When President Bush caved in to pressure from civil rights groups and signed a 1991 law making it easier for women and minorities to win damages for job discrimination, employers were glum. But, they figured, all was not lost. A Republican Justice Dept. would no doubt fight for the narrowest interpretation, limiting companies' exposure to costly lawsuits.
Now the GOP is out of power, and business fears the worst. Although the Clinton Administration has so far made little civil rights policy, its selections for top jobs suggest it will aggressively enforce and perhaps expand antidiscrimination laws. "There's more than enough incentive for the private bar to bring cases" without new legislation, complains Stephen A. Bokat, general counsel for the U.S. Chamber of Commerce.
The most important and most controversial appointee is Lani Guinier, a University of Pennsylvania law professor tapped to head the Justice Dept.'s Civil Rights Div. Guinier's views on the Voting Rights Act have galvanized enough conservative opposition to set up a real fight in the Senate Judiciary Committee when her confirmation hearing is held, probably in June.
Guinier, 43, argues in her academic writings that minorities' power could be enhanced by "cumulative voting" in state and local elections. In such a system, if five city council members are to be elected, voters could cast five votes for one candidate, boosting chances of a minority victory. She would increase the legislative power of minorities by requiring supermajorities to pass laws. That would give great bargaining power to a cohesive minority because it could block passage the way southerners once used filibusters to thwart civil rights laws.
Conservatives say this amounts to affirmative action for electoral and legislative outcomes--and suggests she might back job and other quotas. "She represents the most radical view of American government in recent memory," says Clint Bolick of the conservative Institute for Justice.
Liberals insist the right just wants to get even for the defeat of Supreme Court nominee Robert H. Bork and other conservatives. "This is an attempt to tarnish the President by linking him to support for quotas," says Wade Henderson, the NAACP's Washington director.
Conservatives would be less upset if they only had to worry about Guinier. But Clinton has chosen Democratic interest-group stalwarts for many key civil rights positions. These include Norma V. Cantu of the Mexican American Legal Defense & Educational Fund for the Education Dept., Dennis W. Hayashi of the Japanese American Citizens League for the Health & Human Services Dept., and Joseph Sellers of the Washington Lawyers' Committee for Civil Rights, who is expected to be named to head the Equal Employment Opportunity Commission.
CAP TROUBLE. Business lobbyists have largely remained on the sidelines of the fight over Guinier. But they do worry about civil rights policy. The Justice Dept. has reversed the Bush Administration's stance against applying the 1991 law to cases in progress when it was passed. The Supreme Court will hear two of these cases next fall, and companies fear that such retroactivity could expose them to millions of dollars in damages. Even worse, from business' point of view, is Attorney General Janet Reno's endorsement of legislation that would remove the 1991 law's $300,000 cap on damages for victims of on-the-job sex discrimination.
Bill Clinton has been courting business assiduously. But corporate leaders tend to be impressed more by policy actions than Presidential sweet talk. And to a business community already worried by health-care-reform plans, the leftward drift of civil rights policy is one more cause for alarm.