, but for now employers, who must balance their assessment of legal requirements against any number of compet

See, eg, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Civil Rights Act of 1968, the Civil Rights Attorney's Fee Awards Act of 1976, the Voting Rights Act Amendments of 1982 and the Fair Housing Amendments Act of 1988.

7461 U.S. 574, 598 (1983).

*109 S.Ct. 2363 (June 5, 1989).

⚫ Patterson, 109 S.Ct. at 2379.

10 109 S.Ct. 2115, 2136 (June 5, 1989).

11 109 S.Ct. 2261 (June 5, 1989).

12 109 S.Ct. at 2136.