There is much of value in the omnibus bill unveiled last week by a bipartisan congressional coalition and leading civil-rights groups to reverse several major Supreme Court decisions last year. But the bill needs some amending.

The remedies available to victims of intentional job discrimination under current law are plainly inadequate. That was made clear by the Court’s decision last June in Patterson v. McLean Credit Union, which denied any legal redress to victims of even the most outrageous racial harassment in the workplace.

The proposed Civil Rights Act of 1990, co-sponsored by 34 senators and 123 House members, would rectify this by giving the full range of compensatory and punitive damages to victims of intentional job discrimination.

It’s sad that the Bush administration’s more limited proposal-to improve monetary redress only in cases of intentional racial discrimination-comes so late, in an apparent effort to pre-empt the congressional bill.

But methinks the champions of that bill protest too much when they insist, in the words of the Leadership Conference on Civil Rights, that it "has nothing to do with quotas or any other affirmative-action remedy."

If enacted and enforced as written, the bill’s disparate-impact provisions would create a powerful presumption that any employer with a workforce in which minorities were significantly underrepresented was guilty of racial discrimination.

The bill would also make the burden of overcoming this presumption so heavy that it could pressure employers surreptitiously to use quotas to improve their statistics-hiring and promoting racial minority-group members or women, as the case may be, on a preferential basis over equally or better qualified white males.

In fairness to the bill’s sponsors, it is probably impossible to draft language strong enough to eradicate all employer practices that deliberately or unthinkingly exclude well-qualified minorities, but not so strong as to provoke some employers to use quotas to avoid liability.

Too Strong a Dose

A limited degree of pressure on employers to give some preference to minorities may be the lesser of evils. It might help break down our noxious patterns of racial hierarchy, the legacy of past discrimination that has condemned many blacks to be poor, badly housed, badly educated, and badly equipped to compete for jobs. But disparate-impact rules creating such pressure are strong and socially divisive medicine, and the new bill as written would administer too heavy a dose.

The dosage can be adjusted without going to the opposite extreme of severely hobbling disparate-impact plaintiffs as the Court did last June in Wards Cove Packing Co. v. Atonio.

Many a disparate-impact suit was settled by an employer’s agreement to adopt racial preferences in the years before the 5-4 Wards Cove decision. And overruling Wards Cove is a central purpose of the proposed Civil Rights Act of 1990; indeed, the disparate-impact provisions would arguably go beyond that and impose a heavier burden on employers than ever before.

Plaintiffs could make out a prima facie case of job discrimination against blacks, for example, simply by showing that the percentage hired or promoted was lower by a statistically significant margin than the percentage of qualified blacks in the area workforce.

The new bill specifies (contrary to Wards Cove) that the plaintiffs would not have to identify any particular selection criterion as racially discriminatory. And the case law suggests that "qualified" means "minimally qualified"; the pool is not limited to those an employer might consider well-qualified.

In a hypothetical disparate-impact suit against a big corporate law firm, for example, the percentage of black associates hired might be compared with the percentage of blacks among all licensed attorneys in the area. Not many big firms would fare well in such a comparison.

Shifting the Burden

Once disparate impact has been established, the new bill would shift the burden to the employer to justify the selection process. This is as it should be: Employers are in a better position to establish job-relatedness than plaintiffs are to establish lack thereof. The decision in Wards Cove to place this burden on plaintiffs was inconsistent with precedent and justified neither by logic nor by experience.

But in specifying that employers can carry their burden only by proving their selection criteria are "required by business necessity"-and defining that to mean "essential to effective job performance"-the new bill goes too far.

Is it "essential" in promoting firefighters to choose those with relatively high grades on written exams designed to measure their mastery of books on firefighting techniques? Many courts have held that it is not.

And many city fire departments (and police departments and other blue-collar employers) have avoided liability for using such tests by agreeing to consent decrees requiring racial preferences.

Forever Temporary

Many of these employers have also maintained "temporary" quotas for four, six, eight years and more, often favoring minority candidates over whites who were better qualified by every available measure, because this was easier than devising new tests that could be proved "essential."

(Another provision of the new civil-rights bill- overruling another Supreme Court decision last June, Martin v. Wilks-would insulate racial preferences in such consent decrees from reverse discrimination suits by whites, indefinitely.)

Is it "essential" for a prestigious law firm to confine its recruiting and hiring to high-ranking students at top law schools? Not merely useful, convenient, or reasonable-but essential? It’s hard to see why. Fortunately for the law firms, few non-white lawyers seem inclined to start out their careers as plaintiffs in disparate-impact suits.

But in blue-collar job categories, the new bill as written could foster the kind of reverse discrimination against whites that Sen. Edward Kennedy (D-Mass.) and other sponsors so vigorously disavow.

The bill’s disparate-impact provisions should accordingly be amended. The best way to do it would probably be to cross out "essential to effective job performance" and substitute something like "demonstrably useful in selecting the best qualified candidates for the particular job."

Such a formulation should force employers to make sure their selection criteria do not needlessly screen out minorities, without creating unduly strong incentives for quotas or preferences.

Proponents of the civil-rights bill angrily reject what Sen. Kennedy calls the "rhetorical smoke screen" that their bill has something to do with affirmative action. Rather, they contend, as Kennedy puts it, that their disparate-impact provisions would help "victims of discrimination" win simple justice from employers who use "subtle and not-so-subtle practices designed to keep minorities and women from participating fully and fairly in our economy."

But under their bill as written, the beneficiaries of disparate-impact suite would not necessarily be victims of discrimination. And the defendants would not necessarily be guilty of anything but hiring and promoting the people they consider the best qualified.