Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, March 5, 1991 TAG: 9103051214
SECTION: NATIONAL/INTERNATIONAL PAGE: A/3 EDITION: EVENING
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
John Dunne, the assistant attorney general for civil rights, told Congress that the decision won't impede lawsuits over allegedly discriminatory employment practices.
Justice Department lawyers, however, have cited the case of Wards Cove Packing Co. vs. Atonio\ 1 three times to defend government agencies against job-bias lawsuits, according to court records and lawyers.
Told about the department's use of the case to defend government agencies, Rep. Don Edwards, D-Calif., said, "This is not what the assistant attorney general for civil rights told us at the hearing."
"Here we have the federal government being sued and using the decision of the court to thwart these minorities who might have had a case had it not been for Wards Cove," added Edwards, who chairs the House Judiciary subcommittee on civil rights.
In its 1989 Wards Cove ruling, a sharply divided Supreme Court made it easier for employers to refute claims of racial bias based on statistical evidence. The 5-4 decision overturned a ruling that had favored Filipinos, Alaska natives and Asians employed at Alaska salmon canneries.
The decision was condemned by civil rights advocates.
In one case in which they cited the ruling as a defense, Justice Department lawyers said the decision "completely demolished any basis for proceeding to trial" on allegations that promotion practices discriminate against black employees of the Library of Congress. That case is pending.
The debate over the issue is raging again as Congress resumes efforts to pass civil rights legislation vetoed last fall by President Bush.
Congressional and administration negotiators were unable to agree before the veto on compromise language for setting aside Wards Cove.
At a congressional hearing last month, Dunne said the Justice Department had determined that despite Wards Cove, "legitimate disparate-impact claims can still be brought and won."
Dunne said that of the cases studied, 11 rulings were made in favor of plaintiffs "after full application of the Wards Cove principles." Defendants won 14 other decisions, he said.
He did not mention the Justice Department's use of the case in defending government agencies against charges of discrimination.
Within days of the 1989 ruling, Justice Department attorneys cited the Wards Cove case to successfully urge U.S. District Judge Thomas Hogan to deny summary judgment to black employees of the Bureau of Engraving and Printing.
During a hearing, Hogan said that before Wards Cove, he had been prepared to rule for black employees who had charged that tests had unfairly kept them from apprenticeship programs, said David Donovan, attorney for the workers.
The case ultimately was settled out of court, with the agency agreeing to pay $1.4 million to blacks denied admission to the apprentice program.
Another federal judge here last year rejected the Justice Department's argument that Wards Cove necessitated dismissal of claims that black clerical employees of the department's tax division were unfairly denied promotions.
In its 1989 decision, the court said that when minorities use statistics to show they are victims of job bias, employers need only produce evidence that there is a legitimate reason for the business practice. The court thus passed the burden to the plaintiffs to prove that the employment practice was not necessary to business operations.
by CNB