
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, July 23, 1990                   TAG: 9007230308
SECTION: EDITORIAL                    PAGE: A/7   EDITION: METRO 
SOURCE: JAMES J.  KILPATRICK
DATELINE:                                 LENGTH: Medium

RULE BY NUMBERS

CONTRARY to what some conservatives are saying, the civil-rights bill just railroaded through the Senate is not a wholly bad bill. Two sections have merit and ought to be separately adopted. The rest of the bill is seriously flawed and ought to be dumped.

One useful provision would overturn the Supreme Court's decision last year in a case involving seniority. A second desirable section would overrule the high court's decision in a matter of sexual harassment. In both instances, the court correctly upheld the literal wording of the law, but the law itself operates unfairly.

That is the best that can be said of the Senate bill. It came to the floor last week bearing the burden of false pretenses. Sponsors would have us believe that the key provision does no more than to restore certain employment provisions that were modified by the Supreme Court last year. This contention is nonsense.

In point of fact, this sweeping bill would make dramatic changes in the entire scope of civil rights law. The Senate was not dealing last week with some little old modest measure to overturn six high-court decisions. The thrust of the most controversial section is to impose a kind of monarchy on the workplace. We are to have rule by King Numbers.

The bill reverses the familiar presumption by which one is presumed innocent until proved guilty. Here an employer is presumed guilty and must prove his innocence. Toward that end, Section 4 of the bill makes it an "unlawful employment practice" if an employer's requirements result in a "disparate impact" on the basis of race, sex, religion or national origin.

An oversimplified example, drawn from the Senate committee report, will demonstrate the mischief. Let us suppose that 1,000 plumbers are available in a given city. Of these, 200 are black. The ABC Corp., a large plumbing contractor, regularly employs 100 plumbers. They are hired if they have graduated from a trade school, have one year of experience, and can present satisfactory references during an interview.

Along comes Joe Johnson, a black applicant who has not graduated from a trade school and has only six months of experience. He applies to ABC and is turned down. He sues, charging that ABC's hiring policies have had a "disparate impact" upon the black community. Instead of having 20 minority plumbers, the company has only 10.

On this evidence the company stands guilty as charged. The employer is now subject to heavy damages. The rejected applicant "shall not be required to demonstrate which specific practice or practices result in such disparate impact." On the contrary, it is up to the employer to prove that all of his conditions are "essential," that they are required by business necessity - that is, that the requirements bear a "substantial and demonstrable relationship" to effective job performance.

Such a burden of proof would be formidably difficult to establish in court. Is a trade-school certificate necessary? Is a year's experience too much to require? Are references a matter of subjective decision that could be racially biased? Defending Johnson's suit is expensive, not only in lawyers' fees but also in the time of executives who must be taken from their regular duties. Johnson, of course, has a lawyer who works on a contingent basis.

What is the ABC Corp. to do? People who live in the real world know exactly what ABC will do. The company will bow to the rule of King Numbers. It will drop 10 white plumbers and hire 10 black plumbers (never mind their education, experience or references), and its payroll will then meet the 20 percent minority quota. There will no longer be a demonstrable "disparate impact."

Of course, the 10 abandoned white plumbers may gang up and sue for reverse discrimination, thus giving employment to lawyers after all. The prospect is for a litigious nightmare as new language is tested in court. The term "required by business necessity" means "essential to effective job performance," but the definition is fashioned of fog. Prudent employers will play the percentage game.

Give the sponsors of the bill credit for good intentions. Deliberate, willful racial discrimination is indefensible. If the ABC Corp. turned Johnson down just because of his race, let ABC suffer the consequences. But first let Johnson prove his case. Universal Press Syndicate

by CNB