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Civil Rights Bill Will Spur Suits, Change Way They’re Decided

October 31, 1991

WASHINGTON (AP) _ In the battle over a new civil rights law, lawyers for both workers and employers agree on a couple points at least: The bill nearing enactment will encourage new discrimination suits and bring big changes in the way they are decided.

″It’s monumental,″ said Kerry Scanlon, assistant counsel for the NAACP Legal Defense and Educational Fund. ″It will provide an incentive for people to start bringing these cases again and provide protection on the job that hasn’t been there for the last two years.″

″You’re just going to have more and more lawsuits,″ said Larry Lorber, an employment lawyer who represents corporations. ″There’s an enormous incentive for these type of problems to be promoted into a federal case.″

The civil rights bill, which the Senate passed overwhelmingly Wednesday and which President Bush has promised to sign, has been caught up in two years of politically charged debate over quotas and racial politics.

For lawyers who handle job discrimination cases, however, the quotas debate had little to do with the substantial legal changes that the complex and lengthy legislation will bring, both to the workplace and the courtroom.

The legislation had its genesis in a series of Supreme Court decisions in 1989 that, cumulatively and individually, made it more difficult for plaintiffs to win suits charging discrimination in hiring and promotions.

The bill would not only overcome those court decisions but would go beyond to establish significant new employment law, according to attorneys on both sides of the debate.

Importantly, the legislation establishes the right to jury trials in job discrimination cases brought under the previous landmark act, the Civil Rights Act of 1964. And it establishes that compensatory damages may be awarded, not only in racial discrimination cases where they have been permitted under a Reconstruction era law, but in cases of sexual, age and religious discrimination.

In those areas, plaintiffs until now have been limited to receive only back pay.

The bill includes limits or ″caps″ on those damages, of $50,000 for the smallest companies to $300,000 for the largest. Those caps are opposed by women’s groups and many liberals, who promise to file new legislation to lift them.

But even those limited damages create new incentives to sue, in the view of lawyers for employers. They are ″the pot at the end of the rainbow,″ in the words of Lorber, who is outside counsel to the Business Roundtable, a group of the nation’s biggest corporations.

Jeff McGuiness, an employment lawyer and president of the Labor Policy Association, a group of 160 employers, says he has been besieged with calls from corporate lawyers concerned about the changes.

The association, which opposed the bill, is feeling ″battered″ by the outcome and ″abandoned″ by Bush, who reached an agreement to support the bill, McGuiness said.

″Attorneys are just going off the wall,″ he said. ″It’s been several days of gloom and doom.″

From the plaintiffs’ perspective, the damages will make it more worthwhile to file suits, and negating the court decisions will return discrimination laws to the way they were for most of the past two decades.

″Litigation challenging employment discrimination had come to a virtual halt as a result of these restrictive decisions,″ said Scanlon. ″In virtually every phase of job bias cases, the Supreme Court had made it harder on victims. The filing of these new cases had virtually dried up. It was just too difficult to win these cases.″

The effects may be seen on existing cases, too. Although the bill says its provisions are effective upon enactment, lawyers on both sides of the issue agree that courts will have to decide in each case whether pending matters and those still on appeal will be decided under the new law.

To find an example, Congress need look no farther than across the street. The Library of Congress has been the defendant in a class action suit for nearly a decade. Plaintiffs charge blacks were discriminated against in promotions.

That case is likely to be affected by the provision that negates the so- called Ward’s Cove decision of 1989, which had put the burden on plaintiffs rather than defendants in such statistics-based cases of alleged unintentional bias, said Scanlon, who helped argue the Library of Congress case for the plaintiffs.

″It will have a tremendous impact, because there are hundreds of these cases on appeal or pending,″ Scanlon said.

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