sufficient reason for its decision" was formulated after the discriminatory action was taken or decision was made, and not before.

Furthermore, where subjective hiring criteria are employed, it is frequently difficult, if not impossible, to assess whether the employer's "legitimate" justification for its conduct was itself tainted by discrimination. This difficulty existed in Price Waterhouse itself, where the "legitimate" explanation proffered by defendants for the denial of partnership to Ann Hopkins-that she had poor interpersonal skills—is difficult to extricate from the implicit and explicit indications in the record that the Price Waterhouse partners disliked women (but not men) who were, or were perceived to be, aggressive.83 Similarly, subjective criteria may easily be poisoned by preexisting stereotypes.84 For example, a white man may be evaluated as "ambitious," where a female employee exhibiting similar traits may be labelled "abrasive," and a similarly situated non-white employee referred to as "uppity." 85

Because of my concerns that the Price Waterhouse decision may unleash a new onslaught of discrimination in the workplace, leave many discrimination victims without redress, and impede the eradication, once and for all, of insidious and irrelevant considerations from decisions about hiring, promoting, and firing employees, I urge the passage of section 4 of this legislation.

CONCLUSION

I fully support the enactment of the proposed Civil Rights Act of 1990, S. 2104. I fervently believe that as a nation, we have improved greatly by beginning to follow the advice of the late Reverend Martin Luther King, Jr., and judging people by the "content of their character" rather than by the color of their skin, their gender, or their religion. By enacting Title VII twenty-five years ago, Congress sought to enshrine this principle in the nation's workplaces, and to ensure that discrimination victims were able to obtain relief for the injuries they sustained as a result of unlawful discrimination. Regrettably, recent decisions of the U.S. Supreme Court have hindered, rather than advanced, the achievement of these objectives.

I urge you, Senators, to assist the nation in its progress towards full equality of employment opportunities by passing the Civil Rights Act of 1990. Not only the victims of discrimination, but the entire nation will be better for the effective deterrence and full remediation of unlawful employment discrimination which the bill promotes. Thank you for your consideration of these remarks.

The CHAIRMAN. Ms. Norton, I am going to have to go to the floor shortly, and I would like to get into perhaps some questions. We will include all the statements in the record.

Ms. NORTON. Well, if you would like to do that.

The CHAIRMAN. If I could inquire of you just for a few questions before I go, I would appreciate your understanding.

Ms. NORTON. Certainly

The CHAIRMAN. The opponents of our bill-you have covered some of these in the testimony but I would like perhaps to sharpen the responses-have asserted that allowing damages in title VII would fundamentally change title VII and interfere with the prompt resolution of claims by the EEOC. You heard that testimony earlier today.

You were chair of the EEOC for 4 years. How do you respond to those assertions?

Ms. NORTON. I was puzzled that Mr. Ayer seemed to feel that by strengthening the relief available under section 1981 we would nec

83 See generally Morris, Stereotypic Alchemy: Transformative Stereotypes and Antidiscrimination Law, 7 Yale Law & Pol. Rev. 251 (1989) (arguing that "an ostensibly non-suspect characteristic may be transformed, through a process of stereotyping, into a vehicle for discrimination against a suspect class").

84 Id. at 259-62.

85 See e.g., Judge v. Marsh, 649 F.Supp. 770, 780 (D.D.C. 1986) (Black female employee's promotion denial held to be attributable to her "abrasive" personality rather than to race or gender discrimination); cf. Council v. City of Topeka 1990 U.S. Dist. Lexis 1315 (D. Kan. 1990) (Black woman firefighter entering fire department at outset of admission of women labelled "aggressive black bitch" by co-workers).

essarily simultaneously withdraw relief available under title VII. The Congress has always said with respect to these two statutes that it wished to leave both available. The amendments we have submitted, the amendments to which I testified, leave both available, as the congressional intent has always been.

The CHAIRMAN. Well, on the question of the changes in title VII, how much do you see that that would actually interfere with the claims being brought by the EEOC under title VII?

Ms. NORTON. Well, the conciliation provisions, for example, remain available. Most people who sue under title VII sue under both in order to allow themselves to take advantage of whatever advantages each statute offers. That would remain a matter of choice.

People who sue under section 1981 alone, of course, go into court immediately. But I think if you look at most title VII litigation, most title VII litigation is brought under both provisions, which means that almost necessarily the party has to take advantage in one way or another of title VII, including its conciliation provisions or whatever may be applicable.

The CHAIRMAN. Well, would it be fair to say that allowing the damages will not interfere with the prompt resolution of cases by the EEOC under title VII?

Ms. NORTON. I don't see how allowing damages where they are not now allowed would interfere with the prompt resolution of cases. It means that you have more in the mix. But that we urge upon you.

The CHAIRMAN. Well, that is certainly what we intended, and there has been, you know, testimony that by doing that we are somehow going to interfere with the resolution of these cases by the EEOC. And as I understand from what you are saying, after 4 years as chairperson of the EEOC, you don't believe that to be the case, that these are additional kinds of remedies and that, as I understand what you're saying, you believe that increasing these remedies would enhance the possibility for real equity and justice.

Ms. NORTON. That is a possibility for equity and probably enhance the possibility for settlement. I think that employers are going to want to use the process to try to settle the cases to avoid going further into court and having to encounter fees because they know that compensatory damages may, of course, arise there as well.

The CHAIRMAN. Your statement indicates you believe the U.S. Supreme Court's decision in Price Waterhouse seriously undermines the objectives of title VII. But opponents of our response to the decision assert that our bill would punish discriminatory thoughts even where they do not lead to discriminatory action. Would you explain why that just isn't so?

MS. NORTON. The notion that title VII ever allowed thoughts as evidence is a surprise to me. If it doesn't allow thoughts as evidence when there is only one motivating factor, I don't see how it could allow thoughts as evidence when there are two.

There must be direct evidence of discrimination. One, at least one of that one piece of that direct evidence may have been the motivating factor. Another piece may have been a contributing factor in order to deter discrimination in that workplace. The employer at

the remedy stage ought to be liable if the court finds that there is liability. For example, there may have been physical distress as a result even though the person wasn't entitled to the job.

The point, I think, here is that this statute is not only remedial, it means to deter, it means to get rid of employment discrimination in the workplace. And if in fact a message we send to employers is that you are not liable even though we have found that discrimination exists in your workplace, then I think we have undermined the basic purpose of the statute to eliminate discrimination in the workplace. We are saying we are only eliminating some discrimination in the workplace.

The CHAIRMAN. So your reading as well as those of the responses is we're not talking about thoughts, we are talking about motivating factors.

Ms. NORTON. There has to be direct evidence of a motivating factor. Thoughts are no more evidence in a mixed-motive case than they are in a single-motive case.

The CHAIRMAN. All right. Could you just tell us, explain how the court's decisions encourages unscrupulous employers to develop after-the-fact rationalizations for discriminatory actions?

Ms. NORTON. Price Waterhouse seems to me makes it virtually impossible to show that the employer's motivation was not thought of after the fact. The employer, after all, has the opportunity now to come forward and say it is this and not another factor. And how are we to decide, given the construction of proof in Price Waterhouse, when that motivating factor came into the picture.

I think that Price Waterhouse makes it very difficult to establish discrimination at all, and it gives the employer yet another bite, yet another chance to show that he did not discriminate and encouraging them to do so.

The CHAIRMAN. So this could really undermine in a serious way some of the progress, important progress that has been made? Ms. NORTON. I believe so, Senator.

The CHAIRMAN. Mr. Brown, we are glad to have you here. You have had a full day.

Mr. BROWN. Mr. Chairman, I certainly apologize.

The CHAIRMAN. No, it is very understandable. We mentioned in your absence that you were over testifying before a joint committee hearing in the House.

We are delighted to have you here. We mentioned earlier that you chaired the commission during the Nixon administration, and are currently a member of the law firm of Schnader, Harrison, Segal and Lewis, in Philadelphia.

We would be glad to hear from you.

Mr. BROWN. Mr. Chairman, I appreciate the opportunity of appearing before you. I certainly again apologize for the delay in getting over here.

I think, Mr. Chairman, that as I look at my own background, I perhaps have had an advantage of looking at the problems of equal employment opportunity from three different perspectives.

The first was when I was a young practicing attorney in Philadelphia during the 1950's and early 1960's when I primarily represented plaintiffs in civil rights cases and particularly in those cases involving employment discrimination. I shared the kind of frustra

tion and concerns that most minorities and women faced when attempting to get a job because my own personal background and my own personal experiences clearly indicated that discrimination was rampant, was not limited to the South but indeed was just as blatant in my own home city of Philadelphia.

Having left Philadelphia in 1968, I then at first became a commissioner on an interim appointment under President Johnson at the Equal Employment Opportunity Commission, where I served for some 6 months, then was named to a position and confirmed by the Senate under President Nixon, as you have indicated, and named chairman and remained chairman from about May of 1969 until December of 1973.

When I left the Government, I came to the law firm that I am presently a partner with, and in that capacity since 1974 have primarily represented major corporations in defending them against charges of discrimination. But I think of perhaps equal and even greater importance, I serve as a consultant in assisting them in making certain that their policies and programs bring and keep them in conformity with title VII and all the civil rights acts. So that I think that I do have that broad perspective.

I can remember, Mr. Chairman, in the early days of the commission when we were completely without enforcement powers, the kind of hopelessness and frustration that all of us at the commission felt. And in spite of that, we did accomplish, I think, some significant achievements in spite of the lack of enforcement, one of which, I think as I look back on it, was looking at the commission when the Griggs case was up for discussion.

We had taken the position at the commission that those types of selection devices, even though they were fair on their face but had a disparate impact, was a violation of title VII. And having taken that position, I can remember now as clearly as if it was yesterday the kind of elation and almost euphoria which swept the commission when we were advised of the decision of the U.S. Supreme Court, a decision 8-0, and a decision given by Chief Justice Burger. I think unfortunately at that time many of us felt that the problems of discrimination would be greatly lessened, that the impact of Griggs would change the profile of many employers across this country both in terms of their minority/nonminority setup as well as the male/female relationship. Unfortunately, that was not to be. I look back at that time and remember the kind of cry that went up from many employers who felt that they could not meet the Griggs decision. In spite of that, the experience which I have had indicates that not only were they able to meet the Griggs standard, but they have continued to operate under that for some 18 years. If there is anything that causes most corporations the kind of concern that is generally expressed, it is the lack of stability, the lack of definiteness, the lack of knowing exactly what standard they are going to be held accountable for.

The Wards Cove decision, I believe, has now once again thrown this whole area into complete turmoil. And I think it is critical because I believe that the civil rights legislation of 1964, and particularly title VII of that act, was perhaps one of the most important pieces of legislation certainly in this century.

I am absolutely convinced that the employers across this country have been able to meet those standards. There is no question, when we look back at some of what we view now as being almost asinine kind of requirements for jobs, the use of application forms which asked all sorts of needless questions, the use of a high school diploma for jobs which clearly did not require that.

There is no question that those things have been changed dramatically. And from my own experience, most employers felt and continue to feel that the changes brought about because of title VII and because of the Griggs decision and other decisions which came along behind it, have not only improved the working relationship and the opportunities for minorities and women, but of even greater importance, has improved indeed the entire workforce and the way that all employees are being treated. And I think that is a decided benefit.

As I look, Mr. Chairman, and having read, as I am sure that you and the other members of this committee, the study done by the Hudson Institute, the Workforce 2000 study, which clearly indicates that by the turn of the century the overwhelming majority of people entering the workforce for the first time will be minorities, immigrants, and women, and that that workforce will continue to shrink at a time when even greater numbers are going to be required, even greater numbers of people with higher skills because we are entering into a more technical world than what we have been used to in the past, it will be those employers who make equal employment a major part of their organization and not just give pure lip service to us who will be able to compete for this dwindling supply of needed employees.

I am prepared to speak not only as to the Wards Cove decision. and the impact of Griggs, but I am also willing to discuss, to the extent that I may be prepared to do so, those issues that are contained in your bill at the pleasure of the committee.

I have deliberately tried to keep my remarks as brief as possible, realizing, of course, the tremendous limitation on time that you have. And I am at this point willing to answer any questions that the members of the committee might have.

[The prepared statement of Mr. Brown follows:]

PREPARED STATEment of WILLIAM H. BROWN III

Mr. Chairman and Members of the Committee: My name is William H. Brown III and I have been active in the field of civil rights for nearly 35 years with a significant portion of that time being spent in employment discrimination and related matters. During the late 50's and early 60's, I represented many individuals, who felt that their civil rights had been violated. The majority of these individuals were represented on a pro bono basis.

Given an interim appointment by President Lyndon B. Johnson, I served as a member of the Equal Employment Opportunity Commission from October of 1968 until May of 1969. President Richard M. Nixon submitted my name to the Senate for confirmation and after being confirmed, I was designated Chairman of the Commission, serving in that capacity from May of 1969 until December of 1973.

Since early 1874, I have been a law partner in the Philadelphia based law firm of Schnader, Harrison, Segal & Lewis representing primarily major corporations in employment discrimination and related matters. I represent these clients not only in litigation around the country but of even greater importance, I serve as a consultant to these corporations, advising them as to how best to comply with the equal employment laws in a way which will allow them to carry out their corporate obligations in the most responsible manner.