SENATE-Tuesday, July 17, 1990 - US Government Publishing ...

July 17, 1990 CONGRESSIONAL RECORD-SENATE

SENATE-Tuesday, July 17, 1990 17647

The Senate met at 10 a.m., on the expiration of the recess, and was called to order by the Honorable TOM HARKIN, a Senator from the State of Iowa.

The PRESIDING OFFICER. Today's prayer will be offered by our guest chaplain, Father Tim O'Brien, of Marquette University, Milwaukee, WI.

PRAYER Father Tim O'Brien, Marquette Uni

versity, Department of Political Science, Milwaukee, WI, offered the following prayer:

Let us pray: Heavenly Father, we acknowledge

You as the author of all that is good; we praise You for Your countless gifts and for the opportunities You grant us to create a world that is humane, that is just, and that reflects Your goodness.

Bless this legislative Chamber, its Members and staffs. Inspire them to pursue Your will, to labor energetically in the creation of a vibrant republic-a society rich in diversity and egalitarian in hope and opportunity.

Help us to live as Your people, caring for those who are weak, hearing the voices of those oppressed, challenging those who are blessed, and inspiri:i;>.g all to live peaceably with respect for Your Earth and love for its peoples.

For this we pray. Amen.

APPOINTMENT OF ACTING PRESIDENT PRO TEMPORE

The PRESIDING OFFICER. The clerk will please read a communication to the Senate from the President pro tempore [Mr. BYRD].

The assistant legislative clerk read the following letter:

U.S. SENATE, PRESIDENT PRO TEMPORE,

Washington, DC, July 17, 1990. To the Senate:

Under the provisions of rule I, section 3, of the Standing Rules of the Senate, I hereby appoint the Honorable ToM HARKIN, a Senator from the State of Iowa, to perform the duties of the Chair.

ROBERT C. BYRD, President pro tempore.

Mr. HARKIN thereupon assumed the chair as Acting President pro tempore.

<Legislative day of Tuesday, July 10, 1990)

RECOGNITION OF THE ACTING MAJORITY LEADER

The ACTING PRESIDENT pro tempore. Under the previous order, the acting majority leader is recognized.

THE JOURNAL Mr. CRANSTON. Mr. President, I

ask unanimous consent the Journal of the proceedings be approved to date.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

SCHEDULE Mr. CRANSTON. Mr. President, this

morning following the time reserved for the two leaders, there will be a period for the transaction of morning business not to extend beyond 11 a.m., with Senators permitted to speak therein for up to 5 minutes each. The time between 11 and 12 noon today will be equally divided and controlled between Senators KENNEDY and HATCH, for the purpose of debate only on S. 2104, the civil rights bill.

Mr. President, at 12 noon today, the Senate will vote on the Hollings motion to table the Wilson amendment <No. 2204). Upon disposition of that amendment, the Senate will then vote on the Thurmond motion to table the Gorton amendment <No. 2211).

At the conclusion of that vote, the Senate will recess until 2:15 p.m., in order to accommodate the party conferences.

Upon reconvening at 2:15 p.m., the Senate will vote on final passage of H.R. 4328, the textiles bill. Immediately following that, there will be the cloture vote on the Kennedy-Jeffords substitute amendment for S. 2104, the civil rights bill.

RESERVATION OF THE MAJORITY LEADER'S TIME

Mr. CRANSTON. Mr. President, I ask that the time for the majority leader be reserved for his use later in the day.


The Chair recognizes the senior Senator from Wisconsin.

THE PRAYER OF THE VISITING CHAPLAIN

Mr. KASTEN. Mr. President, I rise today with great pride and pleasure to

welcome to the Senate our guest chaplain, Rev. Timothy O'Brien, of Marquette University in Milwaukee, WI.

Father O'Brien is a dedicated clergyman and a respected intellectual. He is even more than that, he is a true friend of the whole Milwaukee community, and a good friend of mine.

He has been a priest of the Archdiocese of Milwaukee for 21 years, and a professor of political science at Marquette since 1977. He is the author of an important study entitled "InnerCity Public Schools," as well as the producer of the television documentary "Miracle in the Inner City."

Many here in Washington know him as the guiding light behind the Marquette University Congressional Intern Program, which every year sends some of Marquette's finest young scholars to the Halls of Congress.

I am pleased every summer we have had a Marquette intern working at our office.

I know the Senate will join me in extending a warm welcome to our distinguished guest, Father O'Brien.

RESERVATION OF THE REPUBLICAN LEADER'S TIME The ACTING PRESIDENT pro tem

pore. Without objection, the time of the Republican leader is reserved.

MORNING BUSINESS The ACTING PRESIDENT pro tem

pore. Under the previous order, there will now be a period for the transaction of morning business not to extend beyond the hour of 11 a.m., with Senators permitted to speak therein for up to 5 minutes each.

Mr. CRANSTON. Mr. President, I suggest the absence of a quorum.

The ACTING PRESIDENT pro tempore. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. WALLOP. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.


Mr. WALLOP. Mr. President, may I proceed in morning business?

The ACTING PRESIDENT pro tempore. The Senator is recognized.

e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

17648 CONGRESSIONAL RECORD-SENATE July 17, 1990 CELEBRATING U.S. TECHNICAL

INGENUITY AND THE BICENTENNIAL OF ADAM SMITH'S DEATH Mr. WALLOP. Mr. President, 200

years ago today, Adam Smith died. But the system of economic organization that he so memorably explained and propounded has never been healthier. Because Adam Smith was convinced that the market would, literally, deliver the goods, he wanted it left alone.

Two hundred years later, our own Silicon Valley once again illustrates this point. Last Thursday, Conductus, a tiny Silicon Valley startup got a jump on its Japanese competitors by unveiling what is believed to be the world's first factory dedicated to making superconducting chips.

Conductus' factory flies in the face of warnings that government-backed Japanese conglomerates, which have poured hundreds of millions of dollars into superconductor research since 1987, are winning the race to move the material from the laboratory to the marketplace. Conductus says it already has orders for prototype chips from seven U.S. companies.

Conductus was formed in September 1987 soon after researchers in Zurich and later in Texas discovered superconductors that work at much higher temperatures than originally thought possible. The new high temperature materials, which conduct electricity with almost no resistance at about minus 250 degrees Fahrenheit, are considered ideal for use in extremely fast computer chips. But the new materials, a type of ceramic, are hard to form into usable shapes, such as the thin films of material needed to create microscopic circuits on chips. But Conductus tackled that problem at its new factory by using mostly secondhand semiconductor-making equipment.

Obviously, innovation is more than having the most sophisticated laboratory equipment. For Conductus, the key has been the skill of its staff in developing their "secret black magic," as Conductus' vice president calls it. This magic was their ability to invent equipment for thin film deposition. Their success can be attributed to Conductus' ability to woo researchers from around the United States. Its top executives are scientists and lab managers originally from companies like IBM and Rockwell.

Mr. President, I bring this case to the attention of my colleagues because it caused me to pause and to marvel afresh at this fabulously powerful mechanism-the free market.

Despite the collapse of communism, despite the triumph of market economics, despite Ronald Reagan and Margaret Thatcher, state socialism still burdens nearly every sphere of economic life around the world. This is not because the theorists of big gov-

ernment have won the argument. They have not. In fact, they have been discredited by recent events.

However, too many people have grown so accustomed to pervasive Government that they no longer even notice it. Thus, there continues to be a clamor for Government intervention, whether in the form of public welfare or a State industrial policy.

But the example of Conductus bears witness to the dynamic power of the market, unfettered and unencumbered. Many, in their fear of Japanese economic domination, denounced the Reagan administration for refusing to pump millions of dollars into the superconductivity industry in hopes of supplanting the Japanese threat.

They have forgotten something that Adam Smith saw clearly: Every advantage granted by Government to one part of the economy puts the rest at a disadvantage. Government intervention, through subsidies or through Government support of specific technologies, is offered as though it costs nothing; the beneficiaries demand it as of right.

But subsidies are financed not by themselves but by taxes. And taxpayers, forced to spend money on the Government determined product, will spend less on other things they do want, so that other producers will sell less, earn less and employ fewer people. All too often, Government intervention is in itself a cause of the market breaking down-which becomes the reason for further rounds of intervention, and the process goes on.

So let us take the concurrence of these two events-the bicentennial of the death of Adam Smith and the unveiling of Conductus's factory for making superconducting chips-as reason to take stock. Let us take a moment to celebrate U.S. inventiveness which is based on the ingenuity of the free market.

Two centuries later, free trade is not just a matter of the cheapest supply; it is also the best way to force producers to compete. Although we cannot yet rule out the possibility of Japan's bringing a product into the market more quickly, Conductus's vice president believes his company to be closer to commercialization than the Japanese. And with the prospect of success, and thus profitability, the market will induce other firms to enter the competition, thus increasing the likelihood of turning the idea into a product.

As progress in the fields of telecommunications and transportation continue to shrink the size of our globe, trade and competition need each other more now than ever before. Our prosperity, indeed our survival, depend on it. I ask unanimous consent that a recent article from the Wall Street Journal on Conductus be printed in the RECORD at the conclusion of my remarks.

The PRESIDING OFFICER <Mr. ROBB). Without objection, it is so ordered.

<See exhibit U Mr. WALLOP. Mr. President, for

those Americans who continue to think there is no hope for us in a world to be dominated by the Japanese, I think Conductus' record and the fact that Conductus has just opened the world's first factory to make superconducting chips absent a major Government program of intervention, speaks to the future in the most positive kind of way. The Congress would do well to take a lesson from this event. If we rely on the ingenuity of the American engineers and technicians and the marketplace, our country will be stronger in our ability to bring new ideas from the laboratory to the marketplace.

EXHIBIT 1 [From the Wall Street Journal, July 12,

1990] CHIP MAKER GETS A JUMP ON JAPANESE

<By Stephen Kreider Yoder> A tiny Silicon Valley start-up will get a

jump on the Japanese today when it unveils what is believed to be the world's first factory dedicated to making superconducting chips.

The three-year-old company, Conductus Inc., has quietly turned out experimental chips at its factory since March for companies such as Hewlett-Packard Co., which bought a stake in the closely held company in 1988.

Conductus's factory flies in the face of warnings that government-backed Japanese conglomerates, which have poured hundreds of millions of dollars into superconductor research since 1987, are winning the race to move the material from the laboratory to the marketplace. The company said it already has orders for prototype chips from seven U.S. companies.

"FLAG CARRIER" IN SUPERCONDUCTORS

Conductus "is moving very quickly from superconductors as a material-science curiosity into developing them into prototype devices," said Rod K. Quinn, director of Los Alamos National Laboratory's exploratory research and development center, who warned of a Japanese superconductivity juggernaut after a visit to Japan last year. Conductus "is becoming a flag carrier" for the U.S. in superconductivity, he said.

Conductus was formed in September 1987 by venture capitalists, soon after researchers in Zurich and later in Texas shook the world with the discovery of superconductors that work at much higher temperatures than originally thought possible. The new "high-temperature" materials, which conduct electricity with almost no resistance at around minus 250 degrees Fahrenheit, have the potential to be more economically viable than older superconductors, which operate at about minus 420 degrees, because it costs less to cool them. They're considered ideal for use in extremely fast computer chips.

But the new materials, a type of ceramic, are hard to form into usable shapes, such as the thin films of material needed to create microscopic circuits on chips. Conductus tackled that problem at its 4,000-square-foot factory by using mostly secondhand semiconductor-making equipment, but "we had

July 17,. 1990 CONGRESSIONAL RECORD-SENATE 17649 to invent equipment for thin film deposition," said Vice President Ora Smith. "That's where our secret black magic lies."

Nlr. Quinn of Los Alamos concurred that Conductus' technology is "remarkable.' ' He attributed it to Conductus' success in wooing researchers from around the U.S. Its top executives are scientists and lab .managers originally from companies such as International Business Machines Corp. and Rockwell International Corp. Its advisory board includes a blue-ribbon roster of professors from schools such as Stanford University and the University of California in Berkeley.

Conductus makes chips to customers' specifications using either low-temperature or high-temperature superconductors. The company said it will focus on electronic applications rather than on "power" applications, such as electric c-i Jles and . 1agni;tic;:i !ly levitating trains. Conductus said one customer. for example, is designing Conductusmade chips into equipment to detect objects in space. Superconducting chips filter out extraneous signals better than conventional chips do.

The company also expects to make chips for super-fast computers, telecommunications equipment, satellites' "eyes" that can see stars better, and medical equipment that can look into the human body more safely than X-rays. The company said it's discussing with the National Aeronautics and Space Administration using chips in a Saturn mission to look at the planet's clouds.

A Hewlett-Packard official said the company has "great expectations" for work done by Conduct.us. Forward-looking research in superconductors is better done by small companies such as Conductus, he said. "It's a very valuable relationship for us," he added.

Investors have plowed $11.5 million so far into Conductus, which expects to be profitable by 1994. The company's factory in Sunnyvale, Calif., can only make about 25,000 chips a year, too few for mass commercialization, but the company said it may increase its capacity.

The company hasn't ruled out the Japanese threat. "We think we're closer to commercialization than the Japanese are," said Mr. Smith, the Conductus vice president. "But we know that as soon as we look successful, Japanese companies will be jumping in very actively.''

Mr. WALLOP. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.


Mr. KASTEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Wisconsin is recognized.

<The remarks of Mr. KASTEN pertaining to the submission of an amendment for printing are contained in today's RECORD under "Amendments Submitted.")

Mr. KASTEN. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The absence of a quorum has been suggested. The clerk will call the roll.


Mr. EXON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

THE TEXTILE BILL Mr. EXON. Mr. President, I rise in

support of the 1990 textile bill. The textile industry, like so many other industries in America, has been damaged by a flood of cheap labor imports.

The era of the 1980's will be remembered as the time when the United States turned over world leadership in a number of key industries including the textile and apparel, machine tools, semiconductors, and electronics to name just a few. In the 1990's, the dawn of the postwar cold era, America must decide whether the lapse of economic leadership in the 1980's will be temporary or whether it will be permanent. At the dawn of this new era, global leadership is coming to be de· fined in economic terms rather than military terms. Unless quick action is taken, America will pay dearly for the economic neglect of the 1980's.

As one who has frequently warned of the dangers of the supply side agenda I say 1990 should be a time when the United States draws the line and says "no more." While the George Bush, Clayton Yeutter, and Carla Hills h ave been singing the familiar song which can be best described as cheap is better, they continue to say cheap, cheap, cheap, and they continue to chirp, chirp, chirp like a birdie on this wornout and ill-gotten and illconsidered move.

Cheap imports have seen Americans lose their jobs, industries diminishing or going out of business, and economic futures threatened.

Mr. President, a nation needs industry to be strong. It needs production to create real wealth. Yes, the service sector is increasingly important to the U.S. economy but a strong nation cannot be built solely on a service economy. A strong economy needs production. Those who continue to talk cheap, cheap, cheap and chirp, chirp, chirp along those lines are shortsighted at best.

The question before the U.S. Senate is very simple. It must decide whether America wants a textile and apparel industry or not.

A vote in favor of this legislation will send a strong signal of solidarity with American textile and apparel workers, and certainly also to American farmers. It will send a strong message to the Bush administration that the American standard of living is not up for sale to the lowest bidder regardless of how cheap, cheap, cheap that might be in the short run.

The textile bill before the Senate would not roll back imports or close American markets. It would only control import growth to 1 percent a year.

Contrary to the claims of some, this proposal will also not harm consumers. It will in fact help American consumers. dne comment that I hear over and over from Nebraskans is that they cannot find American products in their favorite stores. There is a sense of frustration. and disappointment among shoppers. Today nearly 60 percent of apparel in America is imported, and well over 80 percent of the shoes in America are imported. The textile bill wilJ assure consumers that they continue to have a choice to buy American ev n thou0 l1 t!.a ' hoic~ to buy American is an ever-dwindling possibility.

Mr. President. Nebraska is not wellknown as a textile and apparel producing State. However, there are about 5,000 Nebraskans employed in various capacities in the American textile complex; down-down, Mr. President-by over 400 since Congress last considered textile legislation.

Presently there are 1,800 Nebraskans employed in the apparel sector, 140 in the textile sector, and about 3,100 Nebraskans are engaged in wool growing.

The good men and women, the workers and the farmers involved in the textile sector, deserve the support of the Congress. I have visited Nebraska apparel plants and know that the workers have great pride in their hard labor. I know Nebraska farmers who earn a little less money through wool production, and I know of Nebraska farm families who survive on a secondincome job provided by the textile or apparel industry.

I also know there are Nebraskans involved in the development of new fiber such as milkweed who simply need a chance to get their top-quality products onto the market. These Nebraskans work hard for relatively modest wages. Uncontrolled imports will be devastating to them. It is simply a matter of fairness.

If we are proceeding down this line that I have heard from some on the floor of the U.S. Senate in the last few days, which I want to refer to again as cheap is better, cheap, cheap, cheapthey continue to chirp, chirp, chirp without understanding what they are saying; without any understanding or appreciation-Mr. President, what they are preaching and what they would enhance if we do not pass this legislation is the further decline of the standard of living as we know it in the United States of America where by most standards we enjoy the good life.

Mr. President, I want to cite one realistic example that I think few too Americans understand or appreciate. A few years ago I was a member of a

17650 CONGRESSIONAL RECORD-SENATE July 17, 1990 delegation from the Senate that made a tour of the Pacific Rim countries.

One of our stops was in Hong Kong, and we visited there the Mattel toy factory. After the tour of the plant, we had a discussion with the plant manager. The question came comparing apples with apples: "What are the wage rates and fringe benefits to Mattel factories in the United States and Mattel toy factories overseas, especially in the Pacific Rim?"

The manager of that plant says "Please do not use the word plural plants because we only have"-we Mattel-"one plant left in the United States"-somewhere in California, as I remember it-"where we make our largest toys." Everything else is made overseas. To answer your question, the manager told us, "The wage rate and fringe benefits are essentially $9 an hour in this plant, the single plant left in California." While in Hong Kong it was $1.50; and in Taiwan, it was $1.50 an hour; in South Korea, it was $1.50 a half an hour. "But," he said, "in our brandnew most modern plant that uses robots in Shanghai Red China the hourly rate is 25 cents an hour."

Mr. President, I do not mean to imply that where toys are made is necessarily going to break the economy, or further reduce the standard of living in America. I am simply making the point in this one industry that is repeated over and over and over again. If those who oppose this textile bill know what they are saying, they are saying let us take all of the Mattel factory.

Let us take all of the manufacturers, and if it can be done cheaper overseas at slave labor rates, then that is good for America somehow.

Mr. President, I suggest that it is nonsense. It is shortsighted, at best, and is devised by those people who have never been operating in the free enterprise system themselves, or who have ever been involved in a business where important decisions have to be made.

Therefore, I preach once again against those who mumble mumbo jumbo, cheap, cheap, cheap garbage on the floor of the U.S. Senate. I am very tired of their chirp, chirp, chirping, because they know not of what they speak or what they are destining America to become.

The followup to this, Mr. President, I see that very recently the President of the United States said that we should have a world or a North and South America economic climate, something akin to the recent legislation that we passed where we made, basically, our friends to the north, Canada, and the United States a free trade zone.

Well, there were some things wrong with that legislation, but at least the standard of living in Canada is somewhat the same as the standard of

living in the United States of America. Envision, if you will, Mr. President, if we bit on the internationalism that the President of the United States has recently cited by including all of the Americas, all of Central America and all of South America, in that trade zone, how is it going to work? There is only one way that it can work, Mr. President, and that is that the standard of living of Americans would deteriorate to the standard of living in Mexico, in Central America, and in South America. Is that what we want? I think not. Therefore, I hope those cheap, cheap, cheap murmurs that I continue to hear on the floor of the U.S. Senate would be cast aside.

Mr. President, the inclusion of the Daschle amendment, which I cosponsored in the last Congress, is another strong reason to support this important legislation. It is vital and a crucial element of the textile bill. Properly implemented, the provision will fully protect American agriculture from retaliation and will off er the United States an opportunity to expand its agricultural export markets. It will give our trading partners a much needed incentive to purchase more American farm products, to secure their share of the global textile and apparel quotas.

Many in American agriculture have shown strong solidarity with the textile industry, because both are facing similar pressures in international trade negotiations, pressure not from competitors, but pressures from within their own Government. I need only cite, Mr. President, the story that appeared in the Washington Post this morning, where a fellow Nebraskan of mine, Mr. Clayton Yeutter, who is the Secretary of Agriculture, said that the bill recommended by the Agriculture Committee, if it passes, should be vetoed by the President of the United States. That is some leadership-some leadership-from the Secretary of Agriculture, who is supposed to be a spokesman for agriculture.

Mr. President, if we follow the cheap, cheap, cheap, chirp, chirp, chirping of the Secretary of Agriculture, we will also see a plunge beyond the point of no return for a vast majority of the American family size farmers and ranchers. That is not what we want in Nebraska, Mr. President.

I suggest that the Secretary of Agriculture has abandoned his roots, abandoned the place where he received his education, abandoned the farmers and ranchers, who he is supposed to support, for some kind of a concept of cheap, cheap, cheap and chirp, chirp, chirping for something that he obviously understands very little about. He talks to the vitality of America in the future, and the standard of living in America in the future. Both agriculture and textiles are in the same boat

in the current General Agreement on Tariffs and Trade, generally called the GATT negotiations.

The Bush administration, and the Secretary of Agriculture from Nebraska, and Carla Hills, the Trade Representative, are anxious to accomplish all of this in international trade negotiations. They want to accomplish it there despite what I think will be the wishes of the Congress of the United States. Enough is enough is enough.

I believe the statement by the Secretary of Agriculture in the morning papers, more than anything else, should alert the Congress of the United States to the mad dash in internationalism that is being promoted by this administration. I know it is not popular, it is not politically popular, to take on the President of the United States, because we must understand that he can do no wrong; he can do no wrong, because he is the President of the United States, and he is popular, and he has a nice smile, and he is kind of everybody's father or grandfather.

Well, I am glad he is not my father or my grandfather, because with regard to the policies of internationalism setting, if you will, Mr. President, the domestic farm programs and policies not in the United States but in GATT, in Geneva, Switzerland is wrong, it is wrong for America. The sooner that all of us come to understand that, when there were Republicans on the side of the aisle or Democrats on this side, the better chance we have of keeping America as it is now, without sliding down to a second- or third-rate economic power and a second- or third-rate standard of living which the policies of the Bush-Yeutter-Hills administration are taking us.

Mr. President, this textile bill would not be necessary if the previous Reagan administration had simply enforced the then existing trade agreements, of if the Bush administration had shown any interest in def ending American textile and apparels jobs in the current trade negotiation. The Reagan and the Bush administrations have been so enthralled with free trade and the free trade religion or doctrine, that they have lost faith in the American workers, the American farmers and American ranchers, certainly in American labor.

The administration has brought American jobs to the sacrificial altar of GATT. It is long past time that the administration and the American people understand that the unrestrained worship of free trade without equal reference for fair trade will only result in America's standard of living being brought to its knees, very literally.

Mr. President, the textile bill is a good bill but, of course, it is not a perfect bill. However, it is a perfect way

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17651 for the Congress to send a clear message to the Bush administration that there are industries absolutely critical to America's economy and America's standard of living, and that chirp, chirp, chirping, cheap, cheap, cheap is not the answer.

Later this week when the Congress considers the 1990 farm bill, we will have an opportunity to send an even stronger message regarding American agriculture. Together these bills will send the message that a strong economy cannot be built solely on fast foods and paper shuffling, and that a strong economy must be built on balance of services, agriculture, technology, and production.

Last, but not least, unless we have a healthy labor market in the United States, unless we have a healthy agricultural sector in the United States, we are doomed, we are absolutely doomed, Mr. President, as far as the future is concerned by continuing to be a world economic power.

Mr. President, given the economic disruption experienced in the textile and apparel sector, the new textile bill makes sense. The current bill is moderate and it protects not only the textile industry but agriculture.

This bill does not close the American market to imported textiles, apparel, and shoes. It simply holds growth to a manageable level.

Mr. President, although I would have preferred to have had the Reagan and Bush administrations fully enforce the then existing textile and apparel agreements over the last decade, I will enthusiastically support the 1990 textile bill as the only avenue left open to us, elsewhere we will see the total elimination of these vital industries in America.

Our Nation cannot afford to destroy such a fundamental industry in the name of free trade when in reality what we are faced with is slave labor imports. The U.S. standard of living is destined to plunge to the lowest common denominator unless we begin to act in a positive fashion, and I suggest, Mr. President, that the beginning should be in passing the textile bill.

Thank you, Mr. President, and I yield the floor.

The PRESIDING OFFICER. Who seeks recognition?

Mr. EXON. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The absence of a quorum has been suggested.

The clerk will call the roll. The assistant legislative clerk pro

ceeded to call the roll. Mr. EXON. Mr. President, I ask

unanimous consent that the order for the quorum call be rescinded.


ORDER OF PROCEDURE Mr. EXON. Mr. President, I under

stand there are about 3 or 4 minutes remaining in morning business; is that correct?

The PRESIDING OFFICER. The Senator is correct. There are approximately 5 minutes remaining in morning business.

Mr. EXON. Mr. President, I would like to be heard on another matter that I believe is coming up on the floor of the U.S. Senate today and that is a cloture vote on the civil rights legislation.

CIVIL RIGHTS ACT 01', 1990 Mr. EXON. Mr. President, I have

never before in my nearly 12 years of service in the U.S. Senate voted against a civil rights bill. I am not sure but what the civil rights bill of 1990 is not a misnomer. After having studied the bill and the provisions, after earlier having intended to support it, I find in all good conscience I cannot do so. I think it would be probably better, Mr. President, if we renamed this bill, and I think the proper name for it would be the Lawyers' Protection Act of 1990 because I am convinced, Mr. President, that if this bill in its present form should become law I think that you would see the greatest outbreak of litigation that we have ever seen in the United States.

If we can pare this bill back, if we can get away from calling it the Lawyers' Benevolent and Protection Act of 1990, then I might be in a position to support it. But when cloture comes up on this bill sometime today or sometime this week, this is one Senator who will not be voting for cloture in the hopes that we can make some significant changes in the Civil Rights Act as proposed and get it back to what at least I understood was the original meaning and intent of this piece of legislation.

Mr. President, I yield the floor and suggest the absence of a quorum.

The PRESIDING OFFICER. The absence of a quorum has been suggested. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. LOTT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.


ORDER OF PROCEDURE Mr. LOTT. Mr. President, I ask to

proceed under morning business for 5 minutes.

The PRESIDING OFFICER. The Chair advises the Senator there are only about 2 minutes remaining in the morning business hour. The managers of the bill who are supposed to occupy

the Senate beginning at 11 have not appeared on the floor.

Mr. LOTT. Therefore, I ask unanimous consent to proceed for 5 minutes as if in morning business.


TEXTILE, APPAREL, AND FOOTWEAR TRADE ACT OF 1990

Mr. LOTT. Mr. President, I rise this morning to speak in support of the textile bill that will be debated early on today and will have some amendments thereon.

I had not earlier spoken in general debate on this legislation, but I express myself and urge my colleagues later on today to vote against the two amendments that are pending which are strictly killer amendments, and I urge my colleagues to vote for final passage on this bill.

This is not an issue on which we have not tried to work with the administration, and even though the administration is opposing this bill I emphasize that as a Member of the Senate I have joined with other Senators and have tried to work with this administration and previous administrations to make them realize there is a tremendous need for assistance to the textile and apparel and shoe industry in this country.

We are slowly losing in this battle against a rising tide of textiles, apparel products, and shoes. I want to be able to wear American shoes. I want to be able to wear American clothes. But we are losing this battle.

It is like we are standing on a bank watching a swimmer struggle against the tide to stay afloat. And you may at first say, well, maybe they can swim out, and if they do not succeed you throw them some sort of a life raft, perhaps. But in this case, the swimmer is sinking, slowly sinking, and we have to provide some assistance to this very important industry that is being deluged by foreign imports.

You are going to hear a lot of conflicting statistics. There are those that will come in and say, "Well, the textile industry in America is doing fine. You do not have to worry about them. They are not succeeding in some instances because they are inefficient."

But there will be a lot of others that have statistics that I agree with that show that we are losing American jobs. Yes, we need to be efficient. Yes, we need to produce good quality products at a reasonable price. But I believe many of the industries in America are doing just that. For the past two decades, these industries have fought against this crushing tide of foreign imports. While we have listened to speeches about free trade, we must have free trade, but it appears to me that every time there are negotia-

17652 CONGRESSIONAL RECORD-SENATE July 17, 1990 tions and they have to put something on the table, they want to put up textiles for some other industry. And the textiles are being damaged.

We are dealing with an industry that employs 2.1 million Americans. That is one out of every 11 jobs in the manufacturing sector in this country. These jobs are filled by minorities and women that desperately need the incomes to sustain their families. Blacks and Hispanics make up more than 25 percent and women constitute 67 percent of the textile industry. These are two segments of our work force that cannot afford to lose their jobs.

In the last 2 years alone, we have witnessed a dive in the textile industry profits. For the first quarter of 1990, the textile industry suffered a loss of $47 million. This is not just corporate profits we are talking about here. This translates into an incredible loss of jobs, American jobs; 71,000 American jobs have been lost in the last 12 months alone. Already this year, three dozen plants in America closed. In Mississippi alone, my home State, a State of 2.6 million people, over 65,000 people are employed by the textile and fiber industries.

Now, I am not a protectionist by any means. In fact, in Whalen's book, "Trade Warriors," I am actually portrayed as being as close to a total freetrader as one can get without actually being one. I am optimistic about the ability of our industry to compete in the world market, but also realistic enough to see that right now, today, the industry must have some assistance. We must reach out and provide some assistance to this very important industry.

I urge my colleagues in the Senate to look very carefully at this legislation. It is very reasonable legislation. It would impose global quotas on textiles and apparels with 1 percent growth annually. We are not trying to block out foreign imports. We are trying to have a reasonable growth of 1 percent a year that is allowed under this bill.

Also, in the case of footwear, 80 percent of shoes in America now are imports. We only have 20 percent left. Do we want any shoe industry in this country at all? I do, and I think a lot of other people do.

So I urge my colleagues to give every consideration to this very important legislation and urge its adoption by a large margin so that we can override a veto if it is necessary.

Thank you, Mr. President.

GAO'S FINDING OF DISCRIMINATION BASED ON EMPLOYER SANCTIONS Mr. SIMPSON. Mr. President, I rise

to comment on recent information I have discovered which vividly invalidates the GAO's contention that em-

ployer sanctions have been "solely" responsible for a "widespread pattern of discrimination" against persons authorized to work in the United States.

On March 29, 1990, GAO reported that employer sanctions have been solely responsible for a widespread pattern of discrimination against persons who look or sound foreign but who are nonetheless authorized to work in the United States. Employer sanctions were the key provision of the Immigration Reform and Control Act of 1986 [IRCAJ which sought to reduce illegal immigration. They have been supported by a majority of both parties in both bodies, and have beenproposed and supported by Democratic and Republican Presidents alike.

Under IRCA, if GAO were to find that employer sanctions have been solely responsible for the discrimination that I have described, then Congress could terminate employer sanctions by passage of a joint resolution in 30-day, expedited procedures. Resolutions were introduced in both the House and Senate after GAO made this determination, but they did not move forward during the 30-day period simply because there was not suffi. cient support in Congress for the repeal of employer sanctions.

I strongly opposed the repeal legislation, and I was very critical of GAO's conclusion that employer sanctions had solely caused any new employment discrimination. I now have clear proof that the GAO's conclusion was tragically flawed: A memo from the head of GAO's methodology division which states that there is no way that GAO could link the discrimination it measured to employer sanctions. This memo was written just 17 days before GAO released a report on a topic on which it had been working for 3 years. It was directed at a draft of the report we read on March 29, 1990, but its criticisms were so profound and scathing that they apply equally to the final report.

GAO's Assistant Comptroller General for Methodology concluded that, because no baseline measurement was taken of employment discrimination before IRCA was enacted, GAO could not say with any certainty that the discrimination it measured after !RCA was in any way linked to employer sanctions. There were two main flaws detected in the report: First, no measure was able to be made that discrimination has increased since !RCA was passed; and second, there was no clear causal link between the discrimination GAO measured and the enactment of employer sanctions. Let me quote in detail from the "GAO memo" on each of these points:

Discrimination has not increased since !RCA.

I could find no real evidence presented in our report that supports an increase in discrimination since IRCA. The question of in-

crease is important because it is one of the indications of an IRCA effect. Without an increase, it's hard to say IRCA caused a change, since there's no empirical evidence for it. It's crucial in this case because discrimination has always been with us-it didn't suddenly arise with IRCA, so we need to know whether it has increased.

There are • • • two methods we used to look at data pre- and post-IRCA. The first is the State employment agencies in three States. • • • Here we found no difference in the rates at which Hispanics and other minorities got jobs before and after IRCA's passage. So, no evidence here of increased discrimination. The second method comes from the analysis of 168 EEOC cases, preand post-IRCA. Again, we found no increase in national origin charges of discrimination filed with EEOC after IRCA.

The discrimination GAO found cannot be reliably linked to !RCA.

In this case, we have nothing to compare against, no finding of increased discrimination, no ability to say whether the discrimination we found would have been as bad, worse, or better without IRCA, and no clear hypothesis-now that fear seems unlikelyto explain IRCA as a causal agent.

So I believe the truth is that we have no strong causal link between IRCA and discrimination and in my view, it is just as likely that the discrimination we found has always been there, or that it is spurious, as that IRCA caused it. And we are especially vulnerable without, first, a finding of increase in discrimination since IRCA or, second, a hypothesis to explain how IRCA could have caused such an increase if we found none.

Now, the Comptroller General also attached a letter to this memo, in which he tries to explain away this memo's analysis and reinforce the GAO's conclusion that employer sanctions have been solely responsible for a widespread pattern of discrimination. His basic contention is that the memo I cite here, from Eleanor Chelimsky in his office, responded to a draft of the final GAO report, and that the final report was approved by GAO's Methodology Division.

Unfortunately, the Comptroller General's contention is not supported by the evidence. There are four basic reasons why his cover letter is not persuasive: First, GAO conducted no new studies after the memo to measure pre- and post-!RCA discrimination; second, GAO produced no new evidence after the memo to more reliably link the discrimination it measured to !RCA; third, in response to the memo, GAO merely softened the vigor of its statements linking employer sanctions to the discrimination it measured, and in the process failed to follow its statutory mandate that it determine whether a "widespread pattern of discrimination" has arisen solely because of employer sanctions; and fourth, additional GAO internal documents-reviewed by my staff but not releasedindicate that, in response to the memo from the Methodology Division Chief, the writers of the final report admitted that causal links between discrimi-

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17653 natory actions and IRCA could not be made with certainty.

Finally, GAO retained five expert consultants on immigration issues to review its report. These five were Frank Bean, Barry Chiswick, Doris Meissner, David North, and Marta Tienda. I have read publications by all of these experts, and I do most certainly concur with the description of these people as "experts." When these experts were briefed on GAO's conclusion that employer sanctions had caused widespread discrimination, their reaction was unanimous: First, GAO appeared to have discovered a "widespread pattern of discrimination"; but second, GAO does not have the data to prove that IRCA was the cause of the discrimination it measured.

It is very much the time to face the facts, and the music. This internal GAO memo, and the views of the expert consultants, so completely undercut the validity of the final GAO report that Congress should proceed with the assumption that no U.S. Government organ has yet determined that employer sanctions have caused new employment discrimination. Therefore, any calls for repeal of employer sanctions based on claims of increased discrimination are simply not justified nor appropriate. I will vigorously oppose S. 2797, which repeals employer sanctions, for this and other reasons.

However, I do not believe in any way that Congress should "wash its hands" of the issue. I do believe that employer education is a very good thing, and I find significant evidence in GAO's final report to support its contention that employers are not fully familiar with the law's details, and that there are too many documents of questionable validity now available which may technically satisfy the employer sanctions requirement of worker verification but don't get the job done. Legislation I have previously introduced, S. 2446, would address these problems, and I will continue to press for the basic proposals that bill describes.

However, I do honestly feel that this internal GAO memo should put to rest a number of proposals; First, repeal of employer sanctions; second, moratoriums on enforcement of employer sanctions; third, expansion of existing antidiscrimination laws and agencies; and fourth, continued reporting by GAO on employer sanctions-with the sunset of employer sanctions being possible if discrimination is found that is linked to employer sanctions.

Mr. President, I ask that the March 12, 1990, GAO memo, and a June 26, 1990, letter from the Comptroller General, be printed in the RECORD at this point.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

MEMORANDUM

GENERAL ACCOUNTING OFFICE, Washington, DC, March 12, 1990.

To: Comptroller General. From: Assistant Comptroller General for

Program Evaluation and MethodologyEleanor Chelimsky.

Subject: Requested Methodological Review of a GAO Draft Report.

This memo responds to your request last Friday afternoon, March 9th, that I review GAO's report, Immigration Reform: Employer Sanctions Appear to Reduce Illegal Immigration But Increase Discrimination. Because of the very short time available to me, I have confined myself to the issues raised by Michael Teitelbaum in his letter to you: that is, the methodological basis for the report's conclusions summarized in the above title and elsewhere (p. 63) as our determination that "the implementation of the IRCA sanctions provision has resulted in a widespread pattern of national origin discrimination against eligible workers." My review therefore covers the points involved in answering the policy question: Has a widespread pattern of discrimination been caused by the IRCA sanctions provision?

To respond to this question, there are five subquestions that must first be answered:

1. What is meant by "discrimination"? 2. What is meant by "widespread"? 3. Does widespread discrimination exist

now? 4. Has discrimination increased since

IRCA's implementation? 5. If there is widespread discrimination,

was it caused, at least in part, by the IRCA provision?

SUBQUESTION 1: WHAT IS MEANT BY ''DISCRIMINATION''?

a. Definition of "Discrimination" Given by Our Report.-In brief, we include in our definition:

Discrimination in hiring, or recruitment, or referral for a fee.

Discrimination in discharging employees or job applicants.

Discrimination on the basis of national origin and citizenship or alien status.

All other kinds of discrimination <e.g., wages, promotions, housing) are excluded.

b. Comments.-None. SUBQUESTION 2: WHAT IS MEANT BY

''WIDESPREAD''?

a. Definition of "Widespread" Given by Our Report.-We will decide what widespread means <i.e., its operational definition) based on our own judgment. This is because there is no guidance or operational definition of "widespread" in the statutory language. The analysis in Appendix IV says: "The only references we have found to it in the legislative history are Senator Kennedy's observations that it requires 'a serious pattern of discrimination' and more than 'just a few isolated cases of discrimination .. .' While there is no indication that such discrimination must be pervasive, there is likewise no indication of how serious it must be or how much more than a few isolated cases."

The basis for our judgment will be an unstated number of employers who discriminate, an unstated number of employees/applicants affected, an undefined distribution of discriminatory practices by industry type and geographic region.

b. Comments.-Not much choice here. While the lack of a specific criterion or set of criteria establishing what we will consider "widespread" can be attacked, so could

any criteria we might set, given the statutory language and legislative history.

SUBQUESTION 3: DOES WIDESPREAD DISCRIMINATION EXIST NOW?

a. Evidence Presented by Our Report.Six methods were used: four are said to show current widespread discrimination; two are said not to show such discrimination (page 63). The methods are:

A survey of 9,491 randomly selected employers, later adjusted to 6,317, of whom 4,362 responded <response rate: 69 percent>;

A "hiring audit" <302 audits in two cities); A survey of 300 job applicants in five

cities; An analysis of 400 discrimination charges

filed with the Department of Justice's Office of Special Counsel <OSC);

An analysis of job placement rates before and after IRCA maintained by state employment agencies in three states <I could not find the size of this population anywhere);

An analysis of 168 cases involving discrimination charges filed with EEOC before and after IRCA.

b. Comments.-Although our report states that all six methods dealt with the question of whether widespread discrimination exists; only three can really be said to do so <the others look at the fourth and fifth subquestions given above, addressing change and causation).

Employer survey The best evidence of widespread discrimi

nation clearly comes from the employer survey. The random selection of employers allows generalization nationwide (presuming that whichever "private marketing service" drew the sample did it right; we didn't verify their procedures, seep. 200), and the responses to survey question 23 do appear to show there is currently widespread discrimination according to our definitions. A proportion of 6.6 percent, widely distributed, is surely more than Senator Kennedy's "just a few isolated cases."

However, I did find some difficulties with the survey that weaken this finding. First, there are at least two types of methodological problems that we need to defend against:

Ulterior motive Employers have an incentive to report dis

crimination because in that way they can hope to get rid of the sanctions (see the legal appendix, pp. 209-210). Further, they have been the target of a campaign informing them of the above. Thus the 6.6 percent who responded "yes" could be composed, at least in part of people who did not discriminate but said they did, in order that GAO would find widespread discrimination and the Congress would then remove the sanctions.

Error Unknown amounts of error can be alleged

because of the complexity of our questions (people may have responded to only part of a question, etc.), the uncertainty of people's recall <shown by other research), or because of respondent ignorance.

This again weakens the certainty and credibility of our answers.

Second, our measure of discrimination is very fragile, reposing, as it does, on just one person being asked a question and giving an opinion without any back-up data or use of records.

Hiring Audit The hiring audits don't do much to estab

lish that widespread discrimination exists

17654 CONGRESSIONAL RECORD-SENATE July 17, 1990 because they were done in only two cities and the results cannot be generalized beyond those cities. However, the findings do appear to show discrimination in Chicago and San Diego, which helpfully reinforces the survey findings.

Survey of Job Applicants Here again the findings dotf t establish

widespread discrimination. There is a generalizability problem, and also non-random selection. The findings of verification discrimination in five cities seem to be real, but they pale notably when it is discovered (p.

· 83> that "eighty percent of the foreignsounding applicants were offered the job compared to 62 percent of those with no accents."

c. Summary of the Evidence for Subquestion 3: Does Widespread Discrimination Exist Now?-Our support for this comes mostly from the survey, with a little help from the hiring audit; the other methods are not helpful here.

We are open to challenge on the basis of (1) problems of ulterior motive and error in the survey against which we must defend <I believe the problem of ulterior motive is not discussed in the report); and (2) problems related to the fragility of our measure of discrimination.

Nevertheless, I think the bottom line is that our survey results, supported by the two hiring-audit case studies, do suggest a problem of widespread discrimination in the United States today. It seems to me we have enough evidence to make this case stick, although I believe we cannot properly-or with impunity-use the emphatic language of the report, given the methodological weaknesses outlined above.

SUBQUESTION 4: HAS DISCRIMINATION INCREASED SINCE IRCA?

a. Evidence Presented by Our Report.-! can find little positive evidence presented on this question. We all understand that without baseline data <and there is none) it is difficult to say-no matter what discrimination exists today-that there is more, less, or the same amount as before IRCA.

The report seems to rely on the employer survey here, but the survey questions about past actions are vulnerable: just discrimination after IRCA doesn't mean they weren't also doing it before IRCA-in the same, or some other form, and in greater or lesser amount. I think that too much of our claim for an increase in discrimination rests upon the wording of a few questionnaire items and the respondents' reaction to that wording.

The hiring audit doesn't help-it is irrelevant to the question of past versus present practices, as is the survey of job applicants.

The OSC analysis doesn't help: it deals with attribution to IRCA <subquestion 5), not changes in discrimination over time.

There are, however, two methods we used to look at data pre- and post-IRCA. The first is the state employment agencies in three states: Florida, Illinois, and Texas <California and New York were omitted because pre- and post-IRCA data were not comparable).

Here we found no difference in the rates at which Hispanics and other minorities got jobs before and after IRCA's passage. So, no evidence here of increased discrimination.

The second method comes from the analysis of 168 EEOC cases, pre- and post-IRCA. Again, we found no increase in national origin charges of discrimination filed with EEOC after IRCA.

b. Comments.-! could find no real evidence presented in our report that supports

an increase in discrimination since IRCA. The question of increase is important because it is one of the indications of an IRCA effect. <Without an increase, it's hard to say IRCA caused a change, since there's no empirical evidence for it.) It's crucial in this case because discrimination has always been with us <it didn't suddenly arise with IRCA), and so we need to know whether it has increased. Still another reason for knowing this is the hypothesis that it would increase because of employers' fears of IRCA sanctions.

Thus, we had no choice but to look at whether discrimination increased after IRCA, and we did so as best we could, in the state employment agency and EEOC analyses <our ony available pre-post data> and we found no increases. This message, however, is not clearly presented. First, the caption for these findings downgrades their value before the reader has even had a chance to learn what they are <Other Measures Not Sensitive to IRCA Discrimination). Second, there is no real discussion either of what an increase or lack of increase means in terms of our analysis, or even of our findings thetnselves. Three paragraphs in all (pp. 91-92) are really insufficient here to give the reader a good understanding <we are not even told what the N was!). But most confusing of all, the title of our report gives a completely contrary message, saying we have found an increase that appears to have been caused by IRCA.

c. Summary of the Evidence of Subquestion 4: Has Discrimination Increased Since IRCA?-There seems to be no real methodological support for such an increase, yet in our title we claim IRCA appears to increase discrimination.

Not only is there no support for an increase, however, the evidence actually goes the other way: we found no change based on the two pre- and post-IRCA data bases we examined. SUBQUESTION s: IF THERE IS WIDESPREAD DIS

CRIMINATION, WAS IT CAUSED, AT LEAST IN PART, BY THE IRCA SANCTIONS PROVISION? a. Evidence Presented by Our Report.-As

I noted above <subquestion 3), we did find evidence for widespread discrimination in our survey <responses to survey question 23). The best evidence allowing us to attribute that discrimination to IRCA is again the responses to survey question 23.

Other evidence is slight to nonexistent. There is no link between the hiring audit and the survey, or between the hiring audit's findings and IRCA, so that's no help.

The EEOC and state employment agency analyses showed no increase in discrimination, so IRCA cannot be said to have caused one, based on those data.

In the analysis of OSC cases, we found one-quarter that "appeared to be" related to IRCA sanctions. But these cases were only allegations of discrimination and more than half of them were closed with no discrimination found. So that again is not helpful.

The job applicant analysis shows some discrimination related to IRCA's verification procedures but none related to hiring <on the contrary).

Finally, we have rejected (p. 105) the hypothesis that fear of IRCA sanctions was related to the widespread discrimination we found.

b. Comments.-This subquestion is a tremendously difficult one. Answering causeand-effect questions persuasively has not always been accomplished even by the best researchers. In general, what is needed is the ability to make a strong pre-post com-

parison, to predict what would have happened in the absence of the policy or program (in this case IRCA), and to rule out other possible explanations for the findings.

In this case, we have nothing to compare against, no finding of increased discrimination, no ability to say whether the discrimination we found would have been as bad, worse, or better without IRCA, and no clear hypothesis <now that fear seems unlikely) to explain IRCA as a causal agent.

What we do have is some employer statements from our sample survey that indicate discrimination; for example, that IRCA caused 6.6 percent of them to begin a practice of not hiring job applicants whose foreign appearance or accent led the firm to suspect they might be unauthorized aliens and that IRCA caused 1.8 percent of them to begin a practice of not hiring persons who present Puerto Rican birth certificates.

As I noted earlier, some of these respondents could be mistaken, they could have ulterior motives, they could have misunderstood the question, etc. So I believe the truth is that we have no strong causal link between IRCA and discrimination and in my view, it is just as likely that the discrimination we found has always been there, or that it is spurious, as that IRCA caused it. And we are especially vulnerable without < 1) a finding of increase in discrimination since IRCA or <2> a hypothesis to explain how IRCA could have caused such an increase if we had found one.

c. Summary.-As noted above, I find only weak methodological support for a finding that IRCA caused the widespread discrimination we found, and I therefore believe we should not make such a finding or push hard on attribution-beyond talking about "some evidence" or something appropriately tentative. We cannot, I think, defend a stronger position methodologically, based on these data and this analysis.

Postscript: After meeting with the relevant division people, I have good hope that the report will be usefully revised.

COMPTROLLER GENERAL OF THE UNITED STATES,

Washington, DC, June 26, 1990. Hon. ALAN K. SIMPSON, U.S. Senate.

DEAR SENATOR SIMPSON: This letter responds to your request that we provide you a copy of the enclosed memorandum from the Assistant Comptroller General for Program Evaluation and Methodology to me discussing the methodology underlying a draft of our report on employer sanctions and the immigration law.

Candid internal discussion on the approaches we take in our work is critical to the process we use in GAO to assure ourselves that our analyses, conclusions, and recommendations are sound. Knowing that the IRCA report would be controversial and that our methodology would be closely examined, I had drafts of the report reviewed extensively by top people in GAO not directly associated with their preparation. Questions were raised and addressed. The objectives, scope, and methodology chapter of the final report explains in detail the recognized limitations of our approach and why we could not use a more ideal approach to carry out the statutory mandate given to us.

The final report takes into consideration all points made in the Assistant Comptroller General's memorandum. Comments link between IRCA and the discrimination found to exist were particularly valuable. These

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17655 comments led us to clarify and expand on the steps we took to strengthen our methodology and to modify statements that might have been misleading.

We made clear why we selected the methodological approaches we used and the steps we took to ensure that they captured the bahaviors to be tested. We discussed in detail the multiple measures employed and how they interrelated to contribute to our overall conclusions.

The clarifications described the techniques we used to enhance the credibility and certainty of survey responses by employers. We elaborated on how survey questions were carefully crafted to avoid any implication of "right" or "wrong" behavior. And we described more fully the involvement of an expert consultant in drafting the survey questionnaire and pretesting it more than 50 times to make sure that the desired information would be obtained.

Similarly, we expanded a discussion of potential biases to the survey results that could have affected response patterns but which, in our view, did not affect significantly the conclusions we reached. We explained the features of our analysis that tended to make our overall estimate of !RCA-related discrimination conservative.

Before issuing the report, a final revised draft was reviewed again by the top people in GAO, including Ms. Chelimsky, author of the memorandum you requested. Everyone agreed that the clarifications fully addressed the concerns initially raised and that our presentation was fair and our conclusions sound.

To reduce the likelihood of misunderstandings, we would appreciate your disclosing the contents of this letter together with any public reference you might make to the enclosed memorandum itself.

Sincerely yours, CHARLES A. BOWSHER,

Comptroller General of the United States.

A TRIBUTE TO SENATOR QUENTIN BURDICK ON HIS 30 YEARS SERVING THE SENATE Mr. DASCHLE. Mr. President, I rise

today to join my colleagues in paying tribute to Senator QUENTIN BURDICK. As we are all aware, this year marks the 30th anniversary of Senator BuRDICK's election to the Senate, and it marks 30 years of unparalleled service to the people of the Dakotas and the Nation.

When I was just beginning to get interested in public service and involved politics in South Dakota, no figure loomed larger than QUENTIN BURDICK, and his stature has only grown over the years. No one has ever represented the Dakotas with more dedication and caring than QUENTIN BURDICK, and his accomplishments over the past 30 years will long outlive us all.

Under the guiding hand of QUENTIN BURDICK, programs as diverse as the Federal high way program, disaster relief, ground water protection, rural development and clean air have flourished. As chairman of the Senate Environment and Public Works Committee, Senator BURDICK has affected almost every significant environmen-

tal statute in the past two decades. In his role of chairman of the Agriculture Appropriations Subcommittee, almost every program to benefit the farmers of the Nation and rural America in general owes something to QUENTIN BURDICK.

Washington affects men and women differently. People can forget their roots and why they got into public service in the first place. This could never be said of QUENTIN BURDICK, who has always symbolized common sense and represented the values of the common man. Senator BURDICK has always been a hero to me and to anybody who calls the Dakotas home.

As Senator BURDICK enters into his next 30 years of service, I join all South Dakotans and all Americans in wishing him and his lovely wife, Jocelyn, all the best in these special days.

PLAN INTERNATIONAL USE: A NEW NAME FOR AN OLD RHODE ISLAND FRIEND Mr. PELL. Mr. President, last month

the international development organization known as Foster Parents Plan changed its name to PLAN Internnational USA. After much consideration by PLAN officials, the name was changed in order to facilitate PLAN's operations in the United States and abroad.

Based in Warwick, RI, PLAN is a vital link of an international humanitarian network that organizes sponsorships of indigent children and their families in developing countries. Since its foundation in 1937, PLAN has helped countless children and families break the shackles of poverty. PLAN currently operates in developing nations on nearly every continent across the globe.

In a recent letter to me, PLAN's President Kenneth H. Phillips indicated that the name change will eliminate the confusion engendered by the former name Foster Parents Plan. It appears that many in the United States had confused PLAN's programs with in-home placement programs or adoption agencies. In addition, Foster Parents did not translate easily into many languages, which hampered PLAN's operations overseas.

Mr. President, I am proud to serve on PLAN International USA's honorary board. Because of my close association with PLAN over the years, I am able to speak with confidence of their many accomplishments in the field of international development. I am equally certain that the new name, PLAN International USA, will soon become synonymous with their fine work. I congratulate PLAN International USA, and I ask unanimous consent that the letter I received announcing the name change from President Kenneth H. Phillips be printed in the RECORD at this point.

There being no objection, the letter was ordered to be printed in the RECORD, as follows:

FOSTER PARENTS PLAN, Warwick, RI, June 13, 1990.

Hon. CLAIBORNE PELL, Russell Senate Office Building, Washington,

DC. DEAR SENATOR PELL: I want to personally

thank you for the interest you have taken in Foster Parents Plan, most recently in our Development Education initiative. Your assistance in this matter, subsequent to my letter of February 12, has been a great help to us. I believe it was your efforts that in fact led to the release of the Request for Proposals by AID for the 1990 cycle.

I am pleased to announce that we have just learned that the PVC office of the Agency for International Development has recommended our new Development Education project, Our Piece of Land is Small, for funding of $79,970 over two years.

This grant by AID is very important to us in that it will lend continuity to and increase our capacity to inform the American public about development in the Third World.

You may be interested to know that our Rhode Island experiment of See Me, Share My World, which was funded by a BidenPell Grant, has been so successful that we are now implementing plans to carry the program to schools throughout the nation. We hope that this approach will not only teach American children more effectively about the developing world but, will also lead to more informed decisions and support for private and public foreign assistance.

On another subject, I want you to be one of the first to know that we are changing our corporate name from Foster Parents Plan, Inc. to PLAN International USA in order to bring the US National Organization, the other donor countries, International Headquarters, and the field offices in 26 developing countries into a single corporate identity. This change is specifically responsive to the problems we have had in the US and in other countries with confusion over the "Foster Parents" part of the name which people associate with the in-home, temporary adoption service generally run by state agencies. The PLAN International USA corporate name will more thoroughly communicate our global effort. In addition, we are utilizing a service mark for our wellknown sponsorship program which will henceforth be referred to as the Childreach Sponsorship Program. I believe these changes will enable us to increase even further the number of children and families we are helping.

Once again, thank you for your interest in our work and your willingness to express your support of PLAN International USA to the Agency for International Development.

With best wishes. Sincerely yours,

KENNETH H. PHILLIPS, President.

TERRY ANDERSON Mr. MOYNIHAN. Mr. President, I

rise to inform my colleagues that today marks the 1,949th day that Terry Anderson has been held in captivity in Beirut.

17656 CONGRESSIONAL RECORD-SENATE July 17, 1990 CONCLUSION OF MORNING

BUSINESS The PRESIDING OFFICER <Mr.

LIEBERMAN). Morning business is closed.

CIVIL RIGHTS ACT OF 1990 The PRESIDING OFFICER. The

clerk will now report the pending business.

The legislative clerk read as follows: A bill <S. 2104> to amend the Civil Rights

Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes.

The Senate resumed consideration of the bill.

Pending: Kennedy-Jeffords amendment No. 2110, in

the nature of a substitute. The PRESIDING OFFICER. Under

the previous order, the time between now and 12 noon shall be equally divided and controlled between the Senator from Massachusetts [Mr. KENNEDY] and the Senator from Utah [Mr. HATCH] for debate only on S. 2104, the civil rights bills.

The Chair recognizes the Senator from Massachusetts.

Mr. KENNEDY. Mr. President, I yield myself such time as I may consume.

Mr. President, we stand today at a historic juncture.

For more than 35 years, the U.S. Supreme Court led the way as America struggled to free itself from the legacy of discrimination that has stained the fabric of this land.

But in 1989, the Supreme Court handed down a series of decisions that significantly undermined the struggle to end prejudice in the workplace. They were ominous steps backward, away from the goal of equal opportunity and justice for all Americans.

Now, Congress must restore and strengthen the laws that shield minorities and women from bigotry on the job.

Today, the Senate must decide whether it is to move forward with this important legislation.

What is at stake? The bill would overrule the Patter

son decision, where, in a single stroke, the Supreme Court nullified the only Federal antidiscrimination law applicable to the 11 million workers in the 3. 7 million firms with fewer than 15 employees.

The Patterson decision, with its devastating impact on minority workers in our country, must be overturned. The Civil Rights Act of 1990 overturns it.

It allows victims of race discrimination in the workplace to sue for onthe-job harassment as well as for discrimination in hiring, promotion, and firing.

The bill would overrule the Wards Cove decision, in which the Supreme

Court cast aside the unanimous decision by Chief Justice Burger in 1971 in the landmark case of Griggs versus Duke Power. In hundreds of antidiscrimination cases in the past two decades, the Griggs rule was used to strike down the subtle and not-sosubtle practices that kept minorities and women from participating fully and fairly in our economy.

The Supreme Court decision in Wards Cove effectively destroyed the Griggs rule.

The Court in Wards Cove made it far more difficult and expensive for victims of discrimination to challenge the barriers they face. The Civil Rights Act of 1990 restores the standards of Griggs versus Duke Power, which have served our country well for nearly two decades.

The bill would respond to the decision in Martin versus Wilks, where the Court held that consent decrees settling job discrimination cases may be reopened in future lawsuits, even by people who sat on their hands while the Court considered the decree. In the months since that decision, new suits challenging long-settled consent decrees have been filed in more than a dozen cities. These new suits have devastating impact on employers and communities who thought they had long ago turned their backs on a discriminatory past.

The Civil Rights Act of 1990 provides a mechanism that allows finality in cases of job discrimination. It sets up procedures to ensure that interested persons can challenge proposed decrees before they are adopted.

But it also limits endless litigation and ensures that fairly settled cases stay settled. These procedures recognize the right of every individual to due process of law, and the need of businesses and communities to achieve both fairness and finality in job discrimination litigation.

The bill also fills a serious gap in Federal law caused by the lack of effective remedies for women and religious minorities in job discrimination cases. Under title VII, there is no adequate remedy for victims of sexual harassment or other forms of sex discrimination.

Employers who engage in such reprehensible bias can walk out of court scot-free-and even send a bill for court costs to their victims. Those who suffer from religious discrimination are under a similar disadvantage. The remedies available under current law are often completely inadequate to vindicate their rights.

The act provides meaningful remedies, granting victims of intentional sex and religious discrimination the right to recover compensatory damages, and, in particularly, flagrant cases, punitive damages as well.

This is the same remedy already available to victims of international

race discrimination under section 1981 of the Civil Rights Act of 1866. Women and religious minorities are not second-class citizens, they do not deserve second-class remedies under the civil rights laws.

The bill also corrects numerous other problems caused by the Supreme Court's recent interpretations of Federal statutes. These problems concern a variety of issues, including seniority systems, attorneys fees, and statutes of limitation.

These are serious problems, affecting millions of women and minorities across the Nation.

This Congress owes a duty to these citizens to address these problems quickly and effectively.

Much has been said and written about the discussions we have had with the Bush administration regarding this legislation. Ever since the Supreme Court announced these decisions last summer, Senator JEFFORDS and I have sought to work with the administration to fashion a strong bill acceptable to all.

For months, the negotiations moved slowly, gaining speed only when the bill gathered 48 cosponsors and civil rights leaders personally interceded with President Bush. Unfortunately, however, while those talks made some progress, they have not yet yielded an agreement.

We know that the long-standing opponents of civil rights are against this legislation. But I believe the bill before us meets every serious concern raised during the negotiations.

Because of the lateness of the time and the press of Senate business, we must move forward.

But the supporters of this legislation are prepared to continue to address each and every legitimate concern raised by Senators who in good faith wish to support this legislation.

Let us take the so-called quotas issue raised in connection with our response to the Wards Cove decision.

Everyone knows that the Griggs rule did not force employers to adopt quotas. Senators have asked, "Why do we not just take a sentence from Griggs and make it clear that we are restoring the Griggs decision?"

We believe that the bill before us does fairly and accurately reflect the holding of the Court in the Griggs case. But to go the extra mile, at an appropriate time, I will off er an amendment to the definition of business necessity to use the exact words of Griggs, so that in all cases involving employee selection-for hiring, promotion, training, and the like-the practice in question must be "significantly related to successful job performance." That language is taken precisely from page 426 of the Griggs decision.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17657 Other practices-that do not involve

employee selection-must bear a significant relationship to a significant business objective. That language is taken right out of the administration's recent off er.

The provision will also make it clear that in deciding whether business necessity is the issue, courts may not rely on unsubstantiated opinion and heresay; demonstrable evidence is required. That concept- requiring demonstrable evidence-is also taken right out of the Griggs decision. At page 431, the Court rules that a "demonstrable relationship to successful [job] performance" is required. And the provision will also state that the statutory language is meant to codify the meaning of business necessity as used in Griggs and to overrule Wards Cove.

That is Griggs. If Senators wish to restore the Griggs rule, they should vote for cloture.

Other Senators have asked that language be added to the bill making it clear that employers are not required to adopt hiring or promotion quotas in order to escape liability under the bill.

A number of Senators have spoken and have indicated that they were going to offer amendments on that subject. I want to state my intention is to include language on this issue in the bill, similar to the language that Senator DECONCINI had talked with us about.

The White House has asked whether damages would be available under the newly passed Americans With Disabilities Act, in cases similar to disparate impact cases under title VII. I am prepared to offer an amendment that will make it clear that damages are not available in such cases and that, in accord with the pending bill, damages may be awarded only in cases involving intentional discrimination.

Similarly, Senators have asked whether compensatory and punitive damages would intimidate employers into adopting quotas. The bill already makes it clear that damages are available only in intentional discrimination cases, not in disparate impact cases.

But I am prepared to work out clarifying language on this issue that may be offered by Senator DECONCINI as well.

Language clearly restoring Griggs; language specifically prohibiting quotas; language clarifying damagesthese changes remove the list thin reeds in the quotas argument that has been used by opponents of civil rights in their attempts to undermine this bill. The argument is dead.

Any Senator who offers the quotas issue as a basis for voting against cloture simply does not want to end job discrimination and guarantee equal opportunity for all Americans.

We are also prepared to respond to concerns raised by Senators regarding the Wilks provision in the bill.

Questions have been raised about whether the bill would deny persons their constitutional right to due process of law.

We intend to include in the legislation language making it clear that nothing in the bill would preclude an individual from challenging a decree if that person's right to due process would be violated by preclusion.

I ask unanimous consent that a copy of the pending Kennedy-Jeffords substitute, with the changes we propose, be printed in the RECORD at the conclusion of my remarks.


(See exhibit U Mr. KENNEDY. Finally, I want to

turn to the damages issue. The damages provision in the bill rests on a very simple concept-parity. Women and religious minorities are not second-class citizens; they are entitled to the same remedy for intentional discrimination now enjoyed by racial minorities-compensatory and punitive damages.

To those who say that allowing them this equal right would create a "lawyer's bonanza," I say hogwash.

Fifteen years of experience under section 1981 demonstrated that such charges are without merit. As Judge Clarence Thomas, who chaired the EEOC during the Reagan years, who supports including compensatory and punitive damages under title VII.

The supporters of this bill have gone the extra mile to meet the concerns raised by Senators.

And I want to make it clear that I will enter into reasonable time agreements to permit Senators with amendments to obtain votes regarding those amendments. But the time has come to move forward.

Mr. President, no Senator likes to cast a controversial vote. But we were sent here to lead; and each of us took a solemn oath to uphold the Constitution's guarantee of equal protection of the laws.

The time has come to live up to that oath. I urge my colleagues to vote for cloture this afternoon.

I yield such time as my principal cosponsor, Senator JEFFORDS of Vermont, would desire.

EXHIBIT 1 PROPOSED CHANGES TO KENNEDY-JEFFORDS

SUBSTITUTE SECTION 1. SHORT TITLE.

This Act may be cited as the "Civil Rights Act of 1990". SEC. 2. FINDINGS AND PURPOSES.

Ca) FINDINGs.-Congress finds that-( 1) in a series of recent decisions address·

ing employment discrimination claims under Federal law, the Supreme Court cut back dramatically on the scope and effectiveness of civil rights protections; and

(2) existing protections and remedies under Federal law are not adequate to deter unlawful discrimination or to compensate victims of such discrimination.

(b) PuRPOSEs.-It is the purpose of this Act to-

(1 ) respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions; and

(2) strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination. SEC. 3. DEFINITIONS.

Section 701 of the Civil Rights Act of 1964 C42 U.S.C. 2000e) is amended by adding at the end thereof the following new subsections:

"(l) The term 'complaining party' means the Commission, the Attorney General, or a person who may bring an action or proceeding under this title.

"Cm) The term 'demonstrates' means meets the burdens of production and persuasion.

"(n) The term 'group of employment practices' means a combination of employment practices that produces one or more decisions with respect to employment, employment referral, or admission to a labor organization, apprenticeship or other training or retraining program.

"(o)<l) The term 'required by business necessity' means-

"(A) in the case of employment practices involving selection <such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), the practice or group or practices must bear a significant relationship to successful performance of the job; or

"(B) in the case of employment practices that do not involve selection, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

"(2) In deciding whether the standards in paragraph < 1) for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The defendant may offer as evidence statistical reports. validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence, and the court shall give such weight, if any, to such evidence as is appropriate.

"(3) This subsection is meant to codify the meaning of 'business necessity' as use in Grigg v. Duke Power Co. (401 U.S. 424 <1971)) and to overrule Ward's Cove Packing Co .• Inc. v. Atonio <109 S. Ct. 2115 <1989)).

"(p) The term 'respondent' means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining programs. including on-the-job training programs, or those Federal entities subject to the provisions of section 717 <or the heads thereof>.". SEC. 4. RESTORING THE BURDEN OF PROOF IN DIS·

PARATE IMPACT CASES. Section 703 of the Civil Rights Act of 1964

<42 U.S.C. 2000e-2) is amended by adding at the end thereof the following new subsection:

"(k) PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT CASES.-

"(1 ) An unlawful employment practice based on disparate impact is established under this section when-

"(A) a complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color.

17658 CONGRESSIONAL RECORD-SENATE July 17, 1990 religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity; or

"CB) a complaining party demonstrates that a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such group of employment practices are required by business necessity, except that-

"(i) except as provided in clause <iiD, if a complaining party demonstrates that a group of employment practices results in a disparage impact, such party shall not be required to demonstrate which specific practice or practices within the group results in such disparate impact;

"(ii) if the respondent demonstrates that a specific employment practice within such group of employment practices does not contribute to the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity; and

"(iii) if the court finds that the complaining party can identify, from records or other information of the respondent reasonably available <through discovery or otherwise), which specific practices or practices contributed to the disparate impact-

"( I) the complaining party shall be required to demonstrate which specific practice or practice contributed to the disparate impact; and

"<ID the respondent shall be required to demonstrate business necessity only as to the specific practice or practices demonstrated by the complaining party to have contributed to the disparate impact.

"(2) A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this subsection.

"(3) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses an illegal drug as defined in Schedules I and II of section 102( 6) of the Controlled Substances Act <21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of the race, color, religion, sex, or national origin.". SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER·

MISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.

(a) IN GENERAL.-Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) <as amended by section 4) is further amended by adding at the end thereof the following new subsection:

"( 1) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor for any employment practice, even though other factors also contributed to such practice.".

(b) ENFORCEMENT PROVISIONS.-Section 706Cg) of such Act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes

that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 7030), damages may be awarded only for injury that is attributable to the unlawful employment practice". SEC. 6. FACILITATING PROMPT AND ORDERLY RES

OLUTION OF CHALLENGES TO EMPLOYMENT PRACTICES IMPLEMENTING LITIGATED OR CONSENT JUDGMENTS OR ORDERS.

Section 703 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-2) <as amended by sections 4 and 5) is further amended by adding at the end thereof the following new subsection:

"(m) FINALITY OF LITIGATED OR CONSENT JUDGMENTS OR 0RDERS.-

"(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-

"(A) by a person who, prior to the entry of such judgment or order, had-

"( 1) actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and

"(ii) a reasonable opportunity to present objections to such judgment or order;

"(B) by a person with respect to whom the requirements of subparagraph <A> are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order consistent with the constitutional requirements of due process of law; or

"(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons consistent with the constitutional requirements of due process of law. A determination under subparagraph <C> shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.

"(2) Nothing in this subsection shall be construed to-

"(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which they intervened;

"(B) apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal government; or

"(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction.

"(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the

scope of a litigated or consent judgment or order of the type referred to in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.". SEC. 7. STATUTE OF LIMITATIONS; APPLICATION TO

CHALLENGES TO SENIORITY SYSTEMS.

(a) STATUTE OF LIMITATIONS.-Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended-

(1) by striking out "one hundred and eighty days" and inserting in lieu thereof "2 years";

(2) by inserting after "occurred" the first time it appears "or has been applied to affect adversely the person aggrieved, whichever is later,";

(3) by striking out ", except that in" and inserting in lieu thereof ". In"; and

(4) by striking out "such charge shall be filed" and all that follows through "whichever is earlier, and".

(b) APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS.-Section 703(h) of such Act (42 U.S.C. 2000e-2) is amended by inserting after the first sentence the following new sentence: "Where a seniority system or seniority practice is part of a collective bargaining agreement and such system or practice was included in such agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application of such system or practice during the period that such collective bargaining agreement is in effect shall be an unlawful employment practice.". SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN

TENTIONAL DISCRIMINATON. Section 706(g) of the Civil Rights Act of

1964 <42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "With respect to an unlawful employment practice (other than an unlawful employment practice established in accordance with section 703(k), or in the case of an unlawful employment practice under the Americans with Disabilities Act of 1990, other than an unlawful employment practice established in accordance with paragraph (3)(A) or paragraph (6) of section 102 of that Act, as it related to standards and criteria that tend to screen out individuals with disabilities)-

"(A) compensatory damages may be awarded; and

"(B) if the respondent <other than a government, government agency, or a political subdivision) engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent; in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. Compensatory and punitive damages and jury trials shall be available only for claims of intentional discrimination. If compensatory or punitive damages are sought with respect to a claim of intentional discrimination arising under this title, any party may demand a trial by jury.". SEC. 9. CLARIFYING ATTORNEY'S FEES PROVISION.

Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) is amended-

(1) by inserting " (1)" after " (k)";

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17659 (2) by inserting "(including expert fees

and other litigation expenses> and" after "attorney's fee,";

(3) by striking out "as part of the"; and (4) by adding at the end thereof the fol

lowing new paragraphs: "(2) No consent order or judgment settling

a claim under this title shall be entered, and no stipulation of dismissal of a claim under this title shall be effective, unless the parties or their counsel attest to the court that a waiver of all or substantially all attorney's fees was not compelled as a condition of the settlement.

"(3) In any action or proceeding in which any judgment or order granting relief under this title is challenged, the court, in its discretion, may allow the prevailing party in the original action <other than the Commission or the United States> to recovery from the party against whom relief was granted in the original action a reasonable attorney's fee (including expert fees and other litigation expenses) and costs reasonably incurred in defending (as a party, intervenor or otherwise> such judgment or order.". SEC. 10. PROVIDING FOR INTEREST, AND EXTEND

ING THE STATUTE OF LIMITATIONS, IN ACTIONS AGAINST THE F'EDERAL GOVERNMENT.

Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended-

(1) in subsection (c), by striking out "thirty days" and inserting in lieu thereof "ninety days"; and

(2) in subsection (d), by inserting before the period ", and the same interest to compensate for delay in payment shall be available as in cases involving non-public parties, except that prejudgment interest may not be awarded on compensatory damages.". SEC. 11. CONSTRUCTION.

Title XI of the Civil Rights Act of 1964 <42 U.S.C. 2000h et seq.) is amended by adding at the end thereof the following new section: "SEC. 1107. RULES OF CONSTRUCTION FOR CIVIL

RIGHTS LAWS. "(a) EFFECTUATION OF PuRPOSE.-All Feder

al laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies.

"(b) NONLIMITATION.-Except as expressly provided, no Federal law protecting the civil rights of persons shall be construed to repeal or amend by implication any other Federal law protecting such civil rights.

"<c> lNTERPRETATION.-In interpreting Federal civil rights laws, including laws protecting against discrimination on the basis of race, color, national origin, sex, religion, age, and disability, courts and administrative agencies shall not rely on the amendments made by the Civil Rights Act of 1990 as a basis for limiting the theories of liability, rights, and remedies available under civil rights laws not expressly amended by such Act.". SEC. 12. RESTORING PROHIBITION AGAINST ALL

RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT OF CONTRACTS.

Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981> is amended-

(1) by inserting "(a)" before "All persons within"; and

(2) by adding at the end thereof the following new subsections:

"(b) For purposes of this section, the right to 'make and enforce contracts' shall in-

39-059 0-91- 33 (Pt. 12)

elude the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

"(c) The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of State law." . SEC. 13. LAWFUL COURT-ORDERED REMEDIES, AF

FIRMATIVE ACTION AND CONCILIATION AGREEMENTS NOT AF'FECTED.

Nothing in the amendments made by this Act shall be construed to require an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law. SEC. 14. SEVERABILITY.

If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstances is held to be invalid, the remainder of this Act and the amendment made by this Act, and the application of such provision to other persons and circumstances, shall not be affected thereby. SEC. 15. APPLICATION OF AMENDMENTS AND TRAN

SITION RULES. (a) APPLICATION OF AMENDMENTS.-The

amendments made by-< 1 > section 4 shall apply to all proceedings

pending on or commenced after June 5, 1989;

(2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989;

< 3 > section 6 shall apply to all proceedings pending on or commenced after June 12, 1989;

(4) sections 7(a)(l), 7<a><3> and 7(a)(4), 7(b), 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enacement of this Act;

<5> section 7(a)(2) shall apply to all proceedings pending on or commenced after June 12, 1989; and

(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989.

(b) TRANSITION RULES.-( 1 > IN GENERAL.-Any orders entered by a

court between the effective dates described in subsection <a> and the date of enactment of this Act that are inconsistent with the amendments made by section 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

(2) SECTION 6.-Any orders entered between June 12, 1989 and the date of enactment of this Act, that permit a challenge to an employment practice that implements a litigated or consent judgment or order and that is inconsistent with the amendment made by section 6, shall be vacated if, not later than 6 months after the date of enactment of this Act, a request for such relief is made. For the 1-year period beginning on the date of enactment of this Act, an individual whose challenge to an employment practice that implements a litigated or consent judgment or order is denied under the amendment made by section 6, or whose order or relief obtained under such challenge is vacated under such section, shall have the same right of intervention in the case in which the challenged litigated or consent judgment or order was entered as that individual had on June 12, 1989.

(C) PERIOD OF LIMITATIONS.-The period of limitations for the filing of a claim or charge shall be tolled from the applicable effective date described in subsection <a> until the date of enactment of this Act, on a showing that the claim or charge was not filed because of a rule or decision altered by the amendments made by sections 4, 5, 7(a)(2), or 12. SEC. 16. CONGRESSIONAL COVERAGE.

Title VII of the Civil Rights Act of 1964 <42 U.S.C. 200e et seq.) is amended by adding at the end thereof the following new section: "SEC. 719. CONGRESSIONAL COVERAGE.

"Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.".

The PRESIDING OFFICER. The Senator from Vermont is recognized.

Mr. JEFFORDS. Mr. President, I want to make a few brief remarks to try to bring Senators up-to-date on where we stand on the civil rights issue.

I certainly want to commend Senator KENNEDY, as well as Members of our side of the aisle, who have spent many, many hours trying to reach a negotiated settlement on the very difficult issues that we are facing.

However, time is now short. Only a very few weeks remain in this legislative session. It has already been a year since these decisions were handed down by the Supreme Court. Hundreds of cases have been affected and hundreds more will be affected if we do not act.

Proponents and the administration have discussed changes in good faith. Some changes have been made as a result, and others may still be made, even in the next few hours. It is clear, now, though, where the differences are. The options are also becoming clear. The Senator from Massachusetts has outlined some of the options that he will be suggesting as a resolution of the difficult problems that remain.

The final choices, however, must be made now and not later and it will be up to the Senate, and they will have a look at the various options to make their decision to what the rule of law should be on the issues that remain.

Unfortunately, though, we have been unable to reach a decision with the administration on these matters and, therefore, there are two courses which we cannot take. We can talk and talk indefinitely or we can act and make those difficult choices which must be made. It is time to act, in my mind; time to provide basic civil rights protections to tens of millions of Americans covered by this legislation.

Cloture will not be unfair to the opponents of the legislation. While the amendment process has not yet begun, I know of no significant nongermane

17660 CONGRESSIONAL RECORD-SENATE July 17, 1990 amendments that would be foreclosed by cloture. Yes, opponents have been waiting to off er amendments but so, too, have proponents been waiting. Both sides waited in hopes of reaching a compromise with the administration that would not make it necessary to go through the sometimes cumbersome process of amendments. However, the time now has come to put those options out to this body and to allow them to make the choices which will mold the legislatien for the future.

There are difficult choices to make. Some of those have been outlined by the Senator from Massachusetts. Others will come forward as we move forward on this legislation.

On the Wards Cove issue, I think we are close. The difference resolves itself down pretty much to whether the selection process should be broadened and those, especially those who represent women, feel the proposals, different from those made by Senator KENNEDY and myself, would open up a huge loophole to have all sorts of problems created in the discrimination area.

Damages is still another critical issue, and there are many options to face there and yet there are understandings.

It is a general agreement at least on the punitive side they should pay half of the punitive damages, whether we go to jury or not jury, whether we have caps on compensatory damages, or not caps, how do we establish the rights of women, handicaps, et cetera, all these issues still need to be resolved but the options are becoming very clear. ·

All I can say is, in my view, the thing to do now is to vote in favor of cloture, to bring forth the various options that are out there and to have an opportunity to resolve the very difficuit decisions that have to be made. Nothing will be served by further delay. I yield the floor.

The PRESIDING OFFICER. Who seeks recognition? The Chair recognizes the Senator from Utah [Mr. HATCH].

Mr. HATCH. Mr. President, I have to say I am just a little bit astounded by the arguments made by the distinguished Senator from Massachusetts and by my colleague and friend from Vermont today. Here we are in the second morning-and that is it for this bill since it was laid down-the second morning after the original opening remarks. I said that I am prepared to go to amendments. That is what the Senate is supposed to do. We are supposed to debate. This is supposed to be the greatest debating society, the greatest deliberative body, in the world. And yet consistently the rule lately is: File a controversial bill that everybody has problems with, on both sides, and then file cloture on it. That

way we do not have to put up with the debate.

The American people are going to be shortchanged. I was very interested in the comment of my distinguished friend from Vermont. He says we can talk or amend. But how can we amend? He said nobody is going to be foreclosed postcloture from amending. Come on, there are only 30 hours available for debate after we invoke cloture and each Senator has just 1 hour to debate and only two speeches that he can make. And if you happen to have a world-shaking, earth-shaking amendment-and there are a number to this bill because it is a terrible billwe are going to have all of 2 or 3 minutes to explain the intricacies of this very difficult subject.

Even if you are allowed to bring the amendment up, there are ways postcloture to stop any amendment, except, of course, the amendment of the distinguished Senator from Massachusetts and my distinguished colleague from Vermont. As a matter of fact, the only people who have had a right to amend here are Democrats. The only people who have had a chance to amend are Democrats.

Oddly enough, after cloture I suppose, if it is invoked today-and I will be shocked if our body would invoke that on this type of a bill today without any chance of correcting it-but assuming they do, we are going to get the third bill, the last two of which were never seen in committee. Nobody ever had the slightest idea what was going to be in those two bills, and I do not have the slightest idea what is going to be in this bill. The distinguished Senator from Massachusetts is going to call it up postcloture.

I have to say, if that is the way to run the U.S. Senate, it is not the way I was born to believe it should be run. The minority is going to be foreclosed by cloture from ever amending what really is a heinous bill, what really is a bill that will not work, what really is a quota bill.

I do not care what the distinguished Senator from Massachusetts says about it, we now have the original bill out of committee. We have the right of the distinguished Senator from Massachusetts to file a substitute that was supposed to change the quota amendment and that included the Kennedy-Danforth amendment. Then we had another Kennedy-Danforth amendment; then another KennedyDanf orth amendment; then a letter from John Sununu; then another suggestion from John Sununu.

If it is not a quota bill, then why are we continuing to negotiate and work on these particular problems? And where is the chance to negotiate after cloture is invoked? We are just getting another version from the distinguished Senator from Massachusetts, Senator KENNEDY.

This is the third or fourth version of this bill. The last two or three versions did not have 1 day of hearing, 1 day of consideration, 1 day of a chance to amend. As a matter of fact, we laid the bill down, we made our opening statements, and then we went to the Ford amendment with regard to congressional coverage. That knocked out Grassley and Harkin that basically said if we are going to impose this on society, we ought to impose it on ourselves. If all members of society, including employers and employees, have a right to court action, then our employees here ought to have a right to court action, if they do not like what the Ethics Committee has done with respect to their discrimination complaint.

Let me say to my colleagues, that the Ford amendment was hardly a crucial amendment to this particular bill. I said that first morning, when we brought this up, that I was prepared to go to the amendments. I had five or six amendments, as I recall. I was not going to filibuster it. There was no need for cloture. I would go with those amendments. If we lost, fine; if we won, fine. Then we would go with the bill. There are others, of course, who have amendments who are being foreclosed as well.

Mr. President, the majority leader has decided, for reasons that appear completely unwarranted, to try to invoke cloture on S. 2104, the so-called Civil Rights Act of 1990. When one looks at how the majority has decided to handle this bill, when one looks at the tactics of the last week as we had one bill after another come forward and intervene and take the time of this bill, it becomes obvious that this decision is unfortunate, it is inappropriate, and it is unnecessary.

S. 2104 is a very, very complex piece of legislation which, when one strips away the rhetoric, stands for the proposition that title VII of the Civil Rights Act of 1964 has failed. That is what this bill basically says. The bill would completely overhaul that statute, overturn 20 years of case precedent, reverse 25 Supreme Court decisions and opinions, reverse several traditions of Anglo-American jurisprudence, such as the notion that every American should have the same right to his or her day in court. And it would create a litigation bonanza for attorneys, and all in the name of civil rights.

We have to wake up around here. We are taking away the rights of both majority and minority to really try and amend this bill, when there has been a good faith offer that we will not filibuster and there is no reason to consider this a filibuster.

·Mr. KENNEDY. Will the Senator yield on that point then?

Mr. HATCH. Yes.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17661 Mr. KENNEDY. Will you be pre

pared to give us a definite time for final passage?

Mr. HATCH. I would. You bet. I am prepared to give time agreements on my amendments. I have to check with everybody else.

Mr. KENNEDY. You are the ranking minority member.

Mr. HATCH. That is right. Mr. KENNEDY. Are you prepared

to, if I make a proposal now? Mr. HATCH. To vitiate the cloture

vote? Mr. KENNEDY. I will make a pro

posal regarding time prior to all time expiring. I hope the Senator from Utah will support that particular proposal.

Mr. HATCH. Of course, I want up and down votes on my amendments. I have five or six amendments. I limit myself to those and limit them to time agreements. We will check our side to see if anybody wants to have their amendments governed by time agreements as well. We will try and do that. You bet your life. I would love to do it.

In fact, will you check our side, I say to the Republican leader, and let us see if everybody is agreed to go on time agreements, allowing us to vitiate the cloture vote and get a time agreement on this bill? It will certainly give us time to come up with our amendments, and it will certainly give everybody a chance to vote on these on the floor. I think the only fair way to do it is provide up and down votes, and I am limiting myself to five or six amendments.

Mr. DOLE. Will the Senator yield? Mr. HATCH. I will be happy to. Mr. DOLE. I will be happy to check

that at noon. We have a policy luncheon at noon.

Mr. HATCH. That is an appropriate time to check it.

Mr. DOLE. It seems to me cloture is being abused here. We have not had any amendments, no debate, no amendments, and we file cloture. It seems to me we are thwarting the legislative process. I do not think cloture is intended to be used to stifle anybody who might have a different view, anybody who did not want to line up with those who introduced a piece of legislation.

I hope that cloture will not be invoked. If this is going to be the Senate, we are going to have debates.

Some of these amendments are very important. We should not be gagged by the majority because we do not agree with some on the other side or on this side. So I hope our colleagues on both sides will take a look at the bill.

We are prepared to offer amendments, and we have been from the start. The Senator from Utah has been on the floor. He and the other Senator from Kansas are ready with their substitute. Let us have some

votes. Let us find out where the votes are.

I hope we do not invoke cloture. This is a very important piece of legislation. Everybody says it is. So how much debate have we had on it? None. None.

Now we are being in effect driven to cloture vote to save time. The important thing is to have a good civil rights bill.

I hope those on the other side will understand that we have been negotiating in good faith. We just left a meeting at the White House where that was reinforced by the President.

But on the other hand for those of us who are in the Senate, it has always been my feeling that if cloture is invoked somebody was delaying action. If there has been any delay on this side, I would have to get somebody to tell me about it because I do not know.

Mr. HATCH. Mr. President, the distinguished Senator from Massachusetts just made it clear that he has filed another substitute for this bill, another bill which has not had one day of hearing. We are on so many substitutes and amendments, all by that side, without any chance or opportunity of correcting what I consider to be, and I think many on both sides of the aisle consider to be serious problems with this legislation.

Whether one is for or against this bill, we all must agree it is a sweeping piece of legislation. The trouble begins however if one chooses to look beyond the label and in the actual language of the bill.

Even a cursory review reveals that S. 2104 is simply and unalterably a quota bill, no matter how much the distinguished Senator from Massachusetts say it is not. He has said that from the beginning as he continues to go through amendment after amendment after amendment and change after change after change trying to resolve that problem. He still has not done it.

The legislation still eliminates existing defenses to a challenge of discrimination, forcing employers to hire on the basis of race, sex, and ethnicity to avoid being sued. The legislation still denies some Americans the right to seek relief in court when they have been denied equal justice under the law. The legislation is still a lawyers' relief act, encouraging litigation, discouraging settlement, and reducing opportunities for conciliation.

In sum, this legislation is still completely flawed, and no proposal to date will cure its myriad defects. Action began last Tuesday. S. 2104 was brought up. But it was not the version of the bill that was reported by the Committee on Labor and Human Resources. The chairman of the committee had substituted a brandnew version of the bill, one which most of my colleagues had not seen until the day it was filed. In fact, I would say virtu-

ally all of them. The bill reported from the committee, and the accompanying committee report, were rendered null and void by that action.

After opening statements were completed Tuesday morning, I stated that I was ready to off er and begin debate on my first amendment. I indicated to the chairman of the committee that I had maybe five or six amendments that I felt deeply about, was ready to enter into time agreements on all of them, and that is precisely what I am willing to do today.

I subsequently submitted more amendments when the cloture motion was filed to protect myself procedurally but we all know that that is not much protection. I will still be looking for only a handful of votes.

The leadership indicated they would pref er that I wait until after Senator FORD offered his amendment concerning Senate coverage, since his amendment could also expedite resolution of the Americans with Disabilities Act. So, Mr. President, I waited. The Senate adjourned on Tuesday after completing action on the Ford amendment.

On Wednesday I was ready to offer my amendment. But I was told that the Senate would first complete action on the Omnibus Crime Act. Following that vote I was ready to offer my amendment, but was told that the Senate would instead turn to the Americans With Disabilities Act conference report. So I waited.

On Thursday, once again, S. 2104 was set aside, so that the debate could begin on the textile bill which consumed the whole day.

On Friday, we returned to the Americans With Disabilities Act conference report, and then we again took up the textile bill which consumed all of yesterday. No one was offered an opportunity to off er a substantive amendment at all on the so-called Civil Rights Act.

Perhaps the majority strategy is the best evidence we have of the merit of our arguments. I believe there is little interest on the other side in a debate on several of the more appalling provisions in this bill.

For example, few of my colleagues would consent to vote directly to bar Jim Henson from his day in court. Few would want to vote directly for the proposition that an employer is guilty until proven innocent-until he proves his own innocence.

In sum, Mr. President, the majority is engaged in an ingenuous strategy to bar anyone on this side of the aisle from offering an amendment to S. 2104. Naturally, one can argue that if cloture is invoked we will be free to offer our amendments, but all of us know that the majority can manipulate the cloture rules and procedurally block any amendment they dislike,

17662 CONGRESSIONAL RECORD-SENA TE July 17, 1990 germane or not. We all know that. The postcloture rules themselves give the minority little leeway.

The concept behind cloture is to cut off debate after a period of time when it is clear that some are trying to prevent ultimate resolution of the bill. The majority however, wants to cut off debate before it even begins. It appears that the real strategy is to be technically on the civil rights bill without ever having to engage in debate, so that the chairman of the committee and the White House will have time to conclude their negotiations, and bring to an expectant body a compromise which we will endorse and pass in a fit of grateful relief.

Mr. President, last week has shown us that this is not an easy piece of legislation to correct. For those of us who have been shown various samples from the negotiations, the most typical reaction has been approval but alarm. Too often proposals have been made without an appreciation of the consequences involved.

Mr. President, the majority leader has an absolutely horrendous task in this body. He has to balance 100 egos, thousands of expectations, and thousands of requests. He has on occasion correctly chided us for not moving as fast as we should. He has on occasion chastised his colleagues for not being ready to offer amendments.

Mr. President, this is the first time of which I am aware where the majority has chosen to penalize Senators for trying to offer amendments. Mr. President, the prudent course of action would be for this body to vote against cloture today, tomorrow, and for the next few days, and allow Senators to offer amendments to S. 2104.

We know cloture is set for today, and for tomorrow, and it may be set for the next day. I do not know. We as a body have much to gain by understanding this bill which is before us and debating the proposals that will be made. Since all of us will be considered employers under the legislation that will be required by law to comply with its provisions, we should have a special interest in comprehending its requirements.

I hope my colleagues are listening to me. If they are going to impose this bill on themselves, even if in the limited way that the Ford amendment permits, they had better darned well know what is in this bill, and I intend to tell them through amendments and through my remarks in support of those amendments.

I think that once Senators find out that they are imposing this on every business in America of a certain size they will be opposed. All of us are going to be considered employers under this legislation, and we will be required by law to comply with its provisions. I think we should have a spe-

cial interest in comprehending the bill's requirements.

We have nothing to gain by placing the Senate under a virtual gag order. We debated the Grove City legislation. We debated the fair housing amendments of 1988. We debated the Americans With Disabilities Act, and we reached near unanimous conclusions on all of them because we corrected those bills ultimately before they passed. Why must we now bar debate on the Civil Rights Act of 1990 even before it begins? I reserve the remainder of my time.

Mr. KENNEDY. Mr. President, how much time do I have?

The PRESIDING OFFICER. The Senator from Massachusetts has 11 minutes, 49 seconds remaining. The Senator from Utah has 9 minutes and 45 seconds.

Mr. KENNEDY. Mr. President, I understand the amendments that are to be proposed by the Senator from Utah will be germane. So there will be an opportuity to consider those amendments should the cloture petition be accepted, which I hope it will. I want to just briefly review for the membership where we are with regard to the situation at the present time.

On June 22 the majority leader moved to take this legislation up. Our Republican friends objected to being able even to proceed to the legislation.

With all respect to the minority leader, and the ranking minority leader of our committee, they objected to even bringing this up.

And before we start having crocodile tears about there being a denial for full consideration--

Mr. HATCH. Will the Senator yield? Mr. KENNEDY. Not at this time,

Mr. President. Regular order. Mr. HATCH. Mr. President, I

raise--Mr. KENNEDY. Am I recognized,

Mr. President? Mr. HATCH. I raise a point of order. Mr. KENNEDY. I want to indicate

to the membership exactly where we are. That request was made, objected to, and so the cloture petition was filed. On June 25, at the request of the minority leader, the cloture petition was vitiated. There was talk about wanting to get action, talk about wanting to have debate, and talk about having an opportunity to express oneself. It was the belief of the minority that they wanted more time to give consideration. I must say that I certainly supported those procedures, because we were interested in trying to see what kinds of further accommodations could be made, at the administration's request. Quite frankly, those very much involved were Senator JEFFORDS, myself, and the others.

On July 10, 1990, the Senate proceeded to the bill and addressed the issue of the congressional coverage, which the Senator has referred to. On

July 13, the cloture motion was filed. Let me say to the Members that with regard to the committee bill and the substitue, every one of those changes have been moving closer to the position both of the administration and of those who found objections to the legislation.

They say we do not want quotas. We say, OK, we will put particular language in there. They say they want specific language from the Griggs decision. We put in specific language regarding the Griggs decision. They want to make it clear there is going to be no damages on disparate impact. We put them in here.

Then we hear, my goodness, we are changing the language in all of these ways that none of us can possibly understand or comprehend in such a short period of time.

Mr. President, that is not reasonable or a fair characterization of the alterations and changes. We are quite prepared to enter into time agreements. I understand from an initial survey that out of 90 some amendments filed, better than 75 percent are relevant. I will ask consent that any of the amendments which are relevant or are germane that the Members want to call up be made in accord to conform with the legislation on which cloture is filed to preserve those rights. I am quite prepared to do that. That would be my intention.

I say, Mr. President, that I doubt if there has been a piece of legislation which in one form or other has been before this body, which Members understood was going to be considered, for a longer period of time than this. Quite frankly, if we were able to get agreement for a definite time for the conclusion of this legislation-and I understand the minority leader wants to do that-I am glad to urge the leadership on our side to follow that procedure. But barring that, Mr. President, I think that on an issue which is essentially discrimination-discrimination against women and minorities in the workplace-I do not know how long we have to wait on that issue. How long do we have to delay the debate on that issue? That is what we are talking about.

There will be those who are opposed to this, who will oppose it on every procedural ground, as well as substantive ground. That has been the record in the 28 years that I have been here. It was true when we were considering the 1964, 1965, and 1967 act, and it is apparently true today.

So I just remind our Members that I feel that the efforts that have been made by the bipartisan group of original sponsors have tried to accommodate the legitimate concerns. Every single change that has been made has been done to address those concerns which have been expressed on the

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17663 floor over a period of time. I do not believe that the ranking minority leader can point to an exception to that. So I want to give the assurance to the membership that this is the current situation.

Mr. HATCH addressed the Chair. The PRESIDING OFFICER. The

Senator from Utah. Mr. HATCH. Let me set the record

straight. There never was a problem with the motion to take this bill up. I think everybody would have voted 100 percent for it, but they vitiated it because they knew there was no problem. There was a problem in filing cloture. To be honest with you, that is the problem. I do not think I have ever been against the motion to take it up. The fight has to be on the bill.

If there are not quotas involved in this bill, why are all these so-called amendments floating up and down and all around this particular bill? There are all kinds of other problems. I do not think it is fair to stand up and say that only certain people are for civil rights. I think everybody in this body is. We ought to all be for a decent bill.

The real complaint here is not that we cannot get a decent bill. We had it in the past. The complaint is that we have not had a chance. There has not been one second for amendments, other than the Ford amendment, which really is not a critical amendment to this bill.

I yield 30 seconds to the distinguished Senator from Indiana.

Mr. COATS. Mr. President, I thank the Senator from Utah for yielding the time. I recognize the time limitation we are on, and I will not take much time.

Mr. President, even in the most open society there must be some closed questions. And undoubtedly the most essential is the equal treatment of all its members-a uniform respect for individual worth. It is an imperative rooted in Judeo-Christian principle and national precepts. It is a demand of conscience and compassion.

The history of America is propelled by the gradual widening of that circle of legal inclusion and protection. To minorities and women. To the innocent and the elderly and the handicapped. We strive to create a society where the only entrance fee for contribution and accomplishment is talent and industry.

That task is not finished. But our progress must not be devalued. Within the memory of most here discrimination had the sanction of law. The humiliation of a few was the policy of courts and legislatures. Those wounds are still fresh-easily reopened by outbreaks of racial hate. But the law has become a friend of equality.

As we look at civil rights legislation, however, it is important to maintain one distinction. Numerical racial imbalance is a challenge to our persua-

sion and leadership-a compelling reason to provide incentives for inclusion. Racial discrimination, on the other hand, is a violation of the law that merits our prosecution. There are moral and legal differences between the two.

Numerical imbalance is the result of a national history we must transform by recruitment, education, and training-all the elements of equal opportunity. Discrimination is a criminal act of will and intention, or perhaps of the grossest sort of negligence.

Imbalance does not, in itself, prove discrimination. But that is not a reason for complacency. Redressing racial imbalance requires innovationbeyond tired and discredited quotas.

We need to find solutions. But we need to look beyond rigid quotas or other :µurely numerical answers. A truly colorblind society is not an unreachable ideal or outdated utopia, existing only in naive civil rights rhetoric of the past. It is the substance of equal treatment under the law. Purchasing any goal, no matter how noble, at the price of race-based preference is not compassion, it is injustice. It engenders resentment and insults those who refuse to be patronized.

And so we come to S. 2104. It is not my intention to sound disrespectful of this proposal, because I am not. I merely fear it.

It comes to us in the language of equality. It professes to defend the weak. But after cutting through each layer of rhetorical flourish, the core of this legislation is an unprecedented extension of governmental power, and an attack on the impartiality of the law. It blurs the distinction between imbalance and discrimination. And it replaces our pursuit of equal opportunity with a destructive search for equality of result.

The deficiencies of this legislation begin in its origins. Supporters claim that important civil rights progress has been undone by the Supreme Court in recent cases. They call for a return to previous judicial standards outlined early in the 1970's.

But their analysis of these earlier cases is seriously flawed. And the errors that result propel S. 2104 far beyond any Supreme Court precedent.

Many supporters of this bill adopt a curious reading of previous court rulings. They claim that, according to the Griggs case decided in 1971, it was the employer that was forced to bear the burden of proving his innocence. If there was a racial imbalance in the workplace, they contend, it was businesses which were required to make their case for economic necessity.

But this, clearly, was never the case. Griggs kept the burden of persuasion on the challenger, not the business. It was the plaintiff that had to prove a business' hiring practices could not be

justified by business necessity, not the other way around.

The legislation before us turns this standard on its head. The burden of persuasion is placed squarely on the employer. This measure essentially makes numerical racial or gender imbalance alone an illegal act. If it exists, an employer stands convicted of racism until he proves otherwise-guility till proven innocent.

If an employer tries to make the case for business necessity, this bill immediately stacks the deck against him. Business necessity is defined as "essential to effective job performance" or as the Kennedy-Danforth revision would define it, "substantial and demonstrable relationship to effective job performance."

Griggs did speak of "business necessity" but explained that this meant simply "job related," and having "a manifest relationship to the employment in question." The language of S. 2104 goes far beyond the Griggs requirement, imposing a standard that is virtually impossible to attain. Can a no drug policy, for example, be proven to be "essential to effective job performance?" Can a company require advanced academic degrees or accomplishments if it cannot somehow be proven these requirements are essential to a given position? What form could such proof possibly take?

Each of these requirements could be essential to a business. In each case they could be difficult, if not impossible, to prove. Each could have a disparate impact. Each, it seems to me, would be called into question under this law.

At the same time S. 2104 is opening up the doors to endless discrimination suits, it tries to limit the ability of victims to sue for reverse discrimination. A litigated or consent judgment cannot be challenged afterward, once an opportunity to present objections has been given.

To put it simply, if an employee reads in the newspaper about a judgment entered against his employer, he has been given his final warning. If he does nothing at that point to express his opposition, under S. 2104 he is forever barred from asserting his rights. No notice from the court or hearing on the matter is required. Fairness is sacrificed to efficiency.

There is an odd, Orwellian twist to this legislation that deserves more attention than it has been given. Section 5 of S. 2104 prohibits employers from even thinking discriminatory thoughts when making employment decisions, even if those thoughts are not finally decisive. An employer can be fully justified in firing an employee, but if he has some lurking prejudice as an additional, contributing motivation, he may be subject to compensatory and punitive damages.

17664 CONGRESSIONAL RECORD-SENATE July 17, 1990 This legislation allows for legal re

dress even with the thinest of causal ties between discrimination and an employment decision. If, for example, sexist thoughts enter into the mind of one member of a partnership review board, this would be illegal. It would not matter that this motivation did not have a decisive effect-only a contributory one-on the board's final decision. Damages would still be available. The result, to put it mildly, is absurd.

In addition, the act may also have the paradoxical effect of making voluntary affirmative action plans illegal. Current laws allows for the consideration of race or gender in employment decisions if there is a manifest imbalance in the representation of minorities or women in a traditionally segregated job category. Minorities can be given preference in a tie breaker among equally qualified applicants.

But under section 5 of this legislation, these voluntary affirmative action plans could arguably be a violation of the law. Any consideration of race or sex as a contributing factor in employment decisions is off limits. A bill designed to aid minorities could end up forbidding our compassion.

The practical result of this confused and confusing piece of legislation is clear. Though it does not mention the Q word, the act will extort quotas from employers. The only alternative is endless litigation.

Consider an employers dilemma. Under this legislation, a plaintiff only needs to show a numerical imbalance of minorities in the workplace, and that an employer has policies with a disparate impact. These charges do not have to be specific. Any good lawyer will be able to draw up a long list of employment criteria that might qualify. Then the employer must justify each and every one as being "essential to effective job performance."

Rather than bear this oppressive burden of proof and pour money into court fights they cannot win, businesses will hire by quotas. This will be their only shelter from this new storm of civil rights litigation.

This bill legalizes, even mandates, the very thing it set out to prohibitdiscrimination. It asks for equal outcomes rather than equal opportunity. Instead of promoting healthy and equal competition, it would create racial polarization. Instead of leading us on the path of a colorblind society, it would magnify our differences and lead to tension and resentment. Instead of embracing justice, it promotes favoritism.

This is not civil rights of a type I have ever known-no matter what it is named. And this body would be wise to reject it.

Several Senators addressed the Chair.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KENNEDY. Mr. President, I yield myself some time. I want to put in the RECORD, from June 22, the request of the majority leader:

Mr. MITCHELL. I now ask consent to call up S. 2104, the Civil Rights Act of 1990.

The PRESIDING OFFICER. Is there objection?

Mr. DOLE. Mr. President, I have a request that we have an objection on our side.

That is an objection to proceed, Mr. President.

I am glad to yield 2 minutes to the Senator.

Mr. CHAFFE. Mr. President, I would like to direct a question to the distinguished floor manager of the bill.

First of all, my question is: What is lost if cloture is not invoked today, briefly, because I have another question on that? As I see it, in this civil rights bill, since it has been on the floor, we have taken up and disposed of the crime bill, ADA bill, and now the textile bill. So I am not sure that those who do not vote for cloture are delaying the cause.

Is that a suggestion? Mr. KENNEDY. What I wanted to

indicate is basically this legislation in one form or another has been before the Senate for 3 % weeks. I cannot say we had all of it. But we had the essential aspects on it for some 3 % weeks. There is timeliness. As I understand, of all the amendments that have been introduced-there have been some 90 amendments-more than 75 would be germane.

We are quite prepared to enter into time agreements. I indicated to the Senator from Utah as well as the minority leader, if they give us an idea of final passage time I would make the request of the majority leader to vitiate. But we really have to take some action, we believe, on a measure of importance and that has been the subject of a great deal of debate.

Mr. CHAFEE. It is my understanding that the distinguished Senator from Massachusetts has been in on the negotiations that are ongoing and constructive. Am I correct in understanding that the Senator from Massachusetts was with the Chief of Staff of the President as late as last evening negotiating?

Mr. KENNEDY. We have spent many long hours with the Chief of Staff. We indicated from the very beginning, Senator JEFFORDS and I, we believe it is in the best interest of the country to be bipartisan and have the President support it. That is still my position. I am hopeful if we get a strong showing on the cloture that perhaps that may very well be the kind of action that can push us across the finish line. That would be my hope.

Mr. CHAFEE. It seems to me as I look on this that progress is being

made in these negotiations. I personally have trouble understanding why we are to cut off, take the peremptory step, if you would, of cloture at this time, when the negotiations are going on quite successfully I think; the parties are moving closer together.

Mr. KENNEDY. There is an essential and fundamental existing difference with the administration to the point where I do not believe there should at this point be cloture. I believe that is a fair representation by the chief of staff and certainly by myself and the others who are cosponsoring this legislation where the Senate ought to express itself. I have never questioned the good faith of the Governor or the willingness of the President.

These are enormously important matters, but I do not believe that we can move beyond it. I want to give assurance to the Senator that I just do not believe we can carry that process further at this time. I think there is a real responsibility and obligation to be decisive about where we stand on this issue.

The PRESIDING OFFICER. Who yields time?

Mr. HATCH. How much time remains?

The PRESIDING OFFICER. The Senator has remaining 6 minutes and 19 seconds; the Senator from Massachusetts has remaining 1 minute and 33 seconds.

Mr. HATCH. I have to say I think it is disingenuous to claim that where there are 90 amendments-I heard there were 70, but with 70 or 90 amendments-that we are provided postcloture with a real debate.

The minority leader on this side would have 1 hour and if we go to any votes, voting time is taken out of my own time. So at the most all I probably would get through with are two amendments, if they would even let me bring them up. They have not let me bring any up so far because of the way they operated the floor.

It took the distinguished Senator from Massachusetts 15 minutes to just explain his current proposal with regard to the quota words, which is a very minor part of the total language of the bill but which is a very major part of the bill.

Can you imagine trying to explain the intricacies of this very complex bill in about 5 minutes max to get two amendments done when you have at least five or six. And there are others, who are Senators here, who have legitimate rights, who ought to be able to present their amendments on both sides of the floor. Will they be equally foreclosed?

Look, the language from page 426 from Griggs cited by Senator KENNEDY is not the holding of Griggs and everybody in employment law knows it. The

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17665 phrase "significantly related to successful job performance" is a restatement of the question certified to the Supreme Court. It is the plaintiffs' lawyer's phrasing of the issue, not the Court's. The holding in Griggs, its definition of "business necessity" is: Manif estedly related to the employment in question. This language is used in the Albermarle case, the Dothard case, the Beezer case, the Teel case, all monumental cases in the field of employment law and discrimination law, and all of them holding the same as the Griggs language. None follow the Kennedy language; it is always the Griggs language. The Kennedy language was just a question in the Griggs case, not the holding of the case.

The changes Senator KENNEDY suggested this morning will not solve the quota issue. They will not even come close. I hope we have adequate time to debate the amendments on this bill, but the only way we can is if cloture is not invoked today.

The only way further discussions can occur is if cloture is not really invoked. But the only way we can really act within the hallowed traditions of the Senate is if cloture is not invoked so that we go on this bill and we debate these important amendments and we give Senators a chance to be Senators.

I have to say I am getting pretty sick and tired of major monumental bills like this being called up and cloture filed either the same day or within a relatively short time thereafter, really cutting off effective debate on these matters.

I know there are people on our side who are going to be prepared to shut a lot cf things down around here, and I may be one of them, if this is the way we are going to be treated, which is hostile, wrong, unfair; it is not in keeping with the best traditions of the Senate, and on this bill it is dangerous.

I would like a civil rights bill. I would like to be able to support it. I woule like it not to be a quota bill. I would like it not be a litigation bonanza for lawyers at the expense of everybody else in society, running up the cost to everybody in society.

I would like to be able to make sure and ensure that every American citizen has an equal protection constitutional right to their day in court not foreclosure because of some new silly jurisprudential change that this bill is going to bring about.

I would like to address the Price Waterhouse problem where even though the business makes the right decision in the employment decision they can be sued for compensatory and punitive damages because any one of the supervisors had a discriminatory thought. That would overrule and overturn even Justice Brennan's case, his decision, his opinion. That shows how rad-

ical this particular bill is. Even Justice Brennan said that should not be done.

Here we are going to do it by cloture, without any chance to debate it, without any chance to have Senators know what is really involved. And we are going to impose all this stuff on us.

I think it would be fitting if this bill passes in the way that it is being imposed on us, because maybe that is the only way the U.S. Senate will ever understand what we are doing to the rest of our country; what we are doing te the business people out there in the country; what we are doing to foster racial hatred, animosity and difficulties. That is what this bill is going to do. This bill triumphs the concept of group results, and it ignores the timehonored concept of equal rights.

This bill is a very, very serious bill. It ought to be debated. I am prepared to live with whatever the Senate decides to do, because I am prepared to live with what the Senate is going to do it itself if it invokes cloture and passes this bill even with the substitute-although I cannot see how any Parliamentarian can find germane what the Senator is going to bring up after cloture.

I reserve the remainder of my time. The PRESIDING OFFICER. Who

yields time? Mr. KENNEDY. Mr. President, I

yield my remaining time to the Senator from Vermont [Mr. JEFFORDS].

Mr. JEFFORDS. Mr. President, the Senator from Utah spoke eloquently in defining the differences he has, which is the point I would like to make. Those differences have been well delineated. We have been negotiating for 2 months with the administration and others who feel differently about the bill than the one that is proposed Many substantial changes have been made during that period of time.

In addition to that, the options have been well articulated. There is no need for any further debate.

I would also like to clear up the fact it was myself and other Republicans who urged to have the motion to proceed vitiated so that we could continue to negotiate. We wanted to see that these issues would be more clearly delineated so there would be a way that this body could quickly ascertain the differences and have the vote.

In my mind there will be sufficient time to discuss those important issues that are left and the time that will be allowed after cloture will give us an opportunity to make this bill into one that we all can agree upon, or at least the majority can and that the President can live with.

I yield back the remainder of my time.

The PRESIDING OFFICER. The Senator from Utah has 13 seconds re-maining.

vote against cloture and let us go to the amendment. I think everybody will feel better about it. It is the fair way to proceed and maybe we will get this bill where 100 percent or a vast majority of Senators will support it. I think I have a reputation for that and I would surely try to do that if we can.

The PRESIDING OFFICER. The Senator from Massachusetts has 12 seconds remaining. Mr~ KENNEDY. Mr. President, I ask

unanimous consent to have printed in the RECORD an excellent New York Times editorial entitled "Enough Haggling on Civil Rights."

There being no objection, the editorial was ordered to be printed in the RECORD, as follows: [From the New York Times, July 17, 1990]

ENOUGH HAGGLING ON CIVIL RIGHTS

It's been a year since the Supreme Court, after misreading civil rights laws in several cases, overruled its own unanimous 1971 precedent that gave full force to the pathbreaking 1964 Civil Rights Act. It's been two months since President Bush, saying he wanted to sign a new rights bill, ordered negotiations with Congress.

Now the Senate ought to go ahead and pass its own solid bill, whatever the White House says.

The most urgent need is to rearm minorities and women with the ability to force employers to justify possibly discriminatory hiring and job practices. These practices include testing and education requirements that perhaps wrongfully frustrate attempts to desegregate the workplace. Former Chief Justice Warren Burger held two decades ago that when minorities can show they're disproportionately fenced out of jobs, the employer must show business necessity.

That was a fair burden. Employers are best positioned to explain why their rules satisfy business needs. But last year the Supreme Court ruled otherwise, arguing that such a burden could drive companies to reverse-discriminatory quotas. But neither President Bush nor business lobbyists who support this decision produce any evidence that the 1971 ruling resulted in job quotas. The issue is a red herring.

Besides insisting that he won't sign "a quota bill," Mr. Bush says that he won't approve "a lawyers' bonanza." The Senate bill does allow more suits for damages. But it doesn't provide huge punitive awards for unintentional discrimination.

Some, with encouragement from the White House, have criticized the Senate bill for not doing enough to help society's underclass. That may be true, but it's irrelevant. This bill is addressed to the rights of workers who are qualified but denied their rightful place in the job market. These eroding rights are in danger and need attention.

The Senate bill would work no radical innovations. Rather it seeks to recapture gains made in the courts of a previous era and in Congress over many years. With today's Supreme Court often pulling in the other direction, these rights require reaffirmation.

Mr. HATCH. Mr. President, I call on The PRESIDING OFFICER. All our colleagues to do the fair thing and time has expired.

17666 CONGRESSIONAL RECORD-SENATE July 17, 1990 NAYS-35 TEXTILE, APPAREL, AND

FOOTWEAR TRADE ACT OF 1990 The PRESIDING OFFICER. Under

the previous order, the Senate will resume consideration of H.R. 4328, the textile bill, which the clerk will report.

The assistant legislative clerk read as follows:

A bill <H.R. 4328) to authorize appropriations for fiscal years 1991 and 1992 for the Customs and trade agencies, and for other purposes.

The Senate resumed consideration of the bill.

Pending: (1) Wilson amendment No. 2204, to delay

the effective date of the bill if the President cannot certify that the cost to consumers for the products affected by the act will not exceed $1 billion. (The yeas and nays are ordered on a motion to table the amendment.>

(2) Gorton amendment No. 2211, to modify agricultural provisions by exempting quota bonus from the 1 % global limit and grants quota bonus of 50% for each dollar of agricultural imports from the United States. <The yeas and nays are ordered on a motion to table the amendment.> e Mr. LEVIN. Mr. President, as I indicated last week with regard to the Gramm amendment, we ought to be concerned about the effect of this bill on consumer prices. But like that amendment, this amendment gives the administration a simple way to avoid implementing the law.

The amendment would suspend the provisions of the bill in any year that the Secretary of Commerce does not submit a report to Congress estimating the effect the bill would have, either directly or indirectly, on consumer prices.

If this legislation is enacted, and I hope it will be, it will become law over a Presidential veto. Given the administration's opposition to the bill, I cannot support an amendment that would give the President the ability to suspend the law simply by not submitting a report to Congress.

Mr. President, I am sympathetic with the concerns which underlie this amendment. However, the amendment gives the administration too much discretion for me to be able to support it .•

VOTE ON MOTION TO TABLE AMENDMENT NO. 2204

The PRESIDING OFFICER. Under the previous order, the question occurs now on the motion to table amendment No. 2204 offered by the Senator from California [Mr. WILSON]. The yeas and nays have been ordered, and the clerk will call the roll.

The assistant legislative clerk called the roll.

Mr. SIMPSON. I announce that the Senator from Minnesota [Mr. BoscHWITzJ is necessarily absent.

The PRESIDING OFFICER <Mr. KERRY). Are there any other Senators in the Chamber who desire to vote?

The result was announced-yeas 70, nays 29, as follows:

CRollcall Vote No. 155 Leg.]

Akaka Bentsen Biden Bond Boren Breaux Bryan Bumpers Burdick Byrd Cochran Cohen Conrad D'Amato Dasch le DeConcini Dixon Dodd Domenic! Exon Ford Fowler Garn Glenn

Adams Armstrong Baucus Bingaman Bradley Burns Chafee Coats Cranston Danforth

YEAS-70 Gore Metzenbaum Graham Mikulski Harkin Mitchell Hatch Moynihan Heflin Nunn Heinz Pell Helms Pryor Hollings Reid Humphrey Riegle Inouye Robb Jeffords Rockefeller Johnston Roth Kasten Rudman Kennedy Sanford Kerrey Sar banes Kerry Sasser Kohl Shelby Lau ten berg Simon Leahy Specter Levin Stevens Lieberman Thurmond Lott Warner McClure McConnell

NAYS-29 Dole Murkowski Duren berger Nickles Gorton Packwood Gramm Pressler Grassley Simpson Hatfield Symms Kassebaum Wallop Lugar Wilson Mack Wirth McCain

NOT VOTING-1 Boschwitz

So, the motion to lay on the table amendment No. 2204 was agreed to.

Mr. MITCHELL. Mr. President, I move to reconsider the votes by which the motion was agreed to.

Mr. SARBANES. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

VOTE ON MOTION TO TABLE AMENDMENT NO. 2211

The PRESIDING OFFICER. Under the previous order, the question now is on agreeing to the motion to table the amendment of the Senator from Washington [Mr. GORTON]. The yeas and nays have been ordered. The clerk will call the roll.

The bill clerk called the roll. The PRESIDING OFFICER. Are

there any other Senators in the Chamber desiring to vote?


CRollcall Vote No. 156 Leg.] YEAS-65

Akaka Bentsen Bi den Boren Breaux Bryan Bumpers Byrd Cochran Cohen D'Amato Daschle DeConcini Dixon Dodd Exon Ford Fowler Garn Glenn Gore Graham

Heflin Heinz Helms Hollings Humphrey Inouye Jeffords Johnston Kasten Kennedy Kerrey Kerry Kohl Lau ten berg Leahy Levin Lieberman Lott McClure McConnell Metzenbaum Mikulski

Mitchell Moynihan Murkowski Nunn Pell Pryor Reid Riegle Robb Rockefeller Roth Rudman Sanford Sar banes Sasser Shelby Simon Specter Stevens Thurmond Warner

Adams Armstrong Baucus Bingaman Bond Boschwitz Bradley Burdick Burns Chafee Coats Conrad

Cranston Danforth Dole Domenic! Duren berger Gorton Gramm Grassley Harkin Hatch Hatfield Kassebaum

Lugar Mack McCain Nickles Packwood Pressler Simpson Symms Wallop Wilson Wirth

So the motion to lay on the table amendment No. 2211 was agreed to.

RECESS UNTIL 2:15 P.M. The PRESIDING OFFICER. Under

the previous order, the Senate will stand in recess until the hour of 2:15 p.m.

Thereupon, the Senate, at 12:42 p.m., recessed until 2:15 p.m.; whereupon, the Senate reassembled when called to order by the Presiding Officer [Mr. SANFORD].

TEXTILE, APPAREL, AND FOOTWEAR TRADE ACT OF 1990 The Senate continued with the con

sideration of the bill. The PRESIDING OFFICER. With

out objection, the committee amendment in the nature of a substitute, as amended, is agreed to.

The Senator from South Carolina is recognized.

Mr. HOLLINGS. Under the unanimous-consent agreement, I call for the regular order.

The PRESIDING OFFICER. The question is on the engrossment of the amendments and third reading of the bill.

The amendments were ordered to be engrossed, and the bill to be read a third time.

The bill was read a third time. Mr. DURENBERGER. Mr. Presi

dent, I rise to express my opposition to the Textile, Apparel, and Footwear Trade Act <H.R. 4328). As all of my colleagues know, throughout the decade of the 1980's, protectionist textile and apparel legislation was adopted by the Congress and then vetoed by former President Reagan. In each instance, the President's veto was sustained. I believe a similar fate awaits this legislation.

Two weeks ago, the U.S. Trade Representative, Ambassador Carla Hills, eloquently stated the reasons why the administration is firmly opposed to this legislation. Let me take a moment to quote Ambassador Hills:

By providing permanent, rigid protection from imports to domestic producers of textiles, apparel, and footwear, this legislation would cause tremendous harm to our economy, flagrantly violate our international obligations, and virtually destroy any chance of a successful conclusion of the Uruguay round of multilateral trade negotiations.• • • As the enactment of this legisla-

July 17: 1990 CONGRESSIONAL RECORD-SENATE 17667 tion would be so highly detrimental to the overall interests of the United States, the President's senior advisers would recommend that he veto H.R. 4328, if it is presented to him.

Mr. President, the textile and apparel industries have long operated under the umbrella of strict import protection. We have more than 1,000 quotas with 38 foreign suppliers of textiles and apparel, and we are currently seeking agreements with three additional countries. In fact, 75 percent of our textile and apparel imports are restricted by quotas, and are protected by tariffs of almost 20 percent-tariffs that are nearly four times higher than duties imposed on other imports.

These are not industries that are on the verge of collapse. Quite the contrary. Domestic shipments for both textiles and apparel were up 6. 7 percent in 1989 while exports jumped a dramatic 27 percent. And capacity utilization in the textile industry last year was almost 89 percent-6 percent higher than for all U.S. manufacturing.

Mr. President, by establishing unilateral quotas on virtually all textile and apparel imports, this legislation clearly violates the Multifiber Arrangement [MFAJ and the 38 international agreements we have negotiated under the MFA. It may also violate GATT article 19. I ask the Members of the Senate, especially the supporters of this legislation to consider the implications for international trade if the United States now decides to unilaterally abrogate commitments it has made in international trade agreements.

The Uruguay round of multilateral trade negotiations is now entering a critical phase. There are less than 6 months remaining in these negotiations and if they fail, we may have lost a real chance to reform the international rules for trade in agriculture, intellectual property, services, and investment. Our negotiators are also discussing trade in textiles and apparel. Should we adopt the bill before us, should the United States unilaterally remove textiles and apparel from the negotiating table, we could well see the demise and collapse of the entire Uruguay round. Is that what we want? I think not.

Finally, Mr. President, I believe that if we adopt this legislation we will not only scuttle chances for success at the Uruguay round, but we will open ourselves to retaliation from our trading partners, which can only lead to counterproductive counterretaliation. In fact, I would suggest to all of my colleagues that a vote for this bill essentially says that clothing, textile, and shoeworkers, who work in facilities where nearly all of the machinery is imported from Japan and West Germany, are to be insulated in perpetuity from international competition;

while the American agricultural, electronics, aircraft and other export industries must pay for this protection by finding the doors to foreign markets closed in their face.

Supporters of this bill claim to have carved out a special exemption to ensure that agricultural exports will not be harmed by this bill. This provision says, in effect, that if a country increases it's agricultural imports from the United States, the President can increase that country's textile and clothing export quota. But, in order for such an increase to occur, another country will lose a portion of its quota. Mr. President, that is not the type of agricultural trade policy that is going to help farmers in Minnesota or Iowa or in South Carolina.

In the first place, some countries cannot increase agricultural imports simply because of their size and their small population and economy. For example, Hong Kong already imports virtually all of its food. Should we penalize Hong Kong simply because it cannot purchase more American agriculture products? Moreover, what about the poor countries such as Bangladesh, that just do not have enough foreign currency to buy more of our agricultural products. Should they lose a part of their quota because they are poor?

Mr. President, why should countries be rewarded only for increasing their imports of American agriculture products? Why should there not be rewards if they purchase more American computers, or more American telephones, or more American airplanes, or any other American products? I am not advocating such a change in this bill because I think that we would establish a dangerous precedent in trying to manage world trade based on political agreements rather than market conditions. But what I am suggesting is that agriculture, just like every other industry, would be significantly harmed if we begin down the road of managing trade in one product in exchange for another.

Mr. President, I understand the real human concerns that have been expressed by the proponents of this legislation. Jobs have been lost in this industry despite decades of protectionism. But I would note that many of these job losses have resulted from the industry's efforts to modernize its facilities with highly specialized and automated equipment. Surely it is not easy for our domestic industry to compete with low-range textile and clothing jobs in Bangladesh, Thailand, and other developing countries. But further proection in this industry is not the answer. It will cost jobs in other sectors of our economy and will ultimately drive up the price of clothing for all Americans, especially lowincome Americans.

Mr. President, I urge my colleagues to vote against this ill-timed, and protectionist legislation.

Mr. COATS. Mr. President, I am deeply concerned over the potentially negative impact that textile imports have on th e textile industry in the United States and Indiana. Yet as I examine H.R. 4328, the Textile, Apparel, and Footwear Trade Act of 1990, I have become very concerned over the possibility of retaliation by our major trading partners and therefore conclude that this legislation before us is the wrong way to address the problem. What is needed is a more comprehensive, broadly based trade reform package.

Instead of addressing a very real problem through comprehensive reform, this bill seeks to protect two industries, textiles and shoes, by imposing rest rictions that are sure to invite retaliation. One can apply the same concerns to a number of products like autos, machine tools, steel, telecommunications equipment, computers, and agriculture. These products, and the jobs they provide, are all important to the State of Indiana, yet ignored by this bill.

And what of the almost certain retaliation that this legislation would invite against U.S. exports, particularly agricultural products? People in Indiana are very mindful of the importance of agricultural exports to the State's economy. Indiana is second only to the State of Washington in per capita income derived from exports. Indiana exports nearly 50 percent of all its crops. Our State sent abroad more than $1.4 billion in agricultural products in 1989; ranking fifth in corn exports with $650 million and fourth in soybean exports with $430 million. These exports provide jobs for many Hoosiers, they must not be placed in jeopardy.

While trade reform legislation is a top priority, we cannot afford to adopt protectionist measures intended to protect a few products. Any reform of our trade laws must be comprehensive and take into account all product categories. We also cannot afford to adopt protectionist measures that only serve to invite retaliation by our trade partners, hurting U.S. exporters. Whatever measures are adopted must take into account our commitments and responsibilities under the GATT and the Multifiber Arrangement. Therefore let us respond to our trade problems with strong legislation that ensures a better trading system by insisting on open and fair markets here and aboard.

Mr. GLENN. Mr. President, the Senate last considered legislation similar to the current Textile, Apparel, and Footwear Act in 1988. In considering the 1988 bill, I spent a great deal of time listening to the arguments of both proponents and opponents, as

17668 CONGRESSIONAL RECORD-SENATE July 17, 1990 well as studying statistical information indicative of the market conditions and health of the domestic textile and apparel sector.

It is undeniable that since its peak in 1973, this industry has experienced a very significant decline in employment and increase in imports. To its credit the industry has invested substantially in modernization, increased productivity, and taken other steps to increase its competitiveness. Studies indicate that some of those very steps contributed substantially to the industry's job loss. Despite dire predictions throughout the 1980's, the U.S. textile and apparel industry is still alive, and indeed relatively well, today. I acknowledge that this wellness may not be spread evenly throughout the various segments which make up the industry as a whole.

I concluded in 1988 and reaffirm today, based upon a reassessment of the statistical indicators, that market conditions, cyclical though they may be, simply do not justify the breadth of protection found in this bill. I cannot support permanent import quotas for an industry whose shipments are up; which has been almost consistently profitable; is operating at near full capacity; and whose level of import penetration is not vastly different from that of many other industries of particular significance in my State of Ohio such as steel, autos, machine tools, and glassware.

Now this is not to say that the level of textile and apparel imports should be completely unregulated. Over and above the remedies available to any U.S. industry subject to particularly acute or unfair competition from imports, and tariffs as high or higher than the EC or Japan, the textile and apparel industry currently enjoys the extraordinary protection of the Multifiber Arrangement and associated bilateral agreements. Currently 75 percent of our textile and apparel imports are covered by some 1,200 quotas with 38 foreign suppliers. I have supported the MFA regime and our trade laws, and believe they should be rigorously enforced. Many believe that this regime has helped the textile industry recover and attain its current level of productivity. Under these circumstances, I cannot justify extending additional, broad, and permanent import protection to this industry.

I have listened with great sympathy to the stories of wrenching dislocation caused by the closure of U.S. textile and apparel operations. I feel deeply for the dislocated workers and believe they deserve all appropriate assistance in finding new employment, including retraining in new skills. It is certainly true that some, even a majority of these closures particularly in the apparel sector, are attributable to cheap imports from low-wage countries. Unfortunately, that scenario is not

unique to the textile and apparel industry in the United States.

However, this bill addresses itself to the entire textile and apparel industry so we must assess the economic wellbeing of the industry as a whole in making a determination as to whether additional protection is warranted and in the national interest. We must balance the interests of this industry in additional protection from imports against the considerable cost to consumers of more stringent limitations on imports. We must consider the precedent this bill would establish for other specific industrial sectors facing similar or greater pressure from foreign competition. And we must consider the impact of this legislation on our existing obligations under GATT and on the current GATT negotiations, known as the Uruguay round.

In a June 29 editorial, the Cleveland Plain Dealer argued succinctly and persuasively against the textile bill. I ask unanimous consent that the entire text of that editorial be reprinted at this point in the RECORD.

There being no objection, the editorial was ordered to be printed in the RECORD, as follows: [From the Cleveland Plain Dealer, June 29,

1990]

HANGING BY A THREAD

Special interests enjoy manipulating Congress during election years, when incumbents are eager to dole out favors to the folks back home. In a pre-election ritual, agribusiness extorts ever-larger subsidies, the military-industrial complex wheedles new weapons contracts, and industrial interests plead for more protection from marketplace competition.

The predictable election-year routine is now under way on trade protectionism. Throughout the 1980s, only the trade-policy pragmatism of the White House prevented Congress from taking the dangerous course of closing the U.S. market-an option, discredited among both liberal and conservative economists, that would surely undermine global prosperity.

This year the trade-policy battle is being played for the highest stakes. The world's central trade forum, the General Agreement on Tariffs and Trade, is overhauling the global rules for liberalize_g ___ 9QIDID_erce. Having jaw-boned GATT members to accept market-opening guidelines, U.S. Trade Representative Carla Hills is on the brink of scoring a triumph: nailing down a 96-nation treaty that would advance the ideal, shared by both U.S. political parties since World War II, of freer trade.

It is an odd moment for Congress to weaken the U.S. envoy's bargaining position. Yet Congress' bloated farm-subsidy bill is already attracting trade partners' criticism for violating GATT's agriculture rules. The next U.S. anti-market provocation is another textile- and shoe-quota measure, similar to the limitations Congress considered in 1985, 1987 and 1988.

The protectionist impulse was unwise then and it remains unwise now. Despite the concerns of the U.S. textile industry-a sector that, through modernization and reinvestment, has worked its way back to profitability-another layer of protection-

ism would make matters worse for the U.S. economy.

The Senate Finance Committee last week sent to the full Senate a textile-protection bill sponsored by Sen. Ernest Hollings, a South Carolina Democrat. Pointedly, the Finance Committee-which has more than its share of protectionists-did not recommend that the Senate approve the anti-market measure. Hollings' bill would limit the overall increase of U.S. textile imports to 1 % annually, even though American consumers' demand for such imports is growing by 7% a year. It would also freeze shoe imports at their 1989 levels.

Such added restraints would further inflate consumers' cost of apparel. Existing textile quotas and tariffs already cost the economy $25 billion a year, according to the Institute for International Economics; that amounts to $238 a year in higher clothing costs for every family of four. Hollings' bill would increase the total cost to about $85 billion by the year 2000-a sum so great that one longtime champion of textile quotas, the American Apparel Manufacturers Association, shuns this measure.

Sympathy for displaced textile workers leads some labor activists to seek new import limits. Such emotionalism is understandable but misguided: to save each job in the textile industry, where the average salary is $14,000 a year, quotas already compel consumers to pay an annual $40,000 of protectionism.

As the United States has promoted the GATT talks, developing nations like India, Indonesia and Mexico-all of which depend on access to the U.S. market to lift them out of poverty-have pointed to U.S. textile policy as an example of Washington's hypocrisy: As the White House hectors impoverished nations to open their markets to U.S. exports, Congress is crafting new ways to block imports of their goods.

Congress may succumb to the electionyear temptation of protectionism, but the White House should remind it-with a veto if necessary-of the bipartisan logic of free trade.

Mr. SASSER. Mr. President, I am pleased at the action of the Senate today in passing H.R. 4328, the Textile, Apparel, and Footwear Trade Act of 1990.

The textile, apparel, and footwear industries are facing unparalleled pressure from imports. Before 1980, the textile industry was fairly stable. It had a growth rate of about 1 percent annually, and imports increased by about 3 percent annually.

Since 1980, however, imports have increased dramatically and now control 60 percent of our domestic market. The shoe industry has been devastated by imports. Footwear imports are now estimated to be as much as 90 percent. It is a portent of what is to come if we do not take action now.

My own State of Tennessee has seen the effects of imports. In 1980, 96,500 Tennesseans worked in the textile and apparel industry. By 1989, that figure had dropped to 87 ,500-a loss of 9,000 jobs. In the footwear industry the figures are equally grim. In 1980, 15,700 Tennesseans earned their living in the nonrubber footwear industry. By 1987, the last year for which figures are

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17669 available, that number had been more than halved-to 7 ,050.

But these figures are more than mere statistics. They represent real people and real jobs. The closing of a textile or apparel or shoe factory can be devastating to a local community. Many such facilities are located in rural areas. They are often the major employer in the area-areas which have few alternative employment opportunities.

As I travel around Tennessee, I continually see the effects that these imports are having on my fellow Tennesseans. I talk to individuals who have lost their jobs in the communities where they have lived and worked for years. They face the future with no prospect of new jobs.

Many of these workers are prevented by family obligations and ties from moving to a new area. Many are women-often the wives of family farmers. Their income is critical in making that family farm viable. Many others are single parents and the sole support of their children.

I am deeply disturbed that the administration has chosen a head-in-thesand approach to an issue that is literally shaping people's lives. Sooner or later they are going to have to face the fact that we cannot simply throw away industry after industry and still maintain our industrial base.

The tool for taking some control over import levels has been at hand all along. However, this administration and the previous administration have failed to take any action to enforce the trade remedies already available.

The . Multifiber Arrangement that regulates international trade in textiles and apparels allows bilateral agreements that regulate imports. It permits domestic industries to adjust to changing conditions and increased imports.

Successive Republican administrations, however, have failed to use this mechanism to regulate imports. That is why we are here today.

This legislation will allow our domestic textile, apparel, and footwear industries to make an orderly adjustment to increased imports.

It sets a global guota on the import of textiles, apparel, and nonrubber footwear. Imports on textiles and apparels would be allowed a 1-percent annual growth rate. Footwear imports would be frozen at 1989 levels.

As a Senator from a State with extensive agricultural interests, I am pleased that the legislation provides that preference in the allocation of textile, apparel, and footwear quotas will be given to countries which increase their agricultural imports from the United States.

The bill also authorizes the President to negotiate tariff reductions as required under our international trade obligations.

Mr. President, I am hopeful that we can quickly move this bill through conference so that we can assist these industries before any more damage is done.

Mr. LEVIN. Mr. President, I rise to express my support for the Textile, Apparel, and Footwear Trade Act of 1990. Today, the Senate is facing one of the Nation's toughest challengesthe issue of trade.

The economic future of this country is threatened by a trade policy so weak that while 10 years ago we were the world's largest creditor, we're now the world's largest debtor. And while our national trade deficit has grown at a staggering rate, our deficit in textile and apparel has grown at an even faster rate. Textiles and apparel now account for over one-fifth of the total trade deficit. Eight out of ten shoes sold in America today are foreign made, and imports account for about 60 percent of the clothing market.

As a result, hundreds of thousands of jobs have been lost. In 1990 alone, 22 major textile and apparel plants have been closed or experienced major layoffs. Thousands of jobs have been lost in this year that has not yet ended.

Some of the job losses can be attributed to barriers to U.S. textile, apparel, and footwear exports. For instance, Korea, a big textile and apparel exporter, won't issue import licenses for many of the same products unless the domestic industry approves it. And China has a similar policy.

But when it comes to textiles and textile products, we also have an import problem which requires an enforceable limit on the growth of imports. Since 1974, the administration has had the authority under the Multifiber Arrangement [MFA] to control textile and apparel imports. The European Community, Japan, and others have used their authority under the MFA to limit imports, but the United States has not. As a result, imports have been diverted to our market, and we are on the verge of losing this critical domestic manufacturing industry.

Yet the administration has refused to exercise its authority under the MF A, and the domestic industry and American workers have suffered as a result. The administration has refused to do for our industry what our competitors have done for theirs. It's this failure of leadership that has prompted Congress to come up with the legislative proposal the Senate is considering today.

I believe this legislation is balanced and a fair response to the situation. It ensures that our vital domestic industry gets a fair shot at the home market. It provides for textile and apparel imports to grow at the rate of the domestic market. Because domestic production of nonrubber footwear has declined to the level during the

Great Depression of the 1930's as a direct result of imports penetration, the bill freezes imports at their 1989 level.

Leading the U.S.A. to competitiveness in this decade and into the next century requires more than getting tough with other nations. It means listening to the people losing their jobs and communities losing their industries. It means creating a new definition of trade. If a market is not fair, then it is not a free market.

When I speak out or when any of us speaks out and fights for jobs and fair trade, we are doing no more than what we work toward on every difficult issue facing this Nation. We are not protecting privilege for any nation, but demanding opportunity for all. Despite the industry's $18 billion modernization plan, legislation is now needed to provide it with a fair chance in today's world market.

When we fight the war on drugs, we are demanding an opportunity for our children to grow up drug free in communities that have the tools to get drugs off the streets and drug criminals behind bars.

When we push for excellence in education, we are providing an opportunity for all Americans to improve their standard of living and compete on a global scale.

When we work to clean up our environment, we are handing the next generation the opportunity to inherit a nation with natural resources second to none.

People are ready for leadership. The world is changing rapidly before our eyes-it takes no great wisdom to see it.

If we in Washington showed the courage of Eastern European leaders like Walesa and Havel, we could lick the economic challenges, win the drug war and protect our environment. People are willing to do what we have to do in the short term to provide for ourselves, and more importantly, for our kids, in the long term.

Enactment of the Textile, Apparel, and Footwear Trade Act of 1990 is a step in the direction of passing on to our children an America with a strong manufacturing base. I urge my colleagues to join me in supporting this legislation.

The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall the bill pass?

The yeas and nays have been or-dered.

The clerk will call the roll. The bill clerk called the roll. The PRESIDING OFFICER. Are

there any other Senators in the Chamber who desire to vote?


17670 CONGRESSIONAL RECORD-SENATE July 17, 1990 CRollcall Vote No. 157 Leg.]

YEAS-68 Akaka Gore Mikulski Bentsen Harkin Mitchell Biden Hatch Moynihan Bond Heflin Murkowski Boren Heinz Nunn Breaux Helms Pell Bryan Hollings Pryor Bumpers Inouye Reid Burdick Jeffords Riegle Byrd Johnston Robb Cochran Kasten Rockefeller Cohen Kennedy Roth D'Amato Kerrey Rudman Daschle Kerry Sanford DeConcini Kohl Sar banes Dixon Lau ten berg Sasser Dodd Leahy Shelby Dole Levin Simon Domenici Lieberman Specter Exon Lott Stevens Ford McClure Thurmond Fowler McConnell Warner Garn Metzenbaum

NAYS-32 Adams Danforth Mack Armstrong Duren berger McCain Baucus Glenn Nickles Bingaman Gorton Packwood Boschwitz Graham Pressler Bradley Gramm Simpson Burns Grassley Symms Chafee Hatfield Wallop Coats Humphrey Wilson Conrad Kassebaum Wirth Cranston Lugar

So the bill <H.R. 4328), as amended, was passed.

Mr. HOLLINGS. Mr. President, I move to reconsider the vote by which the bill was passed.

Mr. HELMS. I move to lay that motion on the table.


The PRESIDING OFFICER. Without objection, the amendment to the title is agreed to.

The title was amended so as to read: "An Act to provide for orderly imports of textiles, apparel, and footwear."

CIVIL RIGHTS ACT OF 1990 The Senate continued with the con

sideration of the bill. CLOTURE MOTION

The PRESIDING OFFICER. Under the previous order, pursuant to rule XXII, the Chair lays before the Senate the pending cloture motion, which the clerk will state.


CLOTURE MOTION

We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close debate on the Ken· nedy substitute amendment, No. 2110, to S. 2104, a bill to amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes.

George Mitchell, Patrick Leahy, Edward M. Kennedy, Barbara A. Mikulski, Terry Sanford, Joseph Lieberman, Wendell Ford, Daniel Akaka, Paul Simon, Tom Harkin, Howard M. Metzenbaum, John D. Rockefeller, John F. Kerry. Alan Cranston, Brock Adams, Frank R. Lautenberg.

CALL OF THE ROLL The PRESIDING OFFICER. By

unanimous consent, the quorum call has been waived.

VOTE The PRESIDING OFFICER. The

question is, Is it the sense of the Senate that debate on the Kennedy substitute amendment, No. 2110, to S. 2104, a bill to amend the Civil Rights Act of 1964, shall be brought to a close?

The yeas and nays are required. The clerk will call the roll.


The yeas and nays resulted-yeas 62, nays 38, as follows:


Adams Duren berger Lieberman Akaka Ford Metzenbaum Baucus Fowler Mikulski Bentsen Glenn Mitchell Biden Gore Moynihan Bingaman Graham Nunn Boren Harkin Packwood Bradley Hatfield Pell Breaux Heflin Pryor Bryan Heinz Reid Bumpers Hollings Riegle Burdick Inouye Robb Byrd Jeffords Rockefeller Cohen Johnston Sanford Conrad Kennedy Sar banes Cranston Kerrey Sasser Danforth Kerry Shelby Daschle Kohl Simon DeConcini Lau ten berg Specter Dixon Leahy Wirth Dodd Levin

NAYS-38 Armstrong Gramm Murkowski Bond Grassley Nickles Boschwitz Hatch Pressler Burns Helms Roth Chafee Humphrey Rudman Coats Kassebaum Simpson Cochran Kasten Stevens D 'Amato Lott Symms Dole Lugar Thurmond Domenici Mack Wallop Exon McCain Warner Garn McClure Wilson Gorton McConnell

The PRESIDING OFFICER. On this vote, the yeas are 62, the nays are 38. Three-fifths of Senators duly chosen and sworn having voted in the affirmative, the motion is agreed to.

Mr. DOMENIC!. Mr. President, I strongly believe our country should have effective laws to protect civil rights. We must assure that people are treated fairly and are judged and considered on the basis of their abilities, not by their race, gender, national origin, or religion.

I look forward to being able to support this civil rights bill, and I hope we can put together a well-considered bill that will truly advance civil rights in this country.

We enacted title VII of the Civil Rights Act of 1964 in order to assure that civil rights are protected in employment. The bill we have before us today proposes several very important changes to that law, changes intended

to respond to recent Supreme Court decisions that have increased the difficulty of proving discrimination, and have weakened our civil rights laws. Congress should address these decisions and see that our civil rights laws are as strong as they can be.

I intended to vote against this cloture motion, Mr. President, because I very much want us to produce the best bill that we can.

Negotiations intended to improve the bill are continuing. I believe we must give these negotiations our full consideration. I intend to get involved in these negotiations and do whatever I can to adequately address the concerns still existing with the bill.

Mr. President, invoking cloture in the U.S. Senate is a very special procedure. It should be used only in rare occasions when progress on a highly important issue is being hindered.

This is certainly a critically important issue, but progress on improving this bill is not being hindered. On the contrary, negotiations are proceeding and many important and constructive improvements are being suggested and considered. I for one am strongly in support of serious consideration of this bill and improvements to it. The changes being considered, like the underlying bill itself, are tremendously complicated and may take some time.

So far, the Senate has spent hardly any time at all on this bill. We have spent, perhaps, part of 2 days in debate and have considered only one amendment, an amendment on how this bill should apply to the Senate.

Invoking cloture at this time would not serve the civil rights interests of our country at all. In fact, to invoke cloture now would, in my view, curb our ability to closely consider the many and complex issues involved here and would seriously damage our ability to produce the best civil rights bill that we can.

We owe it to the Nation, and particularly to America's minorities and women, to produce the best civil rights bill we can.

Mr. HATCH addressed the Chair. The PRESIDING OFFICER. The

Senator from Utah. AMENDMENT NO. 2164

Mr. HATCH. Mr. President, I send an amendment to the desk, and I ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.


The Senator from Utah [Mr. HATCH] proposes an amendment numbered 2164.

Mr. HATCH. I ask unanimous consent that reading of the amendment be dispensed with.


The amendment is as follows:

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17671 Strike page 10, line 15, of the amendment,

and insert in lieu thereof the following: "jurisdiction;

"Provided that no person shall be prohibited from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".


The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Mr. President, I ask unanimous consent that I withold the remainder of my time, and allow the distinguished Senator from Missouri to speak on his own time.

I ask unanimous consent that I may then resume without it being considered a second speech under the rules.


Mr. DANFORTH. Mr. President, it was inescapable to those of us in the Chamber that immediately after the vote was announced a great cheer went on outside the Senate Chamber, presumably by those who support the civil rights bill. I must say that the Senator from Missouri does not understand the basis of the cheering or the chants of optimism.

It is clear to this Senator that under the present state of affairs the chances of enacting legislation that the President is going to sign, the chances of enacting legislation that will become law over a Presidential veto, are de minimis.

Mr. President, I was one who voted for cloture. I must say that when I voted for cloture I did so with some concern about my vote. Several months ago, after a long process of negotiations which led to the bill that is now on the floor, I took the position that after those negotiations were completed I would support the bill. I also stated to those who were promoting the legislation that I would vote for cloture. I have fulfilled that obligation. I did so out of a sense of duty. But I do not believe what we have just done furthers the cause of enacting this bill into law.

I do not agree with the strategy that has been adopted by the majority leader of filing cloture motions, particularly in the face of a position that has been taken by those on this side of the aisle that they are prepared to go forward with a bill, even under a time agreement. It is clear that there is no desire on the Republican side to filibuster a bill to death. But there are differences of opinion on the legislation.

I am satisfied with the bill as is. I will vote for the bill as is. But, Mr. President, this bill is not going to become law unless the President agrees with it. It is clear from the vote that we have just had, 62 votes for clo-

ture, that some of those votes were grudgingly squeezed out in the last seconds.

This bill is not going to become law without the President agreeing to it. Therefore, for the last week or more. hours on end, three Senators have done their best to try to get some kind of an agreement between Senator KENNEDY and John Sununu that the President will agree to. Hours, days we have spent trying to do that, Senator SPECTER, Senator JEFFORDS, and I.

Let me tell the President of the Senate how close we came. Last Thursday morning, there was a meeting between Senator KENNEDY and Governor Sununu in the White House. The subject of the meeting was the business necessity language, the most controversial, difficult part of this bill.

Governor Sununu and Senator KENNEDY agreed verbatim on the language to be included in the business necessity part of the bill. It was not just an agreement in principal, it was an agreement verbatim, set down in writing.

Was it popular with the Republican Senators? No. Was it popular with some in the civil rights community? No. But they made a deal, and they set it down in writing.

Then the position that was taken by Governor Sununu was, well, before we absolutely sew that up, let us tie down the second big controversial part of this bill, the so-called black box language, about the degree of specificity that has to be put in place in employees specifying business practices. There, too, the negotiations were going forward.

Yesterday I spoke with Senator KENNEDY, and he told me the specific phrase of the proposal of Governor Sununu that he did not agree with. I called up Boyden Gray at the White House and I said, "I think if you will agree to take this one phrase out, you will have a deal, involving the two most controversial sections of the bill." And he said on the phone, "Well, I will recommend taking it out."

I do not know what happened subsequently, but I know that we were on the very brink of an agreement on the key provisions of the bill that I am convinced would lead to a Presidential signature, and I am convinced that the bill before us will lead to a Presidential veto.

Maybe the deal that was made does not make anybody happy, but it does deal with the Wards Cove issue, and I thought that both parties should have taken it. I think we are now in the business of spinning our wheels. I think we are going to waste days of time on the floor of the Senate. Everybody talks about the business of the Senate. Why do we not get on with the business of the Senate? Why are people here on Fridays? We should not be here late at night, and so on

and so forth about the business of the Senate.

Well, I say to the Senate that we are wasting more time by this foolish vote on cloture than we would by most of the other tactics that go on in this place. I am sick about it. But, Mr. President, we are going nowhere. The civil rights community has not won a victory by the vote we just had. I voted with them, because I was honor bound to do it, but they have just shot this bill down the tube.

Mr. DOLE addressed the Chair. The PRESIDING OFFICER. The

Republican leader is recognized. Mr. DOLE. Mr. President, I agree in

part with the statement by the Senator from Missouri, and I want to repeat for the record that we are entering a new era of leadership here. We just filed cloture before there has been any debate or amendments offered and shoved it down the throats of the minority, and it is going to get tough around here.

There was no need for this vote today. We withheld offering amendments because we were told we are going to negotiate this, do not off er any amendments. I congratulate the majority leader. I had eight desertions on this side. Maybe they ought to get a new leader. Maybe I should not be the leader. If we are going to have this kind of operation on every bill that comes up, file cloture and get cloture and forget about it, we are going to have a different Senate to deal with on this side of the aisle.

If there had not been good faith negotiations on this side in my office and offices all around the Capitol and in the White House, I would say that is one thing. But to have this rammed down our throats because it did not please the Senator from Massachusetts-I did not know he spoke for everybody. Apparently, he speaks for everybody on that side.

It seems to me that we are going to be in for a long, hot summer. I have only been around here 20-some years. I thought we used cloture when people up here are trying to withhold any action on a bill, or filibustering and talking, somehow trying to impede the progress of the majority.

There was not any such effort on this bill. There was not an amendment offered, except one to take care of Senators if they got sued. We took care of ourselves first, and that was it.

I do not know what is going to happen in the next few days. We are going to take what little time we have. The Senator from Utah indicated this morning he was willing to enter into a time agreement. I am convinced that the other side could care less about this bill. They want a political issue. They may get a political issue. They may get a bill, I do not know. We only have 38 votes on cloture. I do not

17672 CONGRESSIONAL RECORD-SENATE July 17, 1990 know how we are going to get 34 on a veto. I do not see anybody on our side that is going to cnange his mind. I would say to the credit of the eight, they did not like the process, the procedure, did not like it crammed down our throats.

We try to get along in the Senate. We have gone the extra mile, stayed the extra hour, in an effort to accommodate the majority. But this is going to end. If we are going to be treated like a bunch of bums on this side of the aisle, say so. There will not be any more time agreements or any agreement at all on anything, until we have some understanding that we are going to run this place in a civil manner, and not have them try to shove it down our throats because they have the votes and they can intimidate everybody but one Democrat to vote with them, when there has been no effort on this side or that side, not a single amendment has been offered, and we have been told not to offer amendments.

I made a statement yesterday that there was no reason for cloture being filed, that there has not been an amendment offered, and that everybody is for civil rights, and nobody disagreed. Did anybody stand up and say I was wrong? So I suggest that maybe we ought to elect another leader on the Republican side. If we are going to let the Democrats run the Senate and we are going to throw eight or nine votes in to help, that is good enough for me. I do not want any part of it.

It seems to me there comes a time that you have to understand what is fairness and what is not fairness, and this is not fairness. We have had members on this side who have been part of the negotiations every day, including the Senator from Missouri, the Senator from Vermont, and the Senator from Pennsylvania, Senator SPECTER.

We have had people agree to language and then renege on the language on the other side. How can you work out a deal? My view is we would have had a civil rights bill in 24 or 48 hours except some of our Republicans think they know better than the leadership; they are going to decide for themselves what we do around here.

Maybe they are right, and maybe 37 of us are wrong and 8 are right. But it seems to me in this case where there has been absolutely no debate, not a single amendment, and nothing but good will on both sides, maybe I have been fooled; that it was just an effort to move the calendar along, get rid of this bill, get up another bill, file cloture on the farm bill.

Why do we not file cloture on everything and have one vote, a voice vote, and pass it all, and get it out of here? Why do we not pass this bill on a voice vote right now if that will help somebody's calendar, take it up and pass it

up on a voice vote, as bad as it is, without any debate? We have not had debate yet. Now we are under a cloture gag rule under certain limits on what amendments we can offer.

So I hope this is not a precursor of what is going to be down the line, and I hope some of the members on that side have looked at the bill. If they are for quotas, apparently they are all but one, they are going to get quotas.

This is the game. This is a political game. You can hear the thunder or the roar out in the hall, after the score, after the touchdown, after the victory. Forget about the bill. Forget about working it out with those who have a different view, forget about those who are opposed to quotas in the workplace, shove it down their throats.

Maybe the President will veto it. Try to get a political victory. If that is what they want, they can have it.

Some of us are concerned about civil rights and some of us have been concerned about civil rights for a long, long time and have been voting that way, not just talking that way. When we engage in negotiations in a goodfaith effort to get some resolution, we ought to have an opportunity to do it. We did not have the opportunity in this case, and I know the majority leader has to keep the place moving. But in this case it was totally unfair to try to put our party on record as against civil rights with a cloture vote, and it is going to make things a lot tougher.

The PRESIDING OFFICER. The majority leader is recognized.

Mr. MITCHELL. Mr. President, I listened with interest to the statements of my friend and colleague, the distinguished Republican leader, and my friend and colleague, the distinguished Senator from Missouri.

I would like to make three comments-responding to some of the assertions made by both.

First, my friend from Missouri said that he did not understand the decision of the majority leader to proceed to cloture when the Republicans had offered to complete action on this bill by a time certain.

That is the first time I have heard that the Republicans had offered to complete action by a time certain. The Senator from Missouri is, with aJl due respect, mistaken. No such offer was made, and I would have been anxious to entertain such a proposal. None was forthcoming.

So the premise of his criticism is factually incorrect. Had there been such an offer, I would have it with the distinguished Senator from Massachusetts, and if it was, I was not only prepared but willing and eager to enter into such an agreement.

Second, we have heard a lot here in the last few moments 1about cloture. Suggestion has been made, criticism of

the use of cloture as a way to move legislation forward in the Senate.

I have not had much time to do this research, but a very brief summary indicates that the rate at which cloture is being used in the period since I became majority leader is less than it was used at any time during this decade. During the 6 years in which the Republicans controlled the Senate, 4 under the majority leadership of Senator Baker, 2 under the majority leadership of Senator DOLE, 75 cloture motions were filed. In the nearly 2 years that I have been majority leader, 22 cloture motions have been filed, a rate less than that employed under Republican control of the Senate.

And I searched the record-and I will stand corrected-but I do not find any record of the distinguished Senator from Missouri standing up and protesting the use of cloture during the time when Republicans were in the majority of the Senate. If he did so, I welcome his standing now and pointing to that in the RECORD.

Is there a double standard? Is cloture a tactic that is--

Mr. DOLE. Mr. President, if the Senator will yield, if you want someone to stand, I will stand and say we cooperated with the majority. We could not get the cooperation when we were in the majority. We had no choice. The majority leader knows we cooperated with him on a number of things where cloture would have been filed.

Mr. MITCHELL. I will get to the substantive cooperation in just a moment, and I thank my colleague for his commenting.

I will just say, Is there a double standard? Is cloture an appropriate tactic when Republicans are in the majority but inappropriate when Democrats are in the majority?

Mr. DANFORTH. Mr. President, the Senator from Missouri was making a very simple point, and I think the majority leader knows that. The simple point that I was making is that for days on end, hour upon hour, on each day three Senators have been trying to work out an agreement on this bill. The three Senators have been Senators SPECTER, JEFFORDS, and myself and an agreement was made verbatim, verbatim with respect to the most controversial single issue in the bill. An agreement was made-I cannot say it was in agreement-but the administration yesterday-at least their legal counsel stated that the one phrase in the proposal for the so-called black box provision that was objected to by Senator KENNEDY would be deleted or at least the legal counsel recommended that it would be deleted. We were within a millimeter of working out the most difficult provisions in this bill, and it is a bill that in the opinion of this Senator-and all you have to do is

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17673 look at the numbers in the last votewill not be passed over a Presidential veto. The President is going to veto what we have before us. I do not mind what we have before us. I am a cosponsor of it. But the President is going to veto it.

I do not stand around telling the majority leader how to run the Senate but I, for the life of me, cannot understand how we have just furthered the cause of getting this bill enacted into law. I think we have set in motion a process where our flexibility is severely limited. I think that we are now going down a track which is leading to nowhere and that we are wasting the Senate's time in the name of saving the Senate time.

I am not here to debate about a numbers vote, about what leaders filed cloture motions, how many times. I could care less. But I do care about this legislation. I have invested an enormous amount of time in this legislation, and we were so close. I want to make the point that in the opinion of this Senator it is not the administration that has been wiggling out of deals around here. That is the only point I want to make.

Mr. MITCHELL. I thank the Senator and I appreciate the fact that he could not care less but I could care less. I could care a lot.

When the Senator stands and suggests something wrong with this approach, I would like to know where was that indignation when Republicans employed this tactic.

Now, in just a few moments research, we have found at least five occasions under Republican leadership when a cloture motion was filed at the time the bill was called up and the cloture vote occurred 2 days thereafter. And we have been unable to find an instance in which the Senator from Missouri protested with the indignation that he has demonstrated today.

Mr. DANFORTH. Will the leader yield?

Mr. MITCHELL. I will yield when I complete my remarks.

Now what happened here? Was cloture filed on the day that the bill was called up? Indeed, it was not. On June 22, nearly a month ago, I sought to move to proceed to this bill and the distinguished Republican leader objected. On June 25, the distinguished Republican leader asked that I vitiate cloture on the motion to proceed. Republicans objected to moving to proceed to this bill which required the filing of a cloture motion, and on the request of the distinguished Republican leader I vitiated that vote.

On July 10, 3 weeks after I attempted to move to proceed to the bill, the Senate took up the bill for consideration. And as the Senator from Missouri knows, he and the Senator from Vermont and the Senator from Pennsylvania on that very day told me that

they were "this close" to an agreement and would I forbear from doing anything with respect to cloture for 24 hours. I agreed to do so at their request, not for 24 hours, but for seven times 24 hours, a full week, at which time it was represented to me that we were again that close to an agreement.

I want an agreement. I have done everything I can think of to encourage an agreement.

And with the greatest respect to my distinguished friend and colleague, the Republican leader, this is not a political game. If it were, I would not have vitiated the cloture vote on the motion to proceed. If it were, I would have filed cloture on the bill a week ago. I have done everything possible, consistent with my responsibilities, to encourage a resolution of this matter, but without success.

I hope we can reach an agreement. I believe that an agreement is within grasp and I hope that the vote we have just had today will encourage that result.

I respect the different point of view of the Senator from Missouri. But I repeat to him and to the Members of the Senate, it is not correct that Republicans offered to me a time certain for passage of this bill and that I rejected the offer and insisted on cloture. And I repeat again, had such an off er been made-as the Senator from Missouri has just asserted it was made, incorrectly-I would have been more than willing to accept that, as my intention and my hope and my desire is to gain enactment of a bill that will become law. That is what I still hope happens.

I regret the comments that have been made that may in some event make this a more difficult result to achieve. I hope that is not the case.

Finally, let me comment with respect to the distinguished Republican leader's comments on fairness.

If there is one thing I have tried to do since I became majority leader it is to establish a sense of fairness and comity in the Senate, to attempt to treat every Senator equally, to attempt to apply the rules evenly and to attempt to move the business of the Senate forward in a way that, recognizing the inevitable differences among us on certain issues, would permit us to continue to operate and act in good faith and cooperation whenever and wherever possible.

I thought I was succeeding in that effort. Evidently, the distinguished Republican leader sees it differently. If that is the case, then I can only say that I will continue to do my best to operate in a fair and equitable manner.

I believe I have provided the distinguished Republican leader with a great deal of notice on every action we intended to take and have sought to elicit full cooperation. If, in this one

instance, there is a contrary feeling, I regret that. But for the reasons I have just stated, because of the time consumed in this matter, because of the necessity to proceed in what I hope is a manner that will bring about legislation that becomes law, and for all the previous reasons, I felt it important to proceed as indicated here.

I hope that we will be able to get a bill passed and I hope that we will have further cooperation. If that is not to be forthcoming, that is of course a decision to be made by the Republican leader on behalf of his colleagues and we will obviously have to deal with it as each matter arises. In any event, it will not in any way deflect me from the approach which I have adopted or cause me to change that approach, which is attempting to proceed in the manner best calculated to accomplish the public's business in the most fair and responsible way, accommodating the interests of all Senators and treating all Senators, Democrat and Republican, alike.

Now if I might comment finally on the distinguished Republican leader's offer to voice vote the bill right now. As far as I am concerned, I am prepared to accept that offer, and I am prepared to proceed to vote and pass the bill right now, if that is the desire of our colleagues on that side.

Mr. President, I yield the floor. Mr. DOLE. Mr. President, you may

have that opportunity before the day is out. I will keep in touch.

I think we have not really been on this bill at all. That is the point. Talking about 3 weeks. There was a motion to proceed filed. That was the week the Senator from Massachusetts was entertaining Nelson Mandela in Boston. That was the reason to indicate that cloture motion was being filed, to indicate somebody here was working on civil rights legislation. There was never any doubt about taking the bill up. But again, we thought we were working out some agreement. I would have to go back and check all the numbers, but I guess it will show that there would have been less reason for cloture because I think the record will reflect we have been most cooperative with the majority leader, because I want to be cooperative with the majority leader. And there has not been a necessity to file cloture on every bill. When you do not have cooperation from the minority, it makes it very difficult. We think we have given that kind of cooperation; sometimes, I may say, to the chagrin of many of my colleagues on this side, and disgust, I might say, in a few cases.

But I wonder, if we are so anxious to cooperate, if the Senator from Massachusetts will enter into a time agreement on the amendment just offered. It is pending. Let us look at the

17674 CONGRESSIONAL RECORD-SENATE July 17, 1990 present; have an up and down vote on the amendment just offered.

We have a lot of amendments. We think most of them are germane.

We will see if everybody wants quotas on that side. Let them vote for quotas. And let us let them vote for this trial lawyers bill. That is what it is. We will see how many votes the American trail lawyers have. I know they have a big PAC. I do not know how many votes they have. So we will bring up those amendments and we will off er those amendments and debate those amendments, also under restraint because now we do not have much time to debate the bill at all.

This Senator views this bill as the most important piece of civil rights legislation in a long, long time. So we are given 30 hours total to dispose of it. If that is fair, I hope we treat minorities better than the minority is treated on this side of the aisle.

Mr. SPECTER addressed the Chair. The PRESIDING OFFICER. The

Senator from Pennsylvania [Mr. SPECTER].

Mr. SPECTER. Mr. President, there has been an extensive discussion about the use of cloture. There has been some talk about a voice vote.

I suggest it might be appropriate to look at the substance of what we are dealing with here, what is really important to the American people.

The one comment which has been made which concerns me has been the one with respect to the comment by our distinguished leader on the Republican side about his leadership. I think all Republicans have the greatest respect for the distinguished leadership of Senator Dole as he is proceeding in the minority and as he did when he was the majority leader for 2 years.

I voted in favor of cloture because I felt committed to that position. I believe it is very important to move ahead to get a good civil rights bill.

The American people, or whoever, if anyone, is listening to this on C-SP AN II, must be wondering what goes on in the U.S. Senate when all of the exchanges, or almost all of the discussion is about who has used cloture how many times, or a facetious comment made about a voice vote and an apparently serious response: Well, let us pass it on a voice vote.

There are some of the rest of us around here who have something to say about whether there is a voice vote or whether there is not. That is not decided by a single Senator or two Senators or three Senators. As Senator DANFORTH pointed out, a great many of us have been doing a tremendous amount of work, night and day, for weeks and weeks and weeks, on this subject.

Why have we been doing the work? So there can be a Republican victory or Democratic victory? Absolutely not.

We have been on this subject because many of us feel the Supreme Court of the United States in Wards Cove reversed an 18-year-old decision in the Griggs case which should not have been reversed.

There has been a lot of talk about judicial activism in the Supreme Court nominations, many of those comments made by Justices who decry judicial activism. And yet when an issue came before them on this very important subject of civil rights, they threw it all to the winds and decided to reverse an 18-year-old unanimous Supreme Court decision which, by all rules of judicial interpretation, ought to stand because the Congress of the United States left it in place. In terms of a standard interpretation, that that was the law intended by Congress.

In Wards Cove, the Supreme Court of the United States took this important field and turned it upside down. They said the burden of proof was on the employee in a complicated business context, where, under all similar rules, the burden of proof on an affirmative defense lies with the party which has the means to do the proof, to put forward the evidence, and that is the employer. And the Supreme Court of the United States made significant changes in the standards.

That is why many of us have been working to try to change the Supreme Court decision in Wards Cove back to Griggs. My distinguished colleague from Missouri, Senator DANFORTH, and my distinguished colleague from Vermont, Senator JEFFORDS, and I and others, have been working toward that end. When Senator DANFORTH spoke, I disagreed with him only on one point and that is where he said we were within a very close distance of striking an agreement.

I think we did have an agreement. The slight difference on the black box was agreed to. And on this issue of business necessity, on all aspects there was an agreement as of last Thursday.

What is the substance of the agreement, Mr. President? How would the change in the law affect millions of Americans, both employees and employers? This is what it provided. And this is what was agreed to last Thursday, and written down.

The term required by business necessity means:

< 1) in the case of employment practices primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to successful performance of the job.

(2) in the case of other employment practices that are not primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

In deciding whether the above standards for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The court may rely on as such evidence sta-

tistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence and the Court shall give such weight, if any, to such evidence as it deems appropriate.

Under "Legislative History." This language is meant to codify the

meaning of business necessity as used in Griggs and other opinions of the Supreme Court.

That is it, Mr. President. On the merits, this clearly reinstates Griggs, a decision of the Supreme Court which had been standing for 18 years. It clearly overrules Wards Cove. It moves through a myraid of complexities where we argued about terms like "manifest relationship, demonstrable relationship, "significant relationship," and came to an agreement. Where the field had been very restrictive for employers in the past, with expert counsel from Philadelphian Mark Klugheit, we worked through the language to broaden the kinds of proofs that employers could offer in order to give a fair opportunity to meet the burden of proof which employers had in Griggs, and which employers would have after this amendment.

Mr. President, the essence of this problem is that there are many blacks, women, disabled and others who are discriminated against in America today. We passed a Civil Rights Act of 1964 which said that we should not discriminate on the basis of race, color, creed, religion, or national origin. That should be expanded to women, and also to the disabled. And then the question comes up, how do you prove it?

If intent can be proved, there is no doubt about the claim being established. But intent in the law is a very difficult thing to prove. That is what the courts and the Supreme Court in the Griggs case established what is called "disparate impact." Disparate impact is kind of a scary term; you want to run from it. What does it mean? Well, it means that if in a community you have 40 percent blacks and you have 2 percent employed, that that raises an inference of disparate impact. It does not establish the case, but it is necessary for the employer to come forward and show business necessity, something more than whim or caprice, something which is necessary.

In the Griggs case in 1971, in a unanimous opinion written by the Chief Justice of the Supreme Court, the Court established what the standards would be where there was disparate impact. It was not easy, but America got along with that rule for 18 years. There were a lot of cases and a lot of tough interpretation until Wards Cove, when the rule was turned on its head. The burden of proof was placed upon the employees. The standards of

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17675 Griggs were changed. And that is what we are trying to correct here.

Mr. President, the way the Senate functions, it is obviously vitally important that there be comity here and that the leadership be respected. But the fundamental issue today is what we are going to do about this bill. I suggest that the proceedings here today have not advanced that cause.

It is my hope that we will return to the language of last Thursday. It is not perfect language. On both sides there have been loud objections to the language. But I suggest that it would reinstate a very sensible definition and provide the best realistic opportunity for a definition of what ought to be done to protect the civil rights of all involved. But, if we proceed as we are today, Mr. President, we are not going to have a bill. We are going to have a lot of wrangling. We may not even have a Senate.

We ought to get back to basics, and we ought to get back to the substance of what we are sent here to do, and that is to craft legislation which meets the public policy needs of the United States. I think everybody agrees that we want civil rights. Everybody agrees we do not want quotas, and virtually everybody agrees that we do not want Wards Cove and that we do want Griggs. The best way to get there is to promptly adopt this language.


The PRESIDING OFFICER. The Senator from Massachusetts [Mr. KENNEDY].

Mr. KENNEDY. Mr. President, I, first of all, have drawn a different conclusion on the nature of the discussions which have developed over a period of many, many weeks. These discussions have taken place both inside the Senate, among those who have supported the legislation and those who have been opposed to it, and also with the President of the United States.

I stated, for those of us who supported this legislation from the beginning, that we wanted the President's support. This legislation is more meaningful to the American people with the President's support. President Bush has had a record in support of civil rights in the past, and even as we meet here at this time we would welcome his embracing this legislation. That, hopefully, will continue to be the position of all of those who have been involved, Democrat and Republican alike, in the shaping of the legislation.

I just want to indicate first that in the discussions that have taken place-discussions among supporters of the legislation; representatives of the White House, and representatives from the Justice Department-I do not assume anything but good faith all the way through these negotiations.

Mr. President, I will take exception to some of the comments that have been made with regard to fairness in this body. Quite frankly, I wish we could see that kind of indignation about the unfairness that is taking place in job discrimination all over this country against women and against minorities. Why do we not get as agitated about that kind of indignity, about that kind of bias, about that kind of prejudice? We are talking about racism in the job place. That is what this is about. When I hear some of our colleagues talking about "is this fair, is this fair, are we really being fair on this?" Someone ought to speak out about the indignity and the injustice and the unfairness that is taking place and that has taken place for far too long. So I, quite frankly, find it difficult to be enormously sympathetic to that particular point.

Mr. President, I have to take exception with my friend and a person who has been very much involved in the shaping of this legislation, Senator DANFORTH-I wish he were on the floor; I had hoped he would be-about the state of exchange of papers and whether or not there was an agreement. I have had the opportunity, as others have, to work with different members of the administration and my colleagues. I have never stated publicly or privately that there had been an agreement or a deal that had been reached. I thought President Bush stated it quite accurately last Friday. He said "we are close and we are continuing to try." He certainly was aware of whatever was put down on the paper on Thursday and what had been basically and tentatively agreed to by some during the course of those discussions. So the President never claimed that there had been a deal, that the situation was locked up, nor did I nor did most of the other Members who had been involved. Some may have, and they misspoke, and now we are in a situation where we have to move forward.

Mr. President, I will include in the RECORD at the appropriate place-it has been read in there by the Senator from Pennsylvania-language which was discussed and written out which could have formed the basis for an agreement if we had the meeting of the minds which I will call exhibit A. Unfortunately we did not. And then there was more discussion, and I will include in the RECORD the particular language which was written out during the course of that particular exchange, which I believed had been accepted by the White House, Mr. President, which I will call exhibit B.

But I will also include in the RECORD the counteroffer that Mr. Boyden Gray sent late Thursday night to regarding the second provision, the group of practices provision, which I will call exhibit C. That was not the

agreement which I believed to exist on the group practices case; In fact, it shifted the burden of proof, which was a key element in this whole Wards Cove decision; the new language returned the burden of proof back to the plaintiff. They were saying that this was an agreement? This was a deal?

Mr. President, that is why I felt it was important that we have clarifications. That is why I wanted to ask my friend from Missouri about his understanding of those particular words. As the Senator from Missouri understands, when legislation was initially introduced, we talked about essential to job performance. Points were raised that this was too strict, so we went to substantial. This is the language: In the case of employment practices involving selection, such as hiring, transfer, promotion, and referral, the practice must bear a substantial and demonstrable relationship to effective job performance. This language was suggested by the Senator from Missouri. Lay that alongside what was proposed, the typed out language proposed last Thursday.

The point that has to be examined, Mr. President, is what does the proposal of the administration apply to? We could not get an agreement on that. Does it apply to selection, such as hiring and firing? I ask my good friend from Pennsylvania, does he understand that to be the case? We could not get a statement by the administration that it would apply to this, and barring that, Mr. President, there can be no agreement; see exhibit D. There can be no agreement because that is the essential aspect of the Griggs case.

Mr. SPECTER. If the Senator is asking me a question, I will be glad to respond.

Mr. KENNEDY. On his own time, if he would please. We have limited time.

Mr. SPECTER. I am sorry. I thought the Senator was asking me a question.

Mr. KENNEDY. If the Senator cares to respond on his own time.

That is the key element, Mr. President. As we know around this institution, there is a time to talk and a time to vote. We are at that point now where the Senate ought to express itself. As to the fundamental difference, we cannot get by it. You either intend that particular language to apply to selection-hiring, firing, promotion, and so forth-or you do not. And if you do mean it, for those particular provisions, I think we are very, very far down the road. But if you cannot make a clear decision on this, there is no basis for agreement and we might as well get about the business of calling the roll.

So, Mr. President, I must say that, as I have before, in spite of the statements that have been made here, I have believed that the President wants

17676 CONGRESSIONAL RECORD-SENATE July 17, 1990 to work this through. Those of us who are the sponsors want to work it through, but we will not compromise on our principles. We will not compromise on them. We will work and try to find the areas where we can find agreement, but we are not going to compromise on our principles. If that is what is being asked and without making that declaration, Mr. President, about what was intended in terms of selection and returning to that concept, we are not going to compromise. There may be those who will say there will not be a bill. Then so be it. But we are going to carry this forward.

I just say, finally, Mr. President, as I mentioned earlier, substantial progress was made on a wide range of other areas. I will not take this time to outline those areas now.

Mr. President, I ask unanimous consent, as my colleague stated earlier, that my response not be counted as a speech, as my colleague from Utah did with his earlier request.

The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

Mr. KENNEDY. Mr. President, I ask unanimous consent to print in the RECORD the material I mentioned earlier.


EXHIBIT A The term required by business necessity

means: < 1) in the case of employment practices

primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to successful performance of the job.

(2) in the case of other employment practices that are not primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

In deciding whether the above standards for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The court may rely on as such evidence statistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence and the court shall give such weight, if any, to such evidence as it deems appropriate.

LEGISLATIVE HISTORY

There would also be in the statute the following language, "This language is meant to codify the meaning of business necessity as used in Griggs and other opinions of the Supreme Court."

EXHIBITB

Strike subsection 703(k)(l)(B) and insert at the end of <A> the following: "Provided, however, That where a group of interrelated employment practices produce a single employment decision and the elements of the decision are not capable of separation for analysis, the group of employment practices shall be treated as a single employment

practice and may be challenged as such and defended as such.".

Legislative history: [Agreement that plaintiff can plead a group of employment practices, and the determination of whether a group of employment practices in fact is not capable of separation for analysis shall be made after discovery.]

EXHIBIT C

THE WHITE HOUSE, Washington.

FACSIMILE TRANSMITTAL SHEET

To: Jeff Blattner. Fax number: 224-2417. From: C. Boyden Gray. Comments: If this is acceptable, we will be

happy to address with you the burden issue on business necessity.

PARTICULARITY

In sec. 3, delete subsection (n), p. 2, line 24 through p. 3, line 4 and reletter.

Amend section 4 of Kennedy-Hawkins to provide as follows:

Section 703 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-2) is amended by adding at the end thereof the following new subsection:

(k) PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT CASES.-

An unlawful employment practice based on disparate impact is established under this section when a complaining party demonstrates < 1) that an employment practice results in disparate impact on the basis of race, color, religion, sex, or national origin, and <2> if the respondent shows that such practice is required by business necessity, the complaining party demonstrates that such practice is not required by business necessity: Provided, however, That if the elements of a decision-making process are demonstrated to be not capable of separation for analysis, they may be analyzed as one employment practice, just as where the criteria arP distinct and separate each must be identified with particularity and with its causation established.

LEGISLATIVE HISTORY

Under this Act, a complaining party makes out a prima facie case of disparate impact when he or she identifies a particular employment practice and demonstrates that the practice has caused disparate impact because of race, color, religion, sex, or national origin. At that point, the burden of production is on the respondent to show that the practice is required by business necessity. If the respondent makes that showing, the complaining party must then demonstrate that the practice is not required by business necessity.

In identifying the particular employment practice alleged to cause disparate impact, the plaintiff is not required to do the impossible in breaking down an employer's practices to the greatest conceivable degree. Courts will be permitted to hold, for example, that vesting complete hiring discretion in an individual guided only by unknown subjective standards constitutes a single particular employment practice susceptible to challenge.

It is therefore the specific intention of the proponents of this Act to reaffirm the sort of analysis employed on this issue in Sledge v. J.P. Stevens & Co., 52 EPD para. 39,537 <E.D.N.C. Nov. 30, 1989). The court alluded to the difficulty of "delving into the workings of an employment decisionmaker's mind" and noted that the defendant's personnel officers reported having no idea of the basis on which they made their employ-

ment decisions. The court held that: "the identification by the plaintiffs of the uncontrolled, subjective discretion of defendant's employing officials as the source of the discrimination shown by plaintiff's statistics sufficed to satisfy the causation requirements of Wards Cove." This Act contemplates that the use of such uncontrolled and unexplained discretion is properly treated as one employment practice and need not be divided by the plaintiff into discrete subparts.

If the elements of a decision-making process are demonstrated to be not capable of separation for analysis, therefore, they may be analyzed as one employment practice, just as where the criteria are distinct and separate each must be identified with particularity and with its causation established. See letter of Charles Fried to Senator Edward M. Kennedy, March 21, 1990 at 4 n.2 <Hearing Record at ).

It should also be noted that assuming compliance with all other Title VII procedures, if a plaintiff can make a reasonable good faith allegation that the elements of a decision-making process are not capable of separation for analysis, as described above, he or she may file a complaint and commence discovery on that basis, although this does not affect the plaintiff's burden in making out his or her prima facie case.

EXHIBITD

JULY 12, 1990 LANGUAGE WITH CHANGES

The term required by business necessity means:

< 1) in the case of employment practices primarily involving/related to [choose one] selection, the practice or group practices must bear a significant relationship to successful performance of the job.

(2) in the case of othel'. employment practices not described in subsection (1), the practice or group practices must bear a significant relationship to a significant business objective of the employer.

In deciding whether the above standards for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The court may receive such evidence as statistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence and the court shall give such weight, if any, to such evidence as is appropriate.

There would also be in the statute the following language, "This language is meant to codify the meaning of business necessity as used in Griggs and to overrule Wards Cove.

Strike subsection 703Ck)(l)(B) and insert at the end of (A) the following: "Provided, however, That if the elements of a decisionmaking process are not capable of separation for analysis, they may be analyzed as one employment practice, just as where the criteria are distinct and separate each must be identified with particularity.".

Legislative history: [Agreement that plaintiff can plead a group of employment practices, and the determination of whether a group of employment practices in fact is not capable of separation for analysis shall be made after discovery .l

The PRESIDING OFFICER. The Senator from Vermont [Mr. JEFFORDS] is recognized.

Mr. JEFFORDS. Mr. President, I would like to direct some questions perhaps, or at least try to get a feel of

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17677 where we go from here. The way things are structured now, it seems that we will be unable to debate the way we ought to debate some of the critical issues, and yet it appears to me that the 30 hours that is available should be sufficient to take care of these matters.

As has been discussed somewhat at length, there are four of five critical issues here which need to be fully debated. They involve the language of the Griggs case as has been pointed out, the so-called black box language, which is a controversial aspect as to matters of burden of proof, matters regarding the appropriate language, and the very critical question of damages.

So I would ask perhaps the floor leaders as to whether or not it would be conceivable to attempt to get an agreement to split the hours evenly between each side, 15 hours to a side, and then to work out with each side as to what amendments would be considered during a majority of that time, perhaps with a certain length of time for each of the critical issues, and then leaving the balance of time for other amendments.

It seems to me if we do that then we leave ourselves open to possible future negotiations as well as adequate time to be able to discuss the more controversial issues. I think there has been a tremendous amount of good faith which has been demonstrated over the course of the last few weeks and months as people have worked very hard to try to come to reconciliation of very difficult issues.

It seems to me we are very close on some of these issues, but it also seems to me if we go under the normal process that comes after cloture, the difficulty of proceeding and reconciling those issues in a meaningful way will be next to impossible.

So I would inquire of the floor leaders if they have any comments on the ability for us to be able to do that. I recognize it is a unanimous-consent type of situation, but I hope we would find some way to approach this bill in a more constructive way that would take care of these very difficult issues. I am happy to yield to the Senator from Massachusetts.

Mr. KENNEDY. That is, I think, a very satisfactory and useful suggestion. I would react positively to it for the reason outlined, to give more time on matters which are of particular concern to different parties. We could give notification to the Members perhaps of the order of amendments, there would be a better exchange and notice.

It seems to me that would be a desirable way to proceed. I will mention that to the majority leader. I do not know what the reaction would be of the minority floor manager. But I will pass that on to the leadership. As far

as I am concerned, I think that is a sensible procedure.

If we could get agreement of the 30 hours divided equally and then decide how much time the minority wanted on different amendments, we would do the same and announce the time and the order that they would be considered, I think this would probably be the more sensible way to proceed. It would take unanimous consent, and I just do not know, about that but I will pass that on to the leader.

Mr. JEFFORDS. I appreciate the words of the Senator. I realize it is premature to make such an offer. I hate to see all the good which has been expressed here, and the fact that we are so close on concepts, that we want to go back to Griggs, we agree on shifting the burden of proof, we do not want a quota bill, we want damages which are reasonable and equitable-those are the critical goals we are trying to accomplish and everyone agrees. I hope we can do it in a constructive way and we can reach unanimous consent to agree to those issues. I yield the floor.

The PRESIDNG OFFICER. The Senator from Utah [Mr. HATCH] is recognized.

Mr. HATCH. I have to say it is wonderful to stand up and maybe talk about an amendment I support. I have been waiting here for 3 weeks. I have been ready with this amendment from that time forward. I understand that the distinguished Senator from Massachusetts is going to file a second degree to my amendment and we will debate it. But, I ask the distinguished Senator from Massachusetts, is it all right for us to enter into a time agreement on my amendment and a time agreement on his? I would say 5 minute per side.

Mr. KENNEDY. Five minutes. Mr. HATCH. I planned on taking 4

hours with this amendment because that is how long it would take to really explain it, but it seems to me that all I can do, if I want to responsibly use my hour, is to take maybe 5 minutes or so. Is that all right?

Mr. KENNEDY. That is. Mr. HATCH. I ask unanimous con

sent that we have 10 minutes equally divided on my amendment and to minutes equally divided on the seconddegree amendment of the distinguished Senator from Massachusetts, which will be filed after I conclude my remarks.

The PRESIDING OFFICER. Is there objection? Hearing none, the unanimous consent request by the Senator from Utah [Mr. HATCH] is agreed to.

Mr. HATCH. Mr. President, this amendment tries to correct the section of the bill pertaining to Martin versus Wilks. That particular case basically says that certain people do not have a right to their day in court. My amend-

ment assures persons the right to challenge consent decrees based on denial of equal protection of the laws.

Section 6 of this bill severely restricts the right of nonparties to their own day in court to challenge litigated or consent judgments or orders. It contains a number of narrow exceptions. For example, it does not prevent challenges to such a judgment on the ground that the judgment was obtained through fraud or collusion or that it is transparently invalid.

This amendment adds another exception. The amendment assures that if someone seeks to challenge a consent decree or litigated judgment on the ground that it denies him or her equal protection of the laws, section 6 will not operate to deny the person a day in court. If they were not a party to the earlier case giving rise to the consent decree and are otherwise entitled to have their own full day in court, section 6 will not ban them under my amendment.

The right to equal protection of the laws is fundamental to the Constitution, and Congress should not seek to constrict that right to go to court and assert claims of denials of such a right.

Indeed, the bill itself allows challenges to consent decrees alleging that the consent decree is transparently invalid. Then how can we deny a right to challenge the decree on the basis that it operates to deny someone equal protection of the laws or violates a Federal civil rights law? If the consent decree or litigated judgment is lawful, it will be upheld. If it is unlawful-if it denies equal protection of the laws or denies a Federal civil rights statutethen a person victimized by such a decree should get relief.

We are not just talking legal obstructions here. One of the most eloquent witnesses we had before the committee was James W. Henson. He was a white firefighter from Birmingham, AL. He was chief of the fire department of his own little town, moved into Birmingham, signed on with the Birmingham Fire Department, went 2 years to college for firefighting experience, took other specialized courses, then took an exam where six positions were open for supervisor. He came in sixth. And did he get the job? No.

He asked the supervisor, why did I not get the job since I had all of this experience; I came in sixth on the exam; and there were six positions open? And his manager said you did not get it because you are white, and we jumped a black, who was 85th on the exam with none of the experience, over you to be supervisor.

I do not think anybody would say that is a fair way to proceed.

This amendment would correct that problem, that if a person literally has their equal protection rights violated,

17678 CONGRESSIONAL RECORD-SENATE July 17, 1990 we would protect their right to a day in court to determine that violation.

Now, the Senator from Massachusetts is going to add an amendment to mine which would authorize the denial to any person of the due process of the law required by the U.S. Constitution. I will talk about that in my second 5 minutes. Do I have any time left in the first 5 minutes?

The PRESIDING OFFICER (Ms. MIKULSKI). The Senator has 1 minute 40 seconds.

Mr. HATCH. Let me take that minute and 40 seconds so everybody understands. What his amendment will do will only protect these firefighters, and they may not always be white. They may be minorities as well. But, regardless, it will protect them only if the Constitution requires their rights to be protected. As we all know, that is the question that is left up in the air because the Constitution does not require extension of these civil rights that we have been talking about today. It requires many civil rights but not all of the rights that we are granting in this bill today.

So all I want to do is not allow anybody's rights to be taken away from them. Senator KENNEDY'S amendment will take away certain rights from certain people who challenge consent decrees, because frankly it does not protect their rights to a day in court. His amendment does not solve the problem. My amendment does. My amendment has definiteness to it and it makes sense. I hope that we can vote down the Kennedy amendment, and vote up my amendment.

With that, I reserve the remainder of my time.

Mr. KENNEDY. Madam President, in just a few moments, at the expiration of the time, on the Hatch amendment, I will send an amendment to the desk as a second degree amendment to the Hatch amendment.

Basically, there are existing procedures to review various consent decrees. If we look over the period of recent history, the last 15 or 20 years, in a number of different communities across the country that were suffering from the stains of discrimination, consent decrees were considered to set paths to eliminate discrimination.

These consent decrees in many instances were challenged, and subjected to reviews by the courts. It became very clear, Madam President, that when there had been a final ajudication on the consent decree, with fair notice given to those that would be or could be affected, the law prohibited the reopening of those consent decrees, I think very wisely.

There should be some degree of predictability, some degree of certainty, and obviously some degree of notification. Those consent decrees, when they are initially adopted, should be the subject of review and of challenge.

But after review, and after challenge are we going to continue to permit the reopening and reopening and reopening of these consent decrees?

We heard just a short time ago by some of those who are opposed to this legislation saying this is a lawyer's delight. Well, if we accept the Hatch amendment without the amendment of the second degree, it will be a lawyer's delight. We can see many communities, small communities, small towns, and cities which have moved on a path toward eliminating discrimination being subject to millions and millions and millions of dollars of lawsuits. That is the case in Birmingham, AL. Mayor Arrington gave some of the most moving and compelling testimony about the burden of such lawsuits to the taxpayers of that community.

So at the appropriate time we want to ensure that when there is a legitimate interest that has been violatedindividual rights that have been violated-in certain circumstances we may preserve the possibility of opening up consent decrees.

The Supreme Court has indicated the type of notice that ought to be available when those decrees are put into effect. We want such notice, and our bill provides procedures so that individuals may be notified about those particular events.

But ultimately there has to be finality, or else we are going to see challenges and rechallenges of these decrees. That degree of uncertainty will adversely affect a work force and promote instability.

The amendment that I will off er in the second degree will ensure adequacy of notice to all of those that should be notified.

Madam President, how much time do I have remaining?

The PRESIDING OFFICER. One minute and 10 seconds.

Mr. KENNEDY. I may yield that and be prepared to move to put in the second degree.

Mr. HATCH. Let us both reserve the remainder of our time.

Mr. KENNEDY. We will reserve the remainder of our time, and I ask unanimous consent that it be in order to consider the amendment in the second degree.


AMENDMENT NO. 2270

<Purpose: To prohibit the denial to any person of the due process of law required by the U.S. Constitution) Mr. KENNEDY. Madam President, I

send an amendment to the desk and ask for its immediate consideration.



The Senator from Massachusetts CMr. KENNEDY] proposes an amendment No. 2270 to amendment No. 2164.

Mr. KENNEDY. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.


The amendment is as follows: Strike out the first word of the amend

ment and all that follows and insert in lieu thereof the following:

"At the appropriate place, insert the following:


"(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-


"(i) actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and

"(ii) a reasonable opportunity to present objections to such judgment or order:

"(B) by a person with respect to whom the requirements of subparagraph <A> are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or

"(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons. A determination under subparagraph <C> shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.


"<A > alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which they intervened;

"CB) apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal government;

"(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

CD) authorize or permit the denial to any person of the due process of law required by the United States Constitution.

"(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17679 < 1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.".

Mr. HATCH. Madam President, I ask for the yeas and nays on the Hatch amendment.

The PRESIDING OFFICER. Will the Senator withhold for clarification from the Chair? Does the Senator seek the yeas and nays on the first-degree amendment or the second-degree amendment?

Mr. HATCH. The first-degree amendment.

The PRESIDING OFFICER. Is there a sufficient second for the yeas and nays? There is a sufficient second.

The yeas and nays were ordered. Mr. HATCH. Madam President, I

ask for the yeas and nays on the second-degree amendment as well.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered. Mr. KENNEDY addressed the Chair. The PRESIDING OFFICER. The

Senator from Massachusetts. Mr. KENNEDY. Madam President,

S. 2104 ensures every person a constitutional, adequate opportunity to challenge litigated or consent judgment or order. At the same time it ensures that there will be some limit, some bar against endless challenge and endless litigation.

We heard very compelling testimony, as I mentioned, from the mayor of Birmingham, Richard Arrington, about the division in his community, about the 9 years of litigation over the decree. The Senator from Utah says he wants to give every person a day in court to protect his or her right to equal protection of the law. Our bill does that. The Hatch amendment, however, provides for more than their day in court, and more than one bite at the apple.

So there will be no doubt regarding our commitment to protecting the due process rights of all persons, however, I have offered the second-degree amendment, and we ask for its consideration.

The second-degree amendment would allow a person to challenge on equal protection grounds a court decree if that person's previous opportunity to challenge the decree was not consistent with due process.

Therefore, if the individual is able to demonstrate that he or she was being denied due process at the consideration of the consent decree, that individual would have an opportunity under this particular amendment.

It is ironic that the Senator from Utah would seek to prolong employment discrimination endlessly when in the context of our recent habeas corpus debate he argued for the one-

bite-at-the-apple principle in the death penalty litigation. I find that to be somewhat perplexing. When it comes to the death penalty and your life is at stake, you get one crack at it. But if it comes to the questions of employment or promotion, you can challenge and challenge and challenge.

Madam President, what we are attempting to do is require the type of notice which is essential for due process, and which has been upheld by the Supreme Court of the United States. If the notice does not meet the test, a court may permit the opening of the consent decree-but if it can meet that test, then so be it. The provision of the Kennedy-Jeffords substitute regarding the consent decree is fully constitutional. It does not deny anyone due process.

I ask unanimous consent that an opinion letter from the law firm of Arnold and Porter on this subject be included in the RECORD. The letter concludes that our bill protects the due process rights of persons who may seek to challenge a title VII consent decree, and it is constitutional.

I withhold the remainder of my time.


ARNOLD & PORTER, Washington, DC, July 11, 1990.

Re: Proposed Substitute Language for Sec-tion 6 of S. 2104.

Senator EDWARD M. KENNEDY, U.S. Senate, Washington, DC.

DEAR SENATOR KENNEDY: We have received a copy of the language of Section 6 of your proposed substitute for S. 2104, addressing Martin v. Wilks.I At your request, we have reviewed the proposed language in regard to the constitutional requirements of due process and the standards for intervention under Rule 24 of the Federal Rules of Civil Procedure. The substitute language of S. 2104, together with the intervention rights established by Rule 24, adequately protects the due process rights of persons who may seek to challenge a Title VII consent decree and, in our opinion, Section 6 of S. 2104 is constitutional.

BACKGROUND Section 6 of S. 2104 would bar certain col

lateral attacks on employment discrimination consent decrees. As originally reported by the Senate Labor and Human Resources Committee on April 4, 1990, S. 2104 provided protection for the due process rights of non-parties affected by an employment discrimination suit while at the same time enhancing the finality of consent judgments and orders by limiting collateral challenges. Your bipartisan substitute for S. 2104 adds language to further ensure that Section 6 protects constitutional due process rights.

In 1989, in Martin v. Wilks, 2 the Supreme Court held that employees adversely affected by a consent decree could bring a separate action to attack that consent decree, even though they had failed to exercise their right to intervene in the earlier proceeding. 3 Prior to Martin v. Wilks at least

Footnotes at end of article.

six circuits barred such collateral attacks. 4

The judicially-created collateral attack bar promoted the purposes of Title VII and other civil rights statutes by enhancing the finality of the consent decree and encouraging early intervention by affected nonparties. 5

DISCUSSION A. The Martin v. Wilks decision

The Martin v. Wilks decision is not based on due process. Rather, the Supreme Court based its decision on statutory interpretation and left the door open to congressional action limiting challenges to civil rights consent decrees. 6 The Court's only reference to due process in Martin v. Wilks occurs in a footnote. 7 In the footnote, the Court recognized the existence of special remedial schemes created by Congress which "expressly foreclos[el successive litigation by nonlitigants," such as the bankruptcy and probate statutes. 8 Such schemes "may terminate preexisting rights if the scheme is otherwise consistent with due process." 9

Although the Court did not set forth the due process requirements for such remedial schemes, it can be assumed that the due process requirements are the same in this context as in others. Thus, because the proposed amendment does not violate procedural due process rights, it is constitutional.

B. The proposed amendment Under the amendment, courts would not

entertain a collateral attack to an employment practice "implementing and within the scope of" a judgment or order, unless the court in the prior, challenged proceeding failed to find that reasonable efforts, consistent with constitutional due process requirements, were made to provide notice to interested persons and the challenger was not adequately represented in the prior proceeding and had not received actual notice and an opportunity to be heard. Thus, if the amendment is enacted, intervention pursuant to Rule 24 effectively would be the primary avenue available to nonparties for challenging an employment discrimination judgment or order.

The current language of the amendment is narrowly tailored to apply only to challenges to "an employment practice that implements and is within the scope of a litigated or consent judgment." Furthermore, the language specifically incorporates the due process requirements of notice and an opportunity to be heard. In addition, persons without "actual notice" can only be precluded from collaterally challenging a judgment or order if a court finds that their interest in the subject of the judgment or order was protected "consistent with the constitutional requirements of due process of law."

1. Persons With Actual Notice The notice language, subsection (l)(A)(ii),

goes beyond constitutional requirements by limiting that subsection's preclusive effect to persons with actual notice that their interests might be affected and notice that an opportunity to be heard was available. Notice is information or an event as a result of which the person actually knew or should have known of his interest in the litigation.Io The source of the information is unimportant as long as the persons know or should know that their interests are threatened and they have an opportunity to be heard.II

Due process does not require formal notice from the litigants to potentially interested persons. I 2 Due process only requires that notice be reasonably designed to

17680 CONGRESSIONAL RECORD-SENATE July 17, 1990 insure that interested parties will learn of the proceeding. 13 The essence of the notice requirement is that persons should know that a liberty or property interest is threatened so that they may choose "whether to appear or default, acquiesce or contest." 14 Actual notice, without a formal notice procedure, is sufficient to satisfy the notice requirement of due process. Therefore, the provision in the amendment for "actual notice" meets the constitutional requirement.

The amendment also meets the constitutional due process requirement that persons have an opportunity to be heard if their interests are affected. The opportunity to be heard must provide the opportunity for a hearing appropriate to the nature of the case, granted at a meaningful time and in a meaningful manner.1 s

Although combining the amendment's collateral attack bar with the requirements for intervention pursuant to Rule 24(a)(2) potentially shortens the amount of time in which nonparty employees may act to protect an interest or assert a claim arising out of an employment discrimination action and limits the forum in which such claims can be heard, these limitations are constitutionally permissible. 16

a. Persons who intervene Clearly, the amendment does not violate

the due process rights of persons who had intervened in the underlying proceeding. Furthermore, the amendment, in subsection (2)(A), specifically protects the rights of intervenors.

A person who seeks and is allowed to intervene in an action has received uue -process. She has received notice of the action and has had an opportunity to be heard. Moreover, she has become a party to the action and, therefore, any judgment or consent decree is binding upon her. As a party, she can appeal from an adverse judgment, but cannot bring a new suit based on the same claims she asserted as an intervening party.

b. Persons with actual notice who choose not to intervene

A challenger who received actual notice that his protectable interest might be impaired in a proceeding and chose not to intervene has not been denied due process. Due process is satisfied by an-opportunity to be heard and does not require an actual hearing. 17 Therefore, failure to intervene waives the right to collaterally attack the prior proceeding.1s This is particularly true if the challenger received direct notice from the parties or the court and was invited to intervene.

2. Persons Adequately Represented by Others

Persons denied intervention because their interests are adequately represented by parties to the action or by previous objectors also do not have a due process claim, even when they are barred from collaterally attacking the consent decree. First, subsection (l)(B) explicitly requires due process analysis before persons whose interests were represented in the prior proceeding can be barred from collaterally attacking a judgment or order. The representation must have been "consistent with the constitutional requirements of due process of law." Furthermore, the rights of persons found to have been adequately represented were protected in the original action which resulted in a judgment or consent decree, and such judgment or consent decree is binding on them as well as the actual parties. 19

3. Persons with Statutory Notice Subsection (l)(C) of the proposed

amendment bars all collateral attack on a judgment or consent decree "if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons consistent with the constitutional requirements of due process of law." Thus, some persons who had no knowledge at all of the action until after the entry of the judgment or consent decree, may be denied the opportunity to be heard on a claim that their interests are adversely affected by the judgment or decree.

Reasonable notice, as certified by the court under subsection (l)(C) of the proposed amendment, can be expected to have reached representatives for all but the most remotely interested groups of persons. Certainly, reasonable notice would include notice to all employees, all unions or labor groups and, perhaps, all persons who have applications for employment on file. Furthermore, the amendment explicitly requires that any court determination that "reasonable efforts were made to provide notice" consider the requirements of due process.

Due process requires only notice by a method "reasonably certain to inform those affected," or at least by a method "not substantially less likely to bring home notice than any other of the feasible and customary substitutes." 20 If the notice certified by a court pursuant to the proposed amendment meets this test, there is "no constitutional bar to a final decree foreclosing [the] rights" of potential challengers to a judgment or consent decree. 21

Furthermore, because of on-going court supervision of the consent decree or judgment, even those persons without actual notice continue to have the opportunity to seek intervention under Rule 24. Thus, the proposed amendment should qualify as a special remedial scheme of the sort noted in Martin v. Wilks and the scheme does not violate due process.

Due process does not guarantee every party with a claim the right to institute a separate law suit, or even to actually litigate.22 Due process requires only that every litigant have an opportunity to be heard.23

Respectfully, JULIA L. ERICKSON.

FOOTNOTES

1 See Attachment I-Proposed Substitute for Sec-tion 6, S. 2104.

2 109 S. Ct. 2180 <1989). 3 Id. at 2188. 4 See Martin v. Wilks, 109 S. Ct. at 2185 n.3. •See Marino v. Ortiz, 806 F.2d 1144, 1146 C2d Cir.

1986). 6 Martin v. Wilks, 109 S. Ct. 2180, 2185, 2187

(1989). 7 See id. at 2184 n.2. 8 Id. 9 Id. (citing NLRB v. Bildiso & Bildisco, 465 U.S.

513, 529-530 n.10 <1984>; Tulsa Professional Collection Services, Inc. v. Pope, 108 S. Ct. 1340 <1988)).

10 See Stallworth v. Monsanto Co., 558 F.2d 257, 264 <5th Cir. 1977).

11 Kramer, Consent Decrees and the Rights of Third Parties, 87 Mich. L. Rev. 321, 347 (1988).

12 Nevilles v. EEOC 511 F.2d 303, 306 C8th Cir. 1975) (per curiam>.

13 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 <1950).

1 .. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314.

15 Boddie v. Connecticut, 401 U.S. 371, 379 <1971>; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314.

16 At long as the nonparties have notice and opportunity to be heard, Congress has the power to place such limitations on legal remedies. Although

the time within which a person may intervene is shorter than the time within which the party may bring an independent action, this legislative limitation on the time during which relief may be obtained is constitutional. Otherwise, statutes of limitations would be unconstitutional. Clearly, they are not. See Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 <1945>; Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349 (1944>; Wheeler v. Jackson, 137 U.S. 245, 255 <1890).

17 Mathews v. Eldridge, 424 U.S. 319, 334 <1976): See also Boddie v. Connecticut, 401 U.S. 371, 378 (1971) Cdue process does not require hearing on the merits); "[al State, can, for example, enter a default judgment against a defendant who, after adequate notice, fails to make a timely notice".

18 Society Hill Civil Ass'n v. Harris, 632 F.2d 1045, 1052 C3d Cir. 1980> (unjustified failure to intervene bars collateral attack; challengers cannot "escape the consequences of their own tardiness by recasting" motion to intervene as collateral attack); see also Rosen v. NLRB, 735 F.2d 564 CD.C. Cir. 1984) <holding that failure to intervene in administrative proceeding, despite knowledge that interest might be affected, constituted waiver of right to collaterally attack administrative decision on due process grounds>.

19 See Hansberry v. Lee, 311 U.S. 32, 40 <1940); United States v. City of Chicago, 870 F.2d 1256, 1260 C7th Cir. 1989).

20 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 315.

21 Id at 317. 22 Kramer, supra note 11, at 339. 23 Id at 339; see also Boddie v. Connecticut, 401

U.S. 371, 378 <1971) (due process does not require hearing on the merits); Local 130, Int'l Union of Electrical Workers v. McCulloch, 345 F.2d 90, 94 CD.C. Cir. 1965) Cdue process right to fair hearing "does not comprehend in every case actual participation as distinct from the opportunity to participate").

Admitted in Minnesota only.

ATTACHMENT !.-PROPOSED SUBSTITUTE FOR SECTION 6, S. 2104

(m) FINALITY OF LITIGATED OR CONSENT JUDGMENTS OR 0RDERS.-

(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights law-

(A) by a person who, prior to the entry of the judgment or order, had-

(i) actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and

(ii) a reasonable opportunity to present objections to such judgment or order;

<B) by a person with respect to whom the requirements of subparagraph <A) are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order consistent with the constitutional requirements of due process of law; or

(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons consistent with the constitutional requirement of due process of law.

A determination under subparagraph <C) shall be made before the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17681 (2) Nothing in this subsection shall be

construed to-(A) alter the standards for intervention

under Rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rules in the proceeding in which they intervened;

 apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be ·represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government; or

<C> prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction.

(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph < 1 > shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to Section 1404 of Title 28, United States Code. 1

Mr. HATCH. Madam President, I do not think we should penalize people because they are white, and I do not think we should penalize people because they are black. It is that simple. If you vote for the Kennedy amendment, you will be voting, in effect, for disproportionately stripping white males of a right to their day in court, a right they currently have according to the Supreme Court decree.

My amendment provides a greater constitutional protection to some victims of discrimination than does Senator KENNEDY'S amendment. When you strip away all the legalese, that is the bottom line issue, that everyone is treated the same, everyone. That is what the Constitution says. Frankly, even if the Constitution does not require it, which he would have it require, white males are not protected.

Only the Supreme Court is going to make that determination, and they may make the determination they do not have the same protection as other citizens.

Even if the Constitution does not require that the Jim Hensons of the world be given a day in court, Congress frequently grants people more rights than the Constitution requires, especially in the area of civil rights. This bill does so. It prohibits State and local governments, State and local government employers from engaging in so-called disparate impact discrimination. The Constitution does not prohibit such discrimination, but this bill does.

The Constitution does not grant compensatory and punitive damages

1 S. 2104, lOlst Cong., 2d Sess. 0990> <language added by substitute bill emphasized).

for gender discrimination and race dis- there after. This is entirely different. crimination by private employers. This Frankly, I think it is only fair that we bill creates such a- right and gives a give everybody an equal right to their person a day in court, regardless, to day in court. vindicate those rights. But you cannot get there under the

There are many examples in this bill Constitution, unless you vote for my providing women and minorities more amendment. The only way to do that rights than the Constitution does. I is to vote down the Kennedy amendam not particularly against that. The ment. I will leave it up to our colFair Housing Act, the Americans With leagues in the Senate. Disabilities Act that I worked so hard I reserve the remainder of my time. on, along with so many other col- The PRESIDING OFFICER. The leagues, and so many more bills grant Senator's time is expired. The Senator rights. Senators need to ask them- from Massachusetts has 2 minutes and selves, is it fair to now adopt the Ken- 3 seconds. nedy amendment, which says that Mr. KENNEDY. On my amend-only if the Constitution in express Ian- ment? guage requires the protection will the The PRESIDING OFFICER. That is protection be there. Otherwise, they correct. lose their rights. And that is what the Mr. KENNEDY. Madam President, bottom line is.

Senator KENNEDY and those who are the point I want to make at this time supporting his amendment are willing is that this is not in any way a provi

sion that treats whites differently. to protect only certain people in our This provision, by closing the consent society and not everbody.

Let me just say that the notice that decree after adequate constitutional Senator KENNEDY is talking about is notice, applies equally to women, no more than an article in a newspa- blacks, browns, and whites. It is uniper on a comment by a neighbor over versa!. the backyard fence. That is the notice So the idea that the Senator from that Mr. Henson and his type of Utah says this is only against white people get. That is not protecting his males is not the fact, Madam Presirights. Under this bill, their rights are dent. What we are talking about is a not protected. With my amendment, constitutional notification. The questhey are. tion is whether there has been ade-

Everybody is granted equal treat- quate notice, whether there has been ment under the law. I do not like dis- adequate communication about the crimination, whether it is forward gear perspective degree. Whether you are or reverse gear. Either way, it is black, white, a woman, or whatever, wrong. you have to be accorded the various

Anyone who votes for the Kennedy constitutional requirements. If you are amendment is voting for a fiction. The not given due process, you can chalvote will be against the right of white lenge it. If you have been given due males who are discriminated against, proces~.__tbep you have to conform even testing that discrimination in a with the existing law. court of law, unless the Constitution I want to point out that this is color expressly requires their rights to be blind across the board in terms of protected, which, of course, it does race, and there is no distinction, for innot. So anybody who votes for this stance, between men and women. To better understand they are not voting categorize it that way would not be for an expansion of rights or fairness fair. or equal treatment under the law; With this second-degree amendment they are voting against certain seg- we are meeting all of the requirements ments of our society. guaranteed by the Constitution, and I

I thin& all should be protecte<[email protected]_ to _our colleagues that they think all should have those rights. I review the substitute which provides think it is pure bunk to say there will very significant notification; I believe be continual litigation over the same that it even goes beyond what the issues. The courts know how to handle Constitution has required. this, and there will not be. That is just We really have tried to bend over a bugaboo and does not really mean backwards on that particular provianything. sion. I hope that my amendment to

The fact is that my amendment will the Hatch amendment will be acceptresolve what is a serious defect in this ed. That way, I think we are consistent bill that most people understand is with both the objective of the Senator there. I am prolonging this discrimina- from Utah, and also the constitutional tion. I am giving people a right to requirements of due process. their day in court, people who claim Mr. HATCH. Before the Senator that they are being discriminated yields back his time, it is my underagainst. standing that the distinguished Sena-

On habeas reform I voted for one tor from Wyoming on our side is Federal bite of the apple, after a pris- caught in traffic. They have asked if oner has had several appeals at both we can hold off the vote. the State and Federal level with un- Mr. KENNEDY. Madam President, I limited appeals to the Superme Court ask unanimous consent that there be a

17682 CONGRESSIONAL RECORD-SENATE July 17, 1990 quorum call, not to be charged to the Senator from Utah or myself, but to be charged to the total 30 hours.

The PRESIDING OFFICER. Cloture does not require that.

Mr. KENNEDY. The time will not be charged, do I understand, to the Senator?

The PRESIDING OFFICER. It will not be counted against any Senator. It will be counted in terms of the 30 hours.

Mr. KENNEDY. I suggest the absence of a quorum.



Mr. KENNEDY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered. VOTE ON AMENDMENT NO. 2270 TO AMENDMENT

NO. 2164

The PRESIDING OFFICER. The question is on agreeing to the amendment in the second degree of the Senator from Massachusetts [Mr. KENNEDY]. The yeas and nays have been ordered. The clerk will call the roll.




Adams Ford Lieberman Akaka Fowler Metzenbaum Baucus Glenn Mikulski Bentsen Gore Mitchell Bi den Graham Moynihan Bingaman Harkin Nunn Bradley Hatfield Packwood Breaux Heflin Pell Bumpers Heinz Pryor Burdick Hollings Reid Byrd Inouye Riegle Chafee Jeffords Robb Cohen Johnston Rockefeller Conrad Kennedy Sanford Cranston Kerrey Sar banes Danforth Kerry Sasser Dasch le Kohl Shelby Dixon Lau ten berg Simon Dodd Leahy Specter Duren berger Levin Wirth

NAYS-40 Armstrong Gorton Murkowski Bond Gramm Nickles Boren Grassley Pressler Boschwitz Hatch Roth Bryan Helms Rudman Burns Humphrey Simpson Coats Kassebaum Stevens Cochran Kasten Symms D'Amato Lott Thurmond DeConcini Lugar Wallop Dole Mack Warner Domenici McCain Wilson Exon McClure Garn McConnell

So, the amendment <No. 2270) to amendment No. 2164 was agreed to.

Mr. HATCH. Mr. President, I ask unanimous consent that the yeas and nays be vitiated on the underlying amendment.

The PRESIDING OFFICER <Mr. KERREY). Is there objection? Without objection, it is so ordered.

The PRESIDING OFFICER. The question now is on agreeing to the Hatch amendment, as amended by the Kennedy amendment. The yeas and nays have been vitiated.

The amendment <No. 2164), as amended, was agreed to.

Mr. KENNEDY. I move to reconsider the vote.

Mr. HATCH. I move to lay that motion on the table.


Mr. DOLE. Mr. President, I suggest the absence of a quorum.



Mr. MITCHELL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER (Mr. FORD). Without objection, it is so ordered.

Mr. MITCHELL. Mr. President, I know that the distinguished Republican leader and the managers have been discussing a bit of procedure with respect to this measure. We have had similar discussions on our side.

I would like to make a suggestion prior to the distinguished Republican leader speaking, but I particularly ask for the attention of the distinguished Senator from Missouri.

Following the vote on cloture, the distinguished Senator from Missouri criticized me for proceeding with the cloture vote when he said I had been offered a proposal by the Republicans to agree to vote for final passage at a time certain. I arose and pointed out that no such off er had been made. I had not accepted any such offer, and therefore the premise of the criticism was mistaken.

However, I also indicated that I would, had such an off er been made, have not only willing but eager to accept it; that I would have vitiated the cloture vote and proceeded to accept an agreement under which we could have reached final passage by a time certain, because my objective is twofold: first, to complete action and get a good bill passed that can become law, and of course to proceed with the business of the Senate.

Accordingly, might I suggest now to the distinguished Republican leader that we do just that; that if we agree on a time certain for final passage of the bill, that the time be equally divided between the two parties; that the amendments within that time be equally divided by the two parties, and then I would seek unanimous consent to vitiate the cloture vote which has just occurred, in effect, accepting precisely that which the distinguished Senator from Missouri referred to earlier in his remarks. That would enable us to proceed in a manner that he has indicated he wished to do so and

would, I hope, enable us to deal with the matter in a way that all Senators agree is fair and yet establishes a time certain for passage of the bill.

Accordingly, I make that suggestion and invite such comment as the distinguished Republican leader or the Senator from Missouri or any other Senator wishes to make on it.


Republican leader is recognized. Mr. DOLE. Mr. President, I would be

willing to vote right now, voice vote. Earlier I said, stay tuned. If you are still tuned, we are prepared to vote right now, a voice vote, yield back all the time, and lay this matter to rest. The cloture vote was 62 to 38. Everybody is on record, one side or the other. I do not see any reason to debate the bill further.

The Democrats, 54 Democrats, said "yes" to a bill to mandate racial and ethnic quotas in the workplace. Fiftyf our Democrats voted for a bill that would deny the hard-working citizens of this country their day in court. They voted for a bill that provides for unlimited compensatory damages, unlimited punitive damages, and unlimited opportunities for the lawyers of this country to line their pockets for decades to come. Fifty-four Democrats voted to make America less competitive by squeezing every last dime out of small business. Fifty-four Democrats have voted for a bill that distorts title VII, not restores it. And 54 Democrats have voted for a bill that has more to do with labor-management relations, more to do with quotas in the workplace than with the civil rights of our Nation's minorities. It seems to me that the record is

clear now. We are not going to be able to prevail on this side. We just had that demonstrated in the last vote. I suggest that we not enter into any time agreement. We are ready to voice vote right now. We will yield back all of our time. We are all for civil rights.

Those of us who had objections made our positions clear in the earlier vote, 38 of us, and 62 disagreed with us. We are in the minority, and we understand that. We do not know what the final outcome will be. I have not talked with the President, but I have notified Mr. Sununu, the Chief of Staff, that I did not see any reason to further delay the Senate. It seems to me that we just ought to vote. I do not know why that is not a good proposition now. Earlier the majority leader and the Senator from Massachusetts were very eager to do that. I said, stay tuned, we will get back to you. I had to check on our side. We checked with everybody on our side, and we are prepared to proceed. We can eliminate all this time, pass the Civil Rights Act of 1990-that is what 54 Democrats want-in its present form. So we are

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17683 prepared to proceed. I ask unanimous consent that we may proceed to final passage, voice vote.

Mr. MITCHELL. I object. The PRESIDING OFFICER. Objec

tion is heard. Mr. DANFORTH addressed the

Chair. The PRESIDING OFFICER. The

Senator from Missouri. Will the Senator withhold?

Will the Senator from Kansas yield the floor?

Mr. DOLE. Mr. President, I ask unanimous consent that we might just go to a record vote, have the yeas and nays on the bill. That would give everybody a chance to readjust their positions.

Mr. MITCHELL. I object. Mr. KENNEDY. Reserving the right

to object. The PRESIDING OFFICER. There

is objection heard. Mr. DOLE. Mr. President, it is obvi

ous that the people talking about passing the bill do not want to pass the bill. They want to have it both ways. They want the press to think one thing and the civil rights lobby to think another. When we get down to the nitty-gritty, they want to clean this bill up. They want to add a few perfecting amendments that do not mean anything, but nonetheless get a few Senators off the hook. I do not know why we cannot just vote. If the majority leader wants to expedite the business of the Senate-and we want to cooperate-we are prepared to vote. We hope that we can have the vote. We do not need any time. Why do you want any time? Having said that, it appears there is an objection.

I will call up amendment 2131. Mr. MITCHELL. Mr. President, I

wonder if the Senator would do the Senator from Missouri and myself the courtesy of commenting, first, on the previous suggestion that I made.

Mr. DOLE. I would be happy to. The PRESIDING OFFICER. Will

the Senator withhold his request for the amendment?

Mr. DOLE. Yes. I do not want to disadvantage the majority leader, but I want to retain the floor.

The PRESIDING OFFICER. Without objection, the Senator from Missouri is recognized, without the Republican leader losing his right to the floor.

Mr. DANFORTH. Mr. President, first, let me say to the majority leader that I did say during my comments earlier this afternoon that it was my understanding that an offer had been made to set a time agreement, and the majority leader who is always very accurate, has now three times corrected me on that statement. So after I have been corrected the third time, I assume maybe I was mistaken. My understanding was, based on comments that were made in our Republican

luncheon today, that there had been an off er for a time agreement. I was not present to hear such an offer made, so I have no firsthand knowledge. I do not care whether there was or was not. I just threw that out in the conversation.

Here are my views. I think now we are spinning our wheels. I want a bill. I want a bill that accomplishes what I think most of us want to accomplish namely, the overruling of Wards Cove, taking the law back to where we were under the Griggs decision and subsequent cases. And I believe that we were not only very close, but there really was a meeting of the minds between Senator KENNEDY and Governor Sununu. I still believe that the chances of success of this bill depend on an agreement between the President and Senator KENNEDY. I further believe that that is something that can be accomplished.

In a phone conservation with Governor Sununu immediately after the cloture vote and after the peppery exchange on the floor, Governor Sununu said to me, "Well, where do we go from here?" And then he said at the end of the phone conservation, "If you can think of anything that we should be doing, let me know."

The White House wants to work something out. The White House has invested a lot of time into working something out. In fact, they believed and I believed that they had worked something out. Under the present state of circumstances, I see only two possibilities. One is to vitiate the cloture vote, as the majority leader has suggested, and try to work out something through negotiations, which is satisfactory to the White House and to Senator KENNEDY; or the longer way to do that is to proceed as Senator DOLE suggested and basically get rid of this bill.

Just vote on it. then let the President veto it, I think the veto is going to be sustained, and then come back with a new version of the legislation that everybody can agree on. Those are the only two possibilities that I see that can lead us to passing the bill. The present situation does not provide us enough flexibility. We just do not have it.

Senator KENNEDY, I presume, would oppose an amendment which has been filed, which is the agreement that we thought was reached last Thuro::>Jay. Therefore, I assume that that amendment is not going to be agreed to by the Senate. If we are not going to agree to that, we have to come up with some new language and we cannot come up with some new language under cloture.

So my own view is that whether Senator DoLE's approach or Senator MITCHELL'S approach is taken I do not much care because anything is better

than were we are now. We have to get out of these woods.

The PRESIDING OFFICER. The majority leader.

Mr. DOLE. Mr. President, I did not lose my right to the floor.

The PRESIDING OFFICER. I understood that.

Mr. DOLE. I am happy to yield. The PRESIDING OFFICER. The

unanimous consent was the minority leader and the Senator from Missouri, without losing the right to the floor.

The majority leader. Mr. MITCHELL. Will the distin

guished Republican leader yield to the Senator from Massachusetts.

Mr. DOLE. I am happy to yield to the Senator from Massachusetts without losing my right to the floor.

The PRESIDING OFFICER. The Republican leader yields to the Senator from Massachusetts.

Mr. KENNEDY. Mr. President, my understanding is that we have filed what we thought was agreed to last Thursday.

Mr. MITCHELL. Mr. President, I still hope we can work this out in a manner suggested by the Senator from Missouri, I simply say with respect to the request of the distinguished Republican leader. Obviously it is a subjective judgment on the part of each of us as to the merit or weight or value of a particular amendment.

But I am advised that Senator KENNEDY had previously indicated his willingness to accommodate concerns of several Senators with respect to several important areas or provisions within this bill, including business necessity, making clear that the bill does not require quotas, damages in disparate impact, damages in the Americans With Disabilities Act, statistical imbalance, and others. I believe those Senators, if the amendments are germane, ought to have the right to off er their amendments and to have them debated and voted upon.

The Republican leader recited a litany of things which he said 54 Democrats voted for. I could with ease stand here and recite a litany of things which 37 Republicans voted against; civil rights, justice, equality and a lot of other things. I do not think that would serve any useful purpose in trying to resolve the matter in the most prompt, fair, and responsible way.

Accordingly, we are apparently unable to reach agreement. I suggest we attempt to continue along those lines and, in the meantime, proceed with the amendment which has been offered or other amendments which are being considered in the interim.

The PRESIDING OFFICER. The Senator from Missouri.

Mr. DANFORTH. Mr. President, if I could just make one final suggestion to the majority leader, and I know

17684 CONGRESSIONAL RECORD-SENATE July 17, 1990 that he thinks that I am singing the same song over and over again, but one more day.

If it is correct that the chances of success are directly related to getting an agreement between Senator KENNEDY and the White House, and if they are as close as the Senator has represented them to be, I wonder if there is some mechanism for giving us one more day. I mean I wonder if we could agree to just take 24 hours, before we get on with wherever we are with cloture, or whatever anybody wants -to take, but just take one more shot at trying to work out an agreement between the White House and Senator KENNEDY.

So my suggestion, and I am not reluctant to get myself into the scheduling business, but my suggestion would be that maybe we could agree to just lay the bill aside for 24 hours and take up something else just to see if it is possible to negotiate this.

The PRESIDING OFFICER. The majority leader.

Mr. MITCHELL. Mr. President, may I respond to that?

The PRESIDING OFFICER. The majority leader is recognized.

Mr. MITCHELL. Speaking only for myself I have absolutely no objection to the suggestion. I am prepared to do so. As the Senator knows last week he suggested to defer it 24 hours. I said def er it for a week, if that would produce a result that could become law and advance the interest which I know the Senator from Missouri shares with, I believe, a substantial majority of the Senate. I would be prepared to do that, lay this bill aside.

I just heard the request, so I want to get the opinion obviously of the author and principal manager of the bill, and we could go to the farm bill for a day next, and if we could get to it, we could come back to this in 24 hours. If that will produce a favorable result, I am perfectly agreeable to trying to do that.

I should always try to consult with the Republican leader on scheduling. I made a mistake without consulting with him or with Senator KENNEDY as the principal author and manager. So my remarks are subject to their comments, and obviously that would require unanimous consent. I am just responding for myself. I have no objection to that and would welcome it.

The PRESIDING OFFICER. The minority leader.

Mr. DOLE. Mr. President, again I would not wear anybody out on this. I thought earlier everybody was anxious to get rid of this bill. Now everybody want to postpone it a day, offer a few amendments.

We had a cloture vote at 2:30. We can dispose of this bill and be out of here at 6:05. It seems to me that a vote would be an opportunity to move this bill and I do not see any reason to go

through any more machinations or pline is not a problem on this side of spend any more time. The Senator the aisle. We never had it. from Missouri furnished the deciding We are all free spirits. We are all vote for cloture. We had 40. We could leaders on this side. So why not conget 41. elude action on this bill and whip up

There have been good faith negotia- something else. tions by the Senator from Missouri, So without any partisan reference, the Senator from Vermont, the Sena- which I seldom make, we are prepared tor from Pennsylvania. And then a to vote. I want to help the Senator number of us were involved in differ- from Arkansas and the Senator from ent ways. The Senator from Utah Louisiana, the Senator from North being the leader, the Senator from Dakota all those who voted for cloSouth Carolina and myself and many ture, trying t_o helP the small businessothers, --aiong-witntl'fe-W~eHouse-, - man, trying to impose quotas in the and we we:e very close at tunes on a workplace, trying to deny people the numb~r of issues .and very far apa~t o~ right to their day in court punitive other issues. I thmk one problem md1- damages, just trials. That will go great cated earler by the Senator from in North Dakota Louisiana and ArRhode Island is that we had too many kansas and Kans~. But at l~ast I can chiefs. and not enough Indians. Every- say, "Well, I did not vote for cloture." body is a lawyer around here. When I want to keep people in business. I you get more than one lawyer togeth- want civil rights, but I want balance. I er, you have ~ proble~. We have s~v- want racial justice, but I do not want e!al lawyers mvolved m the negot1a- injustice or racial quotas. t1ons and you can under~tand: the And now we are told we cannot vote problems created by that s1tuat10~. I on final passage because some senacannot understand now why we Just tors need to have a little cosmetic surdon't pass the bill. That is essentially gery and need to offer a few little why we had th~ cl?ture vote for, so w_e amendments so they can say, "I voted could move this bill out ~nd not wait for that. This is my amendment and another day. But I ~hmk my. col- the amendment says there are no leagues on t?e other side saw th:1s as quotas in this bill." an opportumty ~o put ~he R~p.ub~1cans I do not know why we do not expeon re.cord as ?emg agamst. c1v1l rights, dite this bill. We are talking about denot~ithstandmg the history .and laying the recess a week. We can save votmg recor~. of. som~ Republ~ca? 3 or 4 days right here. Vote on final Senators on c1y11 ~1ghts issues. This is passage right now. We may even get ~i~hance to stick it to them and they out a week early. Maybe we will pass

Now we told some of my colleagues the b~ll on a. voice vote. ~~ing i.t ui;>. who voted for cloture really did not We will pass it. ~hatever it is, .brmg it want to vote for cloture after all. Now out .her~. We .will. pass anythmg. We we have to find a way to get them off are Just ma mmority. [Laughter]. the hook. That is all we are arguing T1:e PRESIDIN<? OFFICER .. The about now, finding a safe haven for Chair would admomsh the galleri~s .. some of those who should have voted Mr. DOLE. I hope ~hat the maJor1ty against cloture in the first place. leader would let us ~us~ vote. We do

But again I congratulate the majori- not have to use all this t1?1e. . ty leader for party discipline. We could ~ould I make a parliamentary m-not produce it on this side. qmry?

We lost eight Senators and the The P~ESIDIN<? .OF1:ICER. The Democrats lost just one. Senator will state ~Is mq~1ry. .

But that is history and now we have Mr. DOLE. Is it pos~1ble to yield a chance to pass this historic legisla- back 27 hours and 20 mmutes? Can I tion either on a voice vote or record do that? vote right now today. The PRESIDING OFFICER. Sena-N~w we are' told we cannot vote tors can yield back their individual

There are some unconsistencies here. · time, but it does not take the time We have 27 hours and 20 minutes re- under the cloture which is 27 hours

maining. We can finish this bill and plus. have 27 hours that we can devote to Mr. DOLE. But I could do it by other business. unanimous consent?

I do not know of any reluctance to The PRESIDING OFFICER. That vote on final passage. could be accomplished by unanimous

I see the Senator from Arkansas, consent. The Chair has never enterwho is certainly ready for vote on final tained a motion like that under clopassage. He voted for cloture. He must ture, but if the Senator wishes to put be ready to go. And others I can name it, we will see what happens. must be ready to go. They could Mr. DOLE. That would be a first. hardly wait to rush out and vote for I ask unanimous consent that all cloture. Now we are told after we time be yielded back, 27 hours and voted for cloture that that vote was whatever time remains. just for party discipline. Again, I con- The PRESIDING OFFICER. Is gratulate the Democrats. Party disci- there objection?

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17685 Mr. MITCHELL. Mr. President, I

object. The PRESIDING OFFICER. Objec

tion is heard. The majority leader. Mr. MITCHELL. Mr. President, the

Republican leader is, of course, free to characterize the motives of those who voted for cloture as he wishes. But nothing he says can change the rules of the Senate. The fact is, of course, that a vote for cloture under the rules of the Senate is not a vote to prohibit amendments but rather a vote to limit amendments to those which are germane to the pending legislation and to limit the time within which amendments and all matters relating to the legislation can be considered to 30 hours.

It is, therefore, inaccurate to state that a vote for cloture is a vote for no amendments. It is inaccurate, therefore, to state that a vote for cloture is a vote for immediate passage of the legislation. Indeed, a Senator who strongly favors legislation which may be prevented from passage by those who wish to offer numerous nongermane amendments can pursue no more effective course than to vote for cloture in order to limit consideration on that bill to amendments which are germane. The rules have never stated otherwise, and it is inaccurate to characterize them otherwise.

Those Senators who voted for cloture and who have previously filed amendments which are germane to the bill have every reason, in common sense and consistent with their support for the bill and for their amendments, to proceed in that fashion. Therefore, no person should be under the impression that a Senator who voted for cloture voted to prohibit all amendments from being considered. It is precisely the opposite.

A Senator who votes for cloture votes to prohibit nongermane amendments from being offered, votes to limit the time within which the legislation is considered, but does so with the expressed knowledge and understanding under the rules that those amendments which have previously been filed under the rules and which are germane to the legislation will have the opportunity to be considered. And that is precisely the situation in which we· find ourselves.

I could go down the list of Republican Senators and stand here and accuse individuals of being against civil rights, being against racial equality, being against justice in our society in an effort to embarrass them, as an effort is being made here to embarrass individual Democratic Senators. It would serve no useful purpose. I simply state that what cloture means under the rules is clear to every Senator and ought to be clear to all those observing and following this debate.

It appears that, unfortunately, we cannot reach an agreement at this time on how best to proceed. Those Senators who in good faith filed amendments that are germane to the bill and voted for cloture are now entitled to have their amendments considered.

Each of us may hold and offer an opinion as to what their motives are, but they plainly have the right under the rules. I think it best, under those circumstances, if we proceed to deal with them in that fashion.

In the meantime, I will ask the distinguished Senator from Massachusetts to pursue, if possible, any conceivable arrangement which might enable us to reach an agreement and vote on the bill by a time certain and vitiate the cloture vote. If that is not possible, I then will proceed as under the rules.

Mr. DOLE. Mr. President, as the majority leader knows, I will be happy to try to work with him on this, as we have on many other matters. But this is a matter of some intensity and of some importance. When there is a rush to have a cloture vote in an effort to put everybody on this side on the wrong side of a civil rights issue, we get a little testy about it. We do not like it. I would guess, as I look around this room, everybody on this side has a pretty good civil rights record. We do not want to be nailed to the wall in some political exercise as we had here earlier today.

There were good faith negotiations going on. The President said, as recently as this morning at the White House, he still wanted a civil rights bill, one he could sign.

We had a discussion of it with the Republican leadership this morning and we knew the cloture motion was filed. But, as I said in the statement yesterday, there was no reason to file it. Nobody was acting in bad faith. Nobody was doing anything, that I know of, except trying to figure out how we could work it out. Then there was an agreement made-at least almost an agreement-wiith the chief of staff and others at the White House, which apparently fell apart overnight. Maybe there is still some way to reach an agreement. Maybe there is some way we can satisfy the concerns.

But it seems to me with all the hoopla and all the hurrahs and ap the noise around here, there was no concern about that; all concern was to nail the Republicans. And you did; you succeeded, with our help.

There is not anyone on this side that I know of who does not want a good civil rights bill. But we do not want a bad civil rights bill. We have some on our side who have gone to the trouble-I talked to one of my colleagues, the Senatm· from New Hampshire-to sit down and actually read the cases.

So we have a lot of informed people on both sides. As far as I am concerned, everyone acting is in good faith. We just have a difference of opinion.

Maybe there is some way to resolve our differences. But to tell us now that everybody is acting in good faith after they rub our nose in it with a cloture vote, it takes us awhile to understand that. Maybe we missed something in the translation.

We have had a lot of House Members over here lobbying, right during the vote. I guess that is permissible. There were big crowds outside cheering; There was a loud noise when the vote was announced. The same happened when the vote on the last amendment was announced. This is not legislating; this is a rally, a political rally. Why not invite everybody in?

My colleague from Kansas, Senator KASSEBAUM, has been working night and day-she is the leader of a group, with Senator GORTON and others-to try to craft a substitute. They have been talking with colleagues on the other side to see if they would be interested in joining that effort. Some have said, well, maybe. Some have not said anything. I ask that we call up amendment No. 2131.

Mr. PRYOR. Mr. President, before the distinguished Republican leader sends the amendment to the desk-

The PRESIDING OFFICER (Mr. GLENN). Does the Republican leader withhold?

Mr. PRYOR. I wonder if he might yield to me for a few moments.

Mr. DOLE. Let me just call it up. Then I will be happy to yield the floor. I am not trying to hold the floor here.

AMENDMENT NO. 2131

<Purpose: To amend the Civil Rights Act of 1964 to strengthen civil rights laws that ban discrimination in employment, and for other purposes) Mr. DOLE. Mr. President, I call up

an amendment at the desk and ask for its immediate consideration.



The Senator from Kansas [Mr. DOLE], for Mrs. KASSEBAUM, for herself, Mr. MURKOWSKI, Mr. McCAIN, and Mr. LUGAR, proposes an amendment numbered 2131.

Mr. DOLE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.


The amendment is as follows: <a> FrNDINGs.-Congress finds that addi

tional protections and remedies under Federal law are needed to deter unlawful discrimination.

(b) PuRPosEs.-The purpose of this Act is to strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence.

17686 CONGRESSIONAL RECORD-SENATE July 17, 1990 SEC. 3. DEFINITIONS.

Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e> is amended by adding at the end thereof the following new subsections:


"Cm> The term 'demonstrates' means meets the burdens of production and persuasion in accordance with Rule 301 of the Federal Rules of Evidence.

"<n> The term 'justified by business necessity' means that the challenged practice has a manifest relationship to the employment in question or that the respondent's legitimate employment goals are significantly served by-even if they do not require-the challenged practice or group of practices.

"(o) The term 'respondent' means an employer, employment agency, labor organization, joint labor-management committee, controlling apprenticeship or other training or retraining program, including on-the-job training programs, or those Federal entities subject to the provisions of section 717 <or the heads thereof)." SEC. 4. DISPARATE IMPACT CASES.

Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is amended by adding at the end thereof the following new subsection:

"(k} PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT CASES.-

"(1) An unlawful employment practice based on disparate impact is established only when-

"CA> a complaining party identifies a particular employment practice and demonstrates by statistical evidence that that particular employment practice causes a disparate impact on the basis of race, color, religion, sex, or national origin; and the respondent fails to demonstrate that such practice is justified by business necessity; or

"CB> a complaining party identifies a combination of two or more employment practices and demonstrates by statistical evidence that that combination of two or more employment practices causes a disparate impact on the basis of race, color, religion, sex, or national origin, and that each employment practice in such combination has contributed to the exclusion; and the respondent fails to demonstrate that such combination would not cause a disparate impact but for employment practices justified by business necessity.

"(2) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses an illegal drug as defined in Schedules I and II of section 102(6} of the Controlled Substances Act <21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin except where permitted by 42 U.S.C. 2000e-2(i}." SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER

MISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SECTION OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.

(A) IN GENERAL.-Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as

amended by section 4) is further amended by adding at the end thereof the following new subsection:

"(m) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a major contributing factor for any employment practice, even though other factors also contributed to such practice."

(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act (42 U.S.C. 2000e-5g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination.". SEC. 6. FACILITATING PROMPT AND ORDERLY RES

OLUTION OF CHALLENGES TO EMPLOYMENT PRACTICES IMPLEMENT· ING LITIGATED OR CONSENT JUDGMENTS OR ORDERS.

Section 703 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-2> <as amended by sections 4 and 5 > is further amended by adding at the end thereof the following new subsection:

"(n) FINALITY OF LITIGATED OR CONSENT JUDGMENTS OR ORDERS.-

"(1) Notwithstanding any other provision of law, and except as provided in paragraph <2>. an employment practice specifically required by a litigated or consent judgment or order resolving a claim of employment discrimination under this title may not be challenged in a claim under the United States Constitution or Federal civil rights laws by a person who, at the time of the entry of such judgment or order, was an applicant for employment with or an employee of the entity covered by such decree, whose interests would likely be affected by the consent decree, and who had-

"<A> actual notice that such judgment or order would likely affect the interests of such person and that later challenge by such person would be barred; and

"(B) a reasonable opportunity to challenge such judgment or order;


" <A> alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure;

" apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government; or

"<C> prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction." SEC. 7. EXPANSION OF RIGHT TO CHALLENGE DIS·

CRIMINATORY SENIORITY SYSTEMS. Section 706<e> of the Civil Rights Act of

1964 (42 U.S.C. 2000e-5(e)) is amended by adding at the end thereof the following language-

"For purposes of this section, an alleged unlawful employment practice occurs when a seniority system is adopted, when an individual becomes subject to a seniority system, or when a person aggrieved is injured by the application of a seniority system, or provision thereof, that is alleged to have been adopted for an intentionally

discriminatory purpose, in violation of this Title, whether or not that discriminatory purpose is apparent on the face of the seniority provision.". SEC. 8. PROVIDING FOR ADDITIONAL EQUITABLE

RELIEF IN CERTAIN CASES OF INTENTIONAL DISCRIMINATION.

Section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "In fashioning remedies for an unlawful employment practice <other than an unlawful employment practice established in accordance with subsection 703(k)), the court may require the respondent to pay the complaining party an amount not to exceed $100,000 if the court finds (i} that back pay cannot be awarded with respect to that practice; OD that an additional equitable remedy beyond those otherwise available is needed to deter the respondent from continuing to engage in such unlawful employment practices; and <HD that such an award is otherwise justified by the equities."

All issues in cases arising under title VII of the Civil Rights Act of 1964 <42 U.S.C. 2000e to 2000e-l 7) shall be heard and determined by a judge, as specified in section 706(f} of that title <42 U.S.C. 2000e-5f). SEC. 9. ALLOWING THE A WARD OF EXPERT FEES.

Section 706<k> of the Civil Rights Act of 1964 <42 U.S.C. 2000e-5Ck)), is amended by inserting "(including expert fees) and" after "attorney's fee,"; SEC. 10. EXPANSION OF PROTECTIONS AGAINST

ALL RACIAL DISCRIMINATION IN THE PERFORMANCE OF CONTRACTS.

Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981> is amended by adding at the end thereof the following new language:

"The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of state law. This section affords the same protection against discrimination in the performance, breach, modification or termination of a contract as it does in the making or enforcement of that contract.". SEC. 11. PROVIDING CIVIL RIGHTS PROTECTIONS

TO CONGRESSIONAL EMPLOYEES. Title VII <42 U.S.C. 2000e et seq.) is

amended by adding at the end the following new section: "Sec. 719. CONGRESSIONAL COVERAGE.

"Notwithstanding any other provision of this title, this title shall apply to the Congress of the United States. The means for enforcing this title as the title applies to each House of Congress shall be as determined by the House of Congress.". SEC. 12. SEVERABILITY.

If any provision of the Act, or an amendment made by this Act, or the application of such provision to any person or circumstances is held to be invalid, the remainder of this Act and the amendments made by this Act, and the application of such provision to other persons and circumstances, shall not be affected thereby.

NO. 2175 TO AMENDMENT NO. 2131

<Purpose: To amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes) Mr. DOLE. Mr. President, I call up

Amendment No. 2175 in the second degree and ask for its immediate consideration.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17687 Mr. KENNEDY addressed the Chair. The PRESIDING OFFICER. The

clerk will report. The assistant legislative clerk read

as follows: The Senator from Kansas [Mr. DOLE], for

Mr. HATCH, proposes an amendment numbered 2175 to amendment No. 2131.

Mr. DOLE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.


The amendment is as follows: At the appropriate place in the amend

ment insert the following: "Notwithstanding any other section of

this Act, the term 'required by business necessity' means manifest relationship to the employment in question or demonstrable relationship to successful performance on the job.".

Mr. DOLE. Mr. President, I yield the floor.

The PRESIDING OFFICER. The Senator from Massachusetts is recognized.

Mr. KENNEDY. Mr. President, I do not seek recognition.

The PRESIDING OFFICER. The Senator from Arkansas is recognized_

Mr. PRYOR. Mr. President, I do not know whose time I am speaking on and I do not care whose time I am speaking on.

The PRESIDING OFFICER. The Senator is speaking on his own time.

Mr. PRYOR. I am not out to nail any Republicans or embarrass any Democrats.

Mr. President, I truly feel maybe I am a little bit naive. After almost a dozen years as a Member of this great body, I think I am naive because I truly believe that conscientious, good faith people, men and women from 50 States across this country, can come together with a very emotional and a volatile problem and through a mutual, conscientious effort, can work it out without going down into the muck and mire of why this person voted that way or that individual voted that way or what party wants to embarrass which party.

I am very sorry that this turn of events has taken place, Mr. President. I would like to explain, just for this Senator-none of my colleagues, no one else on the other side-why I voted for cloture.

It was very simple. Because, one, I think we should have a civil rights bill. I have told the distinguished author of this bill that I want to vote for a civil rights bill but I may not be able to vote for this particular civil rights bill. I wanted a chance to be a part of the process of doing something about quotas; of addressing the issue of punitive damages; of addressing the issue of burden of proof, and many other issues that have deeply concerned me since the inception of this particular bill.

It is a controversial bill. In my opinion it needs changing. The only reason that I voted, basically with 62 Democrats and a few Republicans, on this issue this afternoon to cut off debate, was to find that avenue, was to find that vehicle where we could start amending this piece of legislation; where, one, it would recognize and show concern, not only for the civil rights of those individuals who are being discriminated against, but at the same time begin to answer some of the concerns and some of the fears that have been expressed to us by small business people across my State and across this country.

All I am saying is I hope negotiations can continue. I hope we can continue constructively talking about issues that we can change and make this legislation stronger and more palatable. I hope we do not try to voice vote it.

If there needs to be a cooling-off period, that is one thing. But I truly believe, Mr. President, we can in good faith begin some efforts to consider these amendments, to look at them, to discuss them pro and con, and to debate them and vote yes or no, ultimately, on them. That is the process and I am a part of that process. I want to be a part of that process. And I want to be a part of making this bill stronger and more acceptable to a broader spectrum of our economic situation throughout the country.

Mr. President, that is all I have to say. I am sorry this has taken a turn of events like this and, for one Senator who voted for cloture, I simply wanted to give that explanation.


The PRESIDING OFFICER. The Senator from Kentucky.

Mr. STEVENS. Will the Senator from Kentucky yield for just a second?

Mr. FORD. To my friend, yes. Mr. STEVENS. Mr. President, I yield

55 minutes of my 1 hour to the distinguished minority leader, Senator DOLE.

The PRESIDING OFFICER. The Senator has that right.

The Senator from Kentucky. Mr. FORD. Mr. President, I have

had the opportunity to listen this afternoon, and I had a very good vantage point-from the Chair-to not only look in the eyes of those who were speaking but watch the others who were talking and attempting to figure out what to do now.

I have not been in the Senate very long; 16 years now. This is the first time I have ever heard Senators singled out for an ulterior motive as it related to their vote on a particular bill-it is unusual-and then turn around and use the phrase "stick your nose in it." Everybody knows the connotation of that. And that to me does

not reflect on the language that is supposed to be used in this Chamber.

I voted for cloture and I am proud that I voted for cloture. But I did not give up my rights. My right was to vote on amendments and the amendments are there and we expect to vote on them.

We voted for cloture in order to expedite, but have the opportunities under the rules.

Mr. President, I do not take kindly to the abuse that the majority leader has been taking. No one has been better to this Senate and to its Members than this individual.

We have gone from about 3 weeks on, 1 week off: we get 10 days. Nobody is here on Monday or Friday, and the majority leader tries to do the business of the Senate, being pushed and harassed by everybody else. I think it is time that the fur on the back of his neck stood up and he said it is no more; you are going to vote on Monday; you are going to vote on Friday. And you are going to be here to do the business of the Senate. I am ready, and I think most of the Senators are ready to do that.

But then when you are pushed and pulled and rolled, and so forth, and finally you say it is enough, and then you take the criticism that was attempted to be given to the majority leader on the floor this afternoon is something that disturbs me and disturbs me greatly. I know I will probably catch some fire from this, and I do not mind it at all. My daddy told me when I was young, "Lad, you are in politics. They will say things about you, Wendell, that will take your hide off. But always remember, when it grows back, you are tougher."

I had my hide taken off several times. I understand the political arena. But this institution means more to us and to this country than the procedure as it relates to what our colleagues think should be done.

Mr. President, I wanted to get my remarks in, and I want to say to the majority leader, I think he has a lot of spunk. I think it is about time he stood up, and I resent those who would criticize him as not doing his job.

The PRESIDING OFFICER. The Senator from Kansas.

Mrs. KASSEBAUM. Mr. President, I would like to speak on amendment No. 2131, which is the pending amendment. First, I would like to say that this is in the nature of a substitute because it touches on all parts of the bill which have been in question, and it is intended to address the concerns of many on both sides of the aisle. I have particularly appreciated being able to visit with the Senators from Arkansas, the Senator from Kentucky, and the Senator from Oklahoma, and many others on both sides of the aisle who

17688 CONGRESSIONAL RECORD-SENATE July 17, 1990 very much want to shape a thoughtful, constructive civil rights bill.

On our desks today is an editorial from the New York Times called "Enough Haggling on Civil Rights." I certainly agree with that, Mr. President. It has become haggling, and in many ways I think we are trying to find out how many angels can dance on the head of a pin. Perhaps there are some Senators who do not want a bill, but many of us believed that some of the Supreme Court decisions need to be corrected and need to be addressed with legislation that encourages thoughtful, constructive settlements rather than litigation.

In this editorial from the New York Times, it said:

The most urgent need is to rearm minorities and women with the ability to force employers to justify possibly discriminatory hiring and job practices. These practices include testing and education requirements that perhaps wrongfully frustrate attempts to desegregate the workplace. Former Chief Justice Warren Burger held two decades ago that when minorities can show they're disproportionately fenced out of jobs, the employer must show business necessity.

Mr. President, that is exactly what we do in the substitute regarding the Wards Cove decision.

I would just like to quote from the language in the substitute:

The term "justified by business necessity" means that the challenged practice has a manifest relationship to the employment in question or that the respondent's legitimate employment goals are significantly served by-even if they do not require-the challenged practice or group of practices.

That is exactly the language in the Griggs decision and in the Beazer decision. It is language which has been tested in the courts. We also place the burden of proof on the employer.

So when the New York Times editorial suggests we do that, this is exactly the approach that we have taken.

I would like to go on just for a moment and address some of the other parts of this substitute, Mr. President. It has been said regarding Wards Cove that, indeed, this language in the substitute does not overturn Wards Cove but enacts the Wards Cove standards.

Mr. President, that is not accurate. This substitute does overturn Wards Cove by shifting the burden of proof, both the burden of persuasion and the burden of production. It also takes the definition of business necessity, which is right out of Griggs and Beazer, which I mentioned before. If this is not the law prior to Wards Cove, then I do not know what is. I personally believe that it does answer the concerns that have been raised by the Supreme Court's decision.

I have felt strongly that there were many parts of the bill on and beyond Wards Cove that we must look at it as a whole. It seems to me that the bill originally reported out of the Senate Labor Committee was one designed to

encourage litigation. I think our goal here is to find language aimed at addressing the Supreme Court's rulings without encouraging litigation, confrontation, and division. Instead, we should try to maintain the widespread support and success that our civil rights laws have achieved.

One of the things that I have felt strongly about, Mr. President, is that we not expand recovery of attorneys fees. I believe the bill passed by the Senate Labor Committee, by broadening the recovery of attorneys fees, again, only encourages a litigious atmosphere. I think regarding damages, again, to allow punitive damages and jury trials, only encourages litigation rather than negotiation.

I am as troubled as anyone by discrimination in the workplace, discrimination anywhere, whether it applies to women or whether it is racial discrimination. I think it is very unjust to say we will not tolerate racial discrimination, but we will tolerate discrimination against women. But I believe that the language that we have come up with in the substitute is language that does help address discrimination or harassment in the workplace.

I believe, Mr. President, that the compromise will treat women, minorities and everyone else much better than now under title VII. Under the compromise bill we will in many ways be much better off. One, it will avoid lengthy litigation and the uncertainty involved in jury trials. While there may not be jackpot jury awards, plaintiffs will, at least, have some certainty, while under the tort-based approach of S. 2104, they may end up with nothing at all. Most important, the reconciliation framework of title VII will be preserved and the broad support our civil rights laws now enjoy will be continued.

I would argue that this is, indeed, a much better approach. It would not permit jury trials, but would allow the judge to allow damages of up to $100,000. It removes the case from a lengthy, uncertain process, as I said, and yet provides remedies that are fair and appropriate.

There are other aspects of the substitute, Mr. President, which deal with other parts of the bill, such as the Wilks and Price Waterhouse decisions. We have had the amendment dealing with Wilks on the floor earlier this afternoon. I personally believe the substitute addresses this issue in a way that is fair. It bars claims by employees and applicants whose interests would likely be affected by the consent decree, provided they also have had actual notice and a reasonable opportunity to challenge it.

So I hope that as we consider all points of this substitute, Mr. President, we all recognize that there are good faith efforts on both sides of the aisle to achieve what I believe is the

goal of everyone, a thoughtful means of addressing Supreme Court decisions that need to be addressed. In doing so, we can provide a bill that will be supportive of negotiation rather than contention which only will continue to lead to tensions in the workplace.

What saddens me, Mr. President, is there seems to be a line that has been drawn in the sand, and there is a great deal of effort being made to say, if you are not with us, then you are against us. I think when that happens, it is very difficult to put together compromises in language that can be beneficial to everyone. I think it is possible to achieve that, Mr. President, but I think it is going to require some further efforts. Under the time limitations we have, I only hope we will be able to achieve some compromise.

Mr. DOMENIC!. I wonder if the Senator from Kansas will yield. I do not need the floor other than to ask consent.

Mrs. KASSEBAUM. I yield to the Senator from New Mexico for just a moment.

Mr. DOMENIC!. Without losing her right to the floor.

I yield one-half hour under cloture to the distinguished Senator from Utah [Mr. HATCH].

The PRESIDING OFFICER. The Senator has that right. The time will be awarded to the Senator from Utah. The Senator from Kansas.

Mrs. KASSEBAUM. Mr. President, I would like to yield to the Senator from Alaska without losing my right to the floor.

The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

Mr. MURKOWSKI. Mr. President, let me acknowledge my thanks to my colleague from Kansas.

Mr. President, I rise today in support of the substitute amendment to S. 2104, the Civil Rights Act of 1990, as offered by my colleague from Kansas. I think everybody in this body, Mr. President, would agree with the goals of Senate bill 2104. We all agree that discrimination in any form is unacceptable. As a free society, we can never rest until every individual is given equal opportunity. When we think about the American dream, that is really what it is all about. The question, however, that this body must answer today is the best way to achieve the goal.

Mr. President, the substitute amendment by my colleague from Kansas clearly avoids the issue of quotas. The substitute amendment provides meaningful civil rights protection to all citizens in America without resorting to quotas. In my opiniion, quotas do more harm to the cause of civil rights than any other provision this r.ody will consider. They are demeaning to

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17689 minorities and they are a source of animosity for everyone.

Unfortunately, Mr. President, it is the opinion of the Senator from Alaska that the proponents of Senate bill 2104 have drafted a bill that will have the effect-the effect, the subtle effect-of mandating quotas because businesses will simply find that their best alternative and best protection. The committee bill establishes such a high standard of proof that the only practical way for businesses to avoid lawsuits will be to maintain hiring quotas. The substitute amendment will provide meaningful civil rights protection without falling into the socalled quota trap.

Mr. President, the substitute amendment is preferable to the committee bill for several other reasons. The substitute amendment provides access to the courts without creating, in the opinion of the Senator from Alaska, a full-employment act for lawyers. It is important that all citizens be able to go before the court to ensure that their individual rights are protected, but real racial and ethnic harmony will never be achieved by relying primarily on the courts. Unfortunately, that is exactly what the committee bill does. It encourages fee hungry lawyers to bring any case regardless of merit, and it encourages judges to stretch laws beyond what Congress actually legislated and intended.

The substitute amendment does one thing other which this Senator believes is very important. It limits the retroactivity application of this legislation. Retroactivity is fundamentally unfair. Parties that begin litigation under one set of rules should not have the rules changed on them in the middle of the game, and that is just what this committee bill does.

This Senator had intended to offer an amendment to the committee bill to limit retroactivity. That amendment, however, will not be necessary if this body adopts the substitute amendment by my colleague from Kansas because the substitute eliminates the retroactivity.

Mr. President, I am no lawyer and I am not going to lecture my colleagues on whether retroactivity is constitutional or not. Some leading legal scholars argue forcefully that retroactivity violates the Constitution's separation of powers principle and the due process clause of the fifth amendment. This Senator, however, does know what is fair, and retroactivity is simply unfair. Retroactivity is like my telling someone in the last few yards of a marathon that the rules of the race have been changed and they have to run the first 26 miles again.

Passage of the committee bill would result in unfair retroactivity for a company in Alaska, and that company is Wards Cove Packing Co., a large employer in my State. That company has

spent over 19 years, Mr. President, and over $2 million in legal fees proving itself innocent of employment discrimination. In six separate reported decisions, no court has ever found the company guilty of discriminatory hiring practices, yet under this committee bill as proposed by the committee, the company would have to start the case again, but this time it would be under a new set of rules.

Mr. President, the Wards Cove case involves a dispute over the hiring of cannery workers by a fish packing company back in the 1971 salmon season. That is right, Mr. President, 1971. Since 1971, Wards Cove has successfully def ended itself in front of the Equal Employment Opportunity Commission, the Federal district court three times, the Ninth Circuit Court of Appeals four times, the U.S. Supreme Court once. Now the committee bill would require Wards Cove to begin in the litigation again, and this is simply unfair.

Mr. President, the specifics covering the chronology, I think, need to be reflected by this body. The first occurred in 1971, the short salmon season of approximately 3 months. That year, the plaintiff argues that Wards Cove committed discriminatory hiring practices in obtaining cannery workers.

Mr. President, so much has been said of the issue of Wards Cove that I think the background is appropriate to share with my colleagues. On June 27, 1972, the next year, an original complaint was filed with the Equal Employment Opportunity Commission. Then 2 years went by. In March 1974, the district court dismissed the lawsuit based on the statute of limitations. But on March 30, 1982, the ninth circuit panel reversed the district court and reinstated the law case. In 1983 the district court decided the case in favor of Wards Cove, no discrimination, Mr. President. In August 1985, the ninth circuit panel affirms the district court decision.

February 23, 1987, the ninth circuit court, the entire court remands a case to panel for a desist based on a new ninth circuit test. September 1987, the ninth circuit panel vacates the original district court desist, and remands the case back to the district court for decisions based on the new ninth circuit court test.

On June 5, 1989, the Supreme Court reverses the ninth circuit court decision and remands the base back to the district court for a decision based on the new Supreme Court test.

Here we are in July 1990 and the Congress is about to establish a whole new set of rules.

Mr. President, I say to my colleagues that enough is enough. Twenty years of litigation is enough for anyone doing business in this country or any other country. The rules of the game

should not be changed on anyone after they have repeatedly proven themselves innocent of the underlying charge. The substitute amendment by my colleague from Kansas will prevent this unfair retroactivity.

Mr. President, in conclusion, the goal of providing meaningful protections for civil rights is a goal that we all share. The substitute amendment offered by my colleague from Kansas makes this goal a reality for millions of Americans without restoring the quotas and without restoring the lawyers.

I urge this body to support this substitute amendment.

Mr. President, also not knowing of the ultimate disposition of the substitute by my friend from Kansas, I put my colleagues on notice that I have filed an amendment that is a very narrow amendment and, depending on the disposition of the substitute, it may be that I will offer that specific amendment to exempt the Wards Cove case from retroactivity and attorneys fees.

I yield the floor. I thank the Senator from Kansas for her indulgence.

Mrs. KASSEBAUM. I very much appreciate the remarks of the Senator from Alaska and for his efforts in working on this. I would like to reiterate, because somehow Wards Cove keeps coming back and coming back. People are saying we have not really done anything to address the concerns regarding the Supreme Court's decision in Wards Cove.

Mr. President, I would like to say again, yes, we have. I do not understand why there is such reluctance. I feel this is addressed by the accommodation of the language that we used that is in Griggs. That is the language. Everyone said they wanted to go back to Griggs, and with the burden of proof resting on the employer.

So I think as a matter of fact it is wrong to state that this is not a reversal of Wards Cove. It is a reversal of Wards Cove designed to use language that has been tested in the courts, has been tested, as Griggs has been tested, and I believe it provides the protection against discrimination that we are desiring to achieve.

I yield the floor to the Senator from California. I really very much appreciate his efforts in trying to shape some substitute language.

The PRESIDING OFFICER. The Chair would state that a Senator cannot yield the floor directly to another Senator. He can seek the floor in his own right.

Mr. WILSON addressed the Chair. The PRESIDING OFFICER. The

Senator from California is recognized. Mr. WILSON. Mr. President, I thank

the Senator from Kansas for her very gracious remarks. I thank her more for the leadership that she has demon-

17690 CONGRESSIONAL RECORD-SENATE July 17, 1990 strated in crafting the amendment that is pending before us.

It is a necessary amendment. It is comprehensive in its undertaking to remedy several of the faults of the underlying bill. But I think perhaps the most significant single point, certainly the one that has attracted the greatest amount of controversy and deservedly so, is the attention that her amendment has focused upon the subject of quotas.

Mr. President, much has been said this afternoon and on prior days about the contribution which lawyers have made to this legislation and to the legislative process in general. Some of it has been facetious. Some of it has been serious.

Well, risking either facetious or serious criticism, I will reveal that I am a lawyer. Seriously the point is very well taken that understanding of this legislation must not be limited to those who have passed the bar or undergone legal training. The language should be clear on its face.

If you were to go out in the street and ask most citizens what they understand a quota to mean, I think most would be able to tell you that to them a quota means selection based not upon merit or qualifications but upon the identity of the candidate, hired or appointed because of his or her membership in a particular ethnic group or their gender.

I think most people would find that offensive. The reason is because inevitably and inescapably quotas are simply not fair.

I have had the experience for 11 years of serving as the mayor of a very large, very cosmopolitan American city, San Diego. It is today America's sixth most populous city. San Diego's population includes virtually every ethnic group present in the American population. It is a source of some pride and pleasure to us in San Diego, as it is throughout California. We think that our diversity is to be not tolerated but celebrated, a source of great strength, a blessing that has brought to us the enrichment of many heritages and proud traditions. For all our understandable pride, even those of us who cherish and preserve these differences express ethnic pride, seek and cherish even more the common bond of opportunity which this Nation has offered to those both born here and to those who have struggled to come here.

We like to think that as a nation we stand for a tradition of real opportunity, under which we have been entitled to believe that men and women should be and are judged on the basis of their merit as individuals. Indeed, I think most of us were taught that-taught that in our homes, and at our dinner tables. I was.

I was taught by my parents that you judge people on the basis of what they

are, who they are, not the color of their skin, nor the ethnic group to which they belong, nor what religion they practice or fail to practice. You judge people by whether they are honest, whether they are hard-working, whether they are reliable, whether they are trustworthy as a friend. You judge them upon the basis of their skill, their ability, and their character-and whether or not they make a contribution to their society, just as I was taught that I should expect myself to be so judged, that I should expect nothing on the basis of my membership in a particular racial group or economic or social class.

I was taught that the great thing about America is that this is a country in which people are born free to make the most of the gifts that they are given by God-and that they are obliged to do so. In fact, I was told early if they are born healthy and with "reasonably good minds," as my father used to say with a wry smile, they are obliged to give something back to their community.

I have made this brief digression as background to that understanding that most of us share, that what is fair is that people be judged upon individual merit and not upon the accident of birth that places them in one ethnic group or another, in one race or gender rather than another, even in one economic or social class.

And the converse of that, of course, is that we feel that discrimination on the basis of those accidental classifications is inescapably unfair and that people should be permitted to compete and to win upon a level playing field. We have incorporated into our American tradition the understanding that there is not real opportunity, except where we have removed false obstacles to opportunity, including job descriptions that, in fact, discriminate, whether intended to do so or not; including tests for admission to schools or jobs, which do in fact discriminate, whether intended to do so or not. Civil service commissions throughout the land at the State and local level have been at pains, and quite properly so, to remove discriminatory provisions, whether they were intended to be discriminatory or whether they simply have the unintended effect of discrimination.

That is all proper, and in fact vital. That we all agree on, because it is needed ~o free us of discrimination. It is an effort aimed at achieving fairness and true, real equality of opportunity.

Mr. President, when, in fact, we make appointments based upon some standard other than merit or qualification-when we have taken pains to remove intended or unintended discriminatory prov1s1ons or requirements-then we are inevitably engaging in a new kind of discrimination and that is perhaps the most impor-

tant point addressed by the Kassebaum amendment. It seeks to replace the language that is found at page 17 of the draft bill with a different standard of proof. It requires that we use the standard contained in the Federal Rules of Procedure, Rule 301, specifically, with respect to the burden of persuasion and production; and that we not rely upon a definition of disparate impact to establish an unfair labor practice and unlawful employment practice.

The reason is very simply that the present language, whether it is intended to do so or not, inescapably will have the effect of driving employers, and particularly small employers, to the defensive tactic of hiring by quota and engaging in manifest unfairness. They will do so in much the same way that we feared small employers would engage in discriminatory hiring in order to avoid sanctions under the employer sanction provisions of the Immigration Reform and Control Act. In that case, we were troubled by the prospect of the employer being faced with two job applicants, of whom one might look and sound foreign, even though a United States citizen. What we feared was that the employer, in order to avoid the chance of being prosecuted, would hire someone who did not look or sound foreign, for fear that he otherwise would find himself at least under investigation, and perhaps being prosecuted, for having hired an illegal alien. Indeed, we were so concerned about it that the author of the underlying bill authored an amendment to the Immigration Reform and Control Act in which I joined him as a cosponsor; his amendment sought to determine after a certain period of time whether or not the Immigration and Control Act had brought about defensive discriminatory practices by small employers seeking to avoid the act's employer sanctions.

In much the same way, we need to be concerned that employers, and particularly small employers without the resources to defend themselves in court against Federal prosecution in a civil rights case, will seek to avoid prosecution by the defensive mechanism of hiring by quota. They will say, "Who need it? I can't afford it. I don't want the hassle. I'm going to do it the easy way and take the path of least resistance. And if it is unfair, I didn't create the standard. Congress drove me to it."

They are going to ask, "OK, what is the percentage of a particular ethnic group of applicants? Are they 19 percent? Are they 16 percent?" And then they are going to look at their own work force and ask, "How many do we have? Do we have that many?" And they are going to make the percentages jibe.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17691 Mr. President, what that means is

that if they are hiring on the basis of race or gender, characteristics which none of us earn but which are conferred upon us at birth by accident, then we have abandoned the basic American principle of dealing with people as individuals based upon their merit as individuals. And we have substituted instead a new standard, which is inescapably unfair.

Mr. President, we will not cure old wrongs by creating new ones. We will not cure old discrimination by imposing new discrimination. When you hire someone because of their membership in a racial group or because of their gender rather than because of merit, you are inescapably choosing them not on the basis of merit and qualifications; you are ignoring those proper standards and looking to those that are, in fact, the accidents of birth, and you cannot escape being unfair in doing so. In fact, it has been given a name-reverse discrimination, because it is a practice that inevitably results in their discriminating against another applicant.

Let us look at the language on page 17. It says under the heading, "Proof of Unlawful Employment Practices in Disparate Impact Cases." It says:

An unlawful employment practice based upon disparate impact is established under this section when a complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex or national origin, and the respondent fails to demonstrate in such practices required by business necessity.

Mr. President, what has been set up is a two-part test. In the first instance, the test is satisfied by a presumption. There is not requirement that the complaining party show that there has been a specific practice which, in fact, discriminated against him or her. It is, instead, simply presumed from the fact that there is a different percentage in the work force of the employer than that in the general population, or pool of available applicants, of the ethnic group to which that complaining party belongs.

As the mayor of San Diego, I had the responsibility to make appointments to city boards and commissions. The city council had to confirm or reject my appointments, in most instances.

Just out of curiosity, Mr. President, I went back and measured whether or not those who were part of a particular ethnic group, who were my appointees to city boards and commissions, were less or more than the percentage of their presence in the city's population.

Mr. President, I looked at the number of black men and women whom I had appointed as members of city boards and commissions, and I found that they substantially exceed-

39-059 0-91-34 (Pt. 12)

ed their percentage in the general population.

Let me ask you a question, Mr. President: Should I have instead looked not to the individual merit of each of those men and women but instead to whether or not the appointment of one more, or five more, to a particular board or commission where their service would be appropriate and useful to the city-would exceed the number represented by their percentage in the population?

If I had done that, Mr. President, then I would have been compelled not to appoint a great number of deserving men and women. More to the point, it would have been unfair discrimination not only against them as individuals but would also have deprived the people of my city of the services of very talented men and women on the civil service commission, on the park and recreation board, on the transportation board, the planning commission, on virtually every important city policy-making or advisory board.

I ask you, Mr. President, would that have been right? Would that have been fair? The answer is no. It would have been unfair both to the individuals involved and to the people of my city who depended upon me to appoint the most capable candidates, those with time, talent, energy, and concern enough to be willing to make the sacrifice from their own lives to serve on those boards and commissions.

Mr. President, I did not appoint by quota. I was free to make decisions based upon the merit of the individual applicant. But had I instead been required by law to make those appointments based upon the percentage of blacks within the population of the city of San Diego, I could not have appointed the people whom I did, at least not all of them.

Mr. President, let us come back to the bill language. Disparate impact is a phrase of art. What it really means is that under S. 2104 it is presumed that some employment practice, unspecified, but some practice by the employer in his hiring has produced a lesser percentage of an ethnic group, or other classification, in the employer's work force than the percentage found in the population of the community, or pool of applicants. That is termed a disparate impact; and from the statistical difference in percentages, it is presumed that the employer has engaged in discrimination. S. 2104 does not require the identification of a discriminatory practice as would be required under the amendment of the Senator from Kansas.

The Kassebaum amendment requires simple due process to the employer. More to the point, it will avoid the pernicious if unintended effect upon employers of driving them to engage in defensive hiring by quotas,

and the reverse discrimination and unfairness that quotas manifestly and inescapably produce.

Mr. President, some years ago, even before I was mayor of San Diego, I served in the State Legislature of California. In that brief window in the late sixties when Republicans became the majority in the State assembly, I became a committee chairman, the first chairman of the first committee in the legislature dealing with problems of housing and urban affairs. My first responsibility was to hire a chief consultant for that committee. I looked at many applicants for that job.

The applicant I chose was an extremely bright young man. He was perhaps as knowledgeable as anybody I had encountered about problems of housing, housing finance, and community development, and all of those many things, those arcane subjects upon which we were going to dwell in that new committee tasked to better the conditions of people living in cities and to provide housing legislation for the people of California.

He had been prepared both by experience in the private sector and by knowledge gained as a State official in the State department of housing and community development. When he appeared, I was delighted and quickly pirated him away from his employment within the State bureaucracy and appointed him the chief consultant to that committee.

Mr. President, he was black. As it turned out, he was the first black chief consultant to a legislative committee in the history of California. I want to emphasize the fact that I appointed him because he was the best man or woman that I could find for the job based upon his knowledge, his skill, his character, his credentials, in short, upon his merit and qualifications, and not because of his membership in a racial group.

This Nation has prized a tradition of fairness and real equality under the law. We are under a continuing obligation to assure that we have removed discriminatory provisions from job descriptions, from testing, and that we are in fact creating the kind of testing, the kind of job descriptions that are commensurate with the actual requirements of the job. That is a continuing responsibility. And we will not be fair to individual applicants or to the people to whom they provide services, unless we continue to discharge that responsibility vigorously.

But I will also tell you, Mr. President, that if we do not adopt Senator KAssEBAUM's amendment, and if instead we pass this legislation unamended with respect to the requirement of proving actual discrimination and I have not talked yet about the standard of business necessity; I will

17692 CONGRESSIONAL RECORD-SENATE July 17, 1990 not do so on this occasion, then we will have engaged in an act that is manifestly unfair. We will drive small employers to hiring by quota.

Mr. President, let me make another point: There is obvious sensitivity on this floor and on both sides of the aisle to the charge that this legislation, unamended, is a quota bill. The sad fact is: it is a quota bill and will be unless it is corrected by the amendment offered by the Senator from Kansas [Mrs. KASSEBAUM].

Let us be honest and not engage in the transparent sophistory that some other amendment can achieve that needed correction if all it does is say that quotas will not be permitted under this legislation. Mr. President, if that or some similar cosmetic offering is put before us, I would hope the Senate would have the integrity to not even consider it. We all know that no mere statement of good intentions can suffice, because it is absolutely valueless as a matter of law to alter the operative language, which I have read from page 17 at lines 15 and those following.

A statement of the good intention to the effect that nothing in this legislation is intended to create or to impose or encourage hiring by quota is utterly meaningless if in fact the operative language defines an unlawful employment practice, as it is defined at page 17, by some statistical basis which we call "disparate impact."

Mr. President, if such an amendment is put to a rollcall, I have no doubt that everyone on the floor will vote for it. But I hope that those who advance such a cosmetic device will feel a real twinge of conscience and not delude themselves. I do not think they will delude the American people that a simple expression of good intention can, in fact, operate to eliminate the inevitable effect of this legislation, of the operative language, of the words that really mean something, the language that make this a quota bill and that will, in fact, drive lawyers to advise their clients, "Don't take a chance. You'd better hire by quota. That way they can't get you."

Mr. President, there are some who have told me, "You should not say things like that. This is a civil rights bill." There are many who probably would hesitate to say what I have said for fear that by attacking these provisions, indeed by even seeking to amend what is called a civil rights bill, Senator KASSEBAUM and I may subject ourselves to the charge that our opposition, our criticism, is somehow racism.

Well, if anybody makes that charge, I want you to know I will bitterly resent it, and I will react to it strongly. I will criticize quotas or other unfair practices that deny rather than advance opportunity for individuals wherever I find them. And I will say that anybody who does not under-

stand that hiring by quotas is wrong because it is unfair does not understand the American tradition of judging people on their individual merit.

Let us not delude ourselves or seek to delude the American people by the transparent and cosmetic device of a sentence or two that declares fatuously that nothing herein shall be construed as promoting, encouraging, or imposing quotas, when, in fact, we have retained the operative bill language that will drive small employers to hire by quotas.

The only way we will avoid that terribly unfair result, Mr. President, is to adopt the language contained in the Kassebaum amendment, which requires that the burden of persuasion and production as called for under rule 301 in the Federal Rules of Procedure be, in fact, the standard imposed, so that the complaining party must prove that he or she has actually suffered discrimination and must, with particularity, link a hiring practice of the employer that is specifically alleged to have caused the discrimination.

Mr. President, I will simply say once again that we are all obliged to the Senator from Kansas for having had the courage and the leadership to do this very hard work, going . back through the cases and seeking to get right the language that is needed to cure discrimination without driving American businessmen and women into reverse discrimination, into quota hiring, into a defensive practice which is, in fact, indefensible; if not on their part, on ours.

So I thank Senator KASSEBAUM. I urge my colleagues to follow her leadership so that, in fact, this can become a civil rights bill worthy of the name, one that has broad bipartisan support in both Houses because it has been freed of the taint of being a quota bill.

Ms. MIKULSKI addressed the Chair.

The PRESIDING OFFICER. The Senator from Maryland is recognized.

Mr. PELL. Will the Senator yield? Ms. MIKULSKI. I yield to the Sena

tor from Rhode Island, another champion of civil rights.

Mr. PELL. I thank the Senator very much.

Pursuant to rule XXII, I yield my hour of debate to the Senator from Massachusetts [Mr. KENNEDY].


Ms. MIKULSKI. Mr. President, I rise in support of the bill and in opposition to the Kassebaum substitute.

Mr. President, let me say a few words first generally about the bill and then specifically about one particular concern I have related to the substitute.

First, Mr. President, in terms of quotas, this Senator opposes quotas. I grew up as a Roman Catholic in a

Polish American family and very often quotas were meant to keep my kind out. Very often as a woman I have found that there have been unofficial quotas in terms of who could get in. Whether we looked at medical schools or law schools or jobs, quotas often were a tool that kept people out. This is one Senator that believes that quotas do not solve anything.

I do believe that we have received legislative clarification time and time again on this bill that this bill does not mandate quotas. So I think we need to be clear about that. The substitute, no matter how well intended by my sister colleague from Kansas in terms of the quota clarification, is not necessary.

The second point I want to make, Mr. President, is maybe if we had an equal rights amendment we would not have some of the confusion arising out of this bill. During both my time in the House of Representatives and even when I cosponsored the introduction of the ERA with my colleague Senator KENNEDY of Massachusetts, I was told we do not need an equal rights amendment because those who are for equal rights say, "Why not change one law at a time?"

Well, now, Mr. President, here we are changing not only one more law in terms of civil rights, but we are faced with trying to change Supreme Court decisions in the absence of the kind of constitutional amendment that ERA would have provided in terms of women. I hope that those who might oppose this bill would reexamine the equal rights amendment as an alternative that they could then join and cosponsor. We welcome all who would pursue that concept.

Specifically, on this bill, I have conferred with my colleague, Senator NANCY KASSEBAUM, because she and I share so many goals and bipartisan agreements on many issues and I wondered why the substitute was being offered. I know her great concern on this is in some way to curtail needless litigation, and she will speak for herself on that. But I know her intent is let us not have litigation for litigation sake, let us have litigation to accomplish a remedy or to right a wrong. I support that.

Yet at the same time I must bring to her attention and to the U.S. Senate's attention that her substitute fails even to solve all the devastating problems caused by the Patterson decision and instead would preserve part of the harm caused by that decision.

Let me be specific and go to section 10 of the substitute. That section of the substitute seeks to overrule the Supreme Court's decision in Patterson versus McLean Credit Union, 109 Supreme Court 2363, 1989 and to restore the prohibition against all racial dis-

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17693 crimination in the making and carrying out of contracts in 42 U.S.C. 1981.

Unlike S. 2104, however, the substitute fails explicitly to prohibit discrimination in "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." It prohibits discrimination in the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. That is what the law is all about, that when you have a legal agreement do not disagree in a legal agreement.

In fact, the substitute is even weaker in this respect than the Bush administration bill, S. 2166, which specifically covers discrimination in the setting of the "terms and conditions" of a contract as set out in section 2. Since the Patterson decision specifically ruled that 1981 did not apply to problems arising from the "conditions of continuing employment" in ruling that racial harassment was legal under 1981, 109 Supreme Court decision at 2372, a court could also interpret the substitute and this is crucial, a court could also interpret the substitute to permit racial harassment under the 1981 ruling. The substitute also contains no transition or other provisions to provide any remedy for the hundreds of bias victims who have already suffered as a result of the Patterson decision.

So, Mr. President, I just wanted to make that point, that the Senator from Kansas is well intended in this substitute, but the unintended consequences of her substitute could cause more harm than this bill is trying to seek to remedy and that we are trying to remedy now because of the Supreme Court's decisions. I hope that tonight or sometime in the future we will pass this Civil Rights Act and that we will defeat this substitute and continue our pledge to all Americans that we are the land of the free and the home of the brave, and the law protects us.

I yield the floor. The PRESIDING OFFICER. The

Senator from Kansas. Mrs. KASSEBAUM. Mr. President, I

very much appreciate the comments of the Senator from Maryland. As she said, she and I have shared many, many interests. I am not quite certain what the Senator from Maryland is ref erring to, Mr. President, on Patterson. Let me just reiterate what the substitute does regarding that.

Section 11 of the substitute codifies the broad construction given to 42 U.S.C. 1981 by most lower courts, allowing plaintiffs to sue under this statute for on-the-job racial harassment and other racially motivated violations of contracts.

It also codifies the Supreme Court's 1976 decision in Runyon versus Mccrary, reaffirmed by the Patterson

court. That section 1981 prohibits discrimination in private contracts.

So, at least as I read it, it certainly does not weaken protections prior to Patterson. What, indeed, we have not done is expand remedies, however, on and beyond that, to include punitive damages and/or jury trial remedies for other than racial discrimination. That is true.

But we have provided additional remedies by the judge being able to make a judicial decision regarding discrimination for all other forms other than the racial discrimination so covered by section 1981, in which an award can be made of up to $100,000.

So, indeed, as I mentioned earlier, I believe as a matter of fact it is a worthy substitute in that it would provide a speedy way to address discrimination on and beyond the racial discrimination that was addressed in the earlier decisions. I am not sure if that is an answer to the question of the Senator from Maryland. I know it is one that probably she would, obviously, not agree with. But I hope it does at least explain how we reached the decision that we did regarding the substitute language.

Mr. President, I yield the floor. The PRESIDING OFFICER <Mr.

LEVIN). The Senator from Montana. Mr. BURNS. Mr. President, I yield 1

hour of my time to the manager of the bill on the minority side, Mr. HATCH.


Mr. BURNS. I yield the floor. The PRESIDING OFFICER. The

Senator from Wyoming. Mr. SIMPSON. Mr. President, the

Republican leader will return to the floor in a few moments, and will provide guidance as to, at least from the perspective of our side of the aisle, what is the best way to proceed. That will be in just a few moments.

But I would like to just reflect on the activities of the day for just a few minutes. This is really a remarkably strange place. If you vote this way or that way, for example, on something as sensitive as employer sanctions; or if you vote this way or that way on sanctions against South Africa; or if you vote this way or that way on a "civil rights bill," if you are not on the "rights side," you are considered by many special interest groups to be a racist.

That, really, is one of the most devious things that I have seen in this place. You can be involved in a goodfaith debate on one side of the issue or another in the sensitive, sensitive area of race relations and civil rights. If you are on the "wrong" side, then you are considered not "pure" enough for the civil rights groups. I have seen them disassemble people. I watched them disassemble Robert Bork in what still will go down as one of the black-

est marks in their particular exercise of political skill and endeavor.

It is unfair to say that those of us who do not embrace their particular scenario are racists. I am offended by that. All of us should be off ended by that. This does not have anything to do with racism. It has to do with racism in reverse.

Is this country going to get into a situation where we forget that we are a pluralistic society, with a public culture, a common flag, and a common language? Those are not things that we should mock. Those are real things.

Go look at other countries around the world who are grappling with that. India has 18 languages recognized in its constitution. I do not think any of us would want to say that they have a model of government, even though people from India are remarkable and they enrich our society.

Belgium, Sri Lanka, and Canada are now grappling with such things. Many problems develop from a quickness to label some idea or some person as a "racist." Or to say that a country is filled with victims of racism.

There was a marvelous op-ed piece by William Raspberry of the Washington Post, a man for whom I have the greatest respect. He was a great, knowledgeable follower of illegal immigration reform. He said in effect that this country will just get deeper and deeper into troubling things when we just think of one group or another of people as being victims. The civil rights movement worked because of cooperation between white people who joined with black people to get rid of some terrible things. That was the theme of his op-ed piece, and that is right. Whites and blacks joined constructively together with their colleagues.

Now we have turmoil on college campuses that has to do with racism. The racism is connected with victimization. And we find whites who do not join the blacks to assist in overturning egregious things. They think: I lost my job because this person got it. Or: I did not get admitted to college because that person got in, and they are not as qualified as I am. We get these things cooking in America, and the average Joe-bless him, because this country could not function if it were not a fact that the average person is smarter than the average politician and that is really true. They have a lot more common sense, and they come with good motives.

They say: Hey, I am pretty qualified for that job, and I think I ought to have it. And then to see someone else get it on the basis of a quota system. We have all heard that old saw about Hubert Humphrey standing right here on this floor and saying that if the Civil Rights Act established a quota

17694 CONGRESSIONAL RECORD-SENATE July 17, 1990 system, that he would eat the statute book.

They asked him again: "Senator Humphrey, I know you would not be involved in a quota system." And he said, "I would not have any part of it. I am here to tell you right now that is something I do not want to be involved in."

Yet that is exactly where we are headed here. Supporting this bill may be good fodder. It makes good stuff "inside the Beltway." It can make you very popular, especially because of the biases of many of the media. Those who are biased will write about your support in a laudatory form.

But back at the old home base a guy will say: Hey, how come that is? How come I cannot compete one-on-one any more? Why is that? Who did this? Is this your work?

I think the average American is a very important person to keep in mind, here, as we deal with a civil rights bill that is blown all out of proportion relative to what the Supreme Court really did, which was that they simply interpreted the law. Check with any member of the Supreme Court. We can do that. Even though we have a separation of powers, there is nothing wrong with going visiting with one of your colleagues on the U.S. Supreme Court and saying, "What were you up to?" And ask them; ask the ones who wrote the dissent; ask the ones who wrote the majority opinion.

They look at this debate-some parts of it-and have to just be stunned: What are you doing about Wards Cove and what are you doing to restore Griggs, and why does your bill not restore it?

I mean, it is really an extraordinary venture. I just say I am appalled that in each and every case, the minions of the civil rights movement really believe in many ways that they have all the solutions, and that those of us who do not stick with their position are among those who are out of touch and are the "unwashed" of America.

All I am saying to my colleagues is that there is nothing in my background that indicates one single shred of racism. I do not like the connotation. I think such labels are a very poor way to sell your position. I think you lose a lot of strength and I think you lose a lot of authenticity. You also lose a lot of credibility when those on the other side of the issue are simply pegged in an arrogant, cynical, sarcastic way as just simply being "small minded" or "racist."

They are going to have to do a lot better than that in the future in this country if we are going to survive. Let's not pretend that this country does not do an awful lot of wonderful things for minorities. Go look at the statute books if you do not believe that.

The activists for this bill are clever, they are crafty; and they are manipulative. They know how to use the media. They know how to crank it out by the metric ton. Many of them do a disservice to this country. I think we ought to keep our eye carefully on them as they do their work.

I watched them bring down Bill Lucas, a black man who "wasn't sensitive enough for them." How about that one? If that is not arrogance and cynicism, I do not know what it is.

And then Clarence Thomas came before them. His nomination unnerved them because they had already lost a lot of credibility when they said that Lucas was "not sensitive enough" despite the fact that he grew up in a ghetto and clawed his way to the top. He just happened to be a conservative.

"Do your work," I say to them. Protect minorities. That is your job. That is the essence of the order. But the unfortunate other part of their agenda is simply to "do something" to this conservative or do something to this little group who have a different view on civil rights and try to show, if they can, that detractors are racist if they do not support their position.

I think it is unbecoming and it is certainly repugnant to watch. I think those people are losing a great deal of credibility. They might get the whole package here, but let the American public decide in a year or two what was the package they got. You are going to find a lot of people who are just going to be appalled when they put their attention to this measure. I think it is going to come out of here in a similar form. Let the American public decide but let us not hear cries of racism.

Take a look at the recent letter from Chairman Brown of the Democratic National Committee, his fundraising letter. This fundraising letter sent just a few days ago from Ronald Brown, chairman of the Democratic National Committee, calls JESSE HELMS, Senator HELMS, our colleague, a bigot, and a racist and antisemitic.

Why must we listen to this guff -from people who come and give us lectures on what we are doing especially when we do not support their position?

He lumps together Mr. Duke, who has already been repudiated by the Republican Party. Mr. Duke of Louisiana is not a Republican; he has been repudiated by the Republican Party. In this marvelous message that Ron Brown sent out to terrify the people of America and equate the Republican Party with racism, antisemitism, and hate mongering, we are also told about another remarkable person who is running for the governorship of Texas as a Republican. He made some very unfortunate statements, in my mind, about women. They have those in the letter, too. They give us lectures on

human rights and civility and nurture of our fellow man. But listen to this: "Helms has made a career out of bigotry." I do not believe that and everyone who knows JESSE HELMS knows that is a lie.

He is up for reelection • • • and 1990 is the best chance we ever had to get Helms and his hateful brand of politics out of the United States Senate.

David Duke will carry his blatant band of racism, antisemitism and hate mongering to the floor of the United States Senate.

Well, if he does, it will not be on our party's ticket. Somebody else can have him. Somebody else must have claimed him; we did not.

It goes on to say: If we squander this opportunity, Helms

will always be there when apartheid needs a friend in the Senate. He'll always have an arena where he can score cheap political points at the real health expense of men and women with AIDS. And if a woman seeks a safe and legal abortion, Jesse Helms will be there to kick her into an alley.

This is some of the worthy band that give us lectures about civility and kindness and caring and nurturing of our fell ow man.

Then the letter says more: If Duke, Helms, Williams and other candi

dates like them win, those victories for intolerance will have a frightening impactnot just on our politics, but on the whole life of our Nation.

And then, finally, I guess they get to the nub of things, which is pure old, · good old politics, and trying to tear into everybody they can get their hands on that might have a different viewpoint than the liberal one:

The possibility that they could be in control of the Senate as the part of a new Republican majority is too dangerous to even imagine.

Their strategy is to lump them all in the same arena, I guess. They do not like to have discussions about those who might just happen, in good faith, to have a different view of quotas and remedies which under this bill is so appalling and so stunning that no employer would do anything but establish a quota system of hiring.

So maybe we can try to keep that in mind. I hope so, as we deal with a civil rights bill which has a name attached to it with that particular nomenclature and definition. It was really an attempt to overturn some rather thoughtful U.S. Supreme Court decisions and situations which have been elevated far, far beyond their original intent.

Everybody says all they want is to go back to Griggs and have no more quotas. They had their opportunity plenty of times. But I certainly hope at least those of us on this side of the aisle and the people in America do not have to listen to this "kinder and gentler" kind of information from the Democratic National Committee, coupled with their natural constituencies,

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17695 such as the Leadership Conference on Civil Rights, who are telling us that we are the bigoted and the racist in this society when it is they who are pushing this kind of stuff around the United States of America.

So I hope we will keep our eye on the rabbit, as we continue to do our work in this remarkable arena. I just wanted to say I think it is a pretty poor way to do business when you simply use emotion, fear, guilt, and racism instead of plain old facts to do your work.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KENNEDY. Mr. President, I will just make some brief comments on the substitute and welcome any opportunity to have these comments elaborated on or questioned by the Senator from Kansas.

There are a number of reasons why I think the substitute should be rejected, quite frankly, Mr. President, but I will just mention these.

First, included in the substitute there is no clear rejection of the reasoning in the Patterson case. For a period of 12 or 14 years, prior to the Patterson case, section 1981 had been applied in contracts, not only to the contracting-the hiring-but also to discrimination on the job. Section 1981 also included promotions and firing.

And then the Patterson case, the facts of which are truly distressing beyond words in terms of the indignities, the racial indignities that this individual experienced on the job. I ask unanimous con cent to include ref erences at this point in the RECORD.

There being no objection, the ref erence was ordered to be printed in the RECORD, as follows: STATEMENT OF BRENDA PATTERSON, WINSTON

SALEM, NC Ms. PATTERSON. Thank you, Senator. I ap

preciate your having me here to give my statement. And at this time I am very nervous, so I will read my statement.

The CHAIRMAN. All right. Ms. PATTERSON. And I also want to intro

duce my husband, Marshall. The CHAIRMAN. Marshall, we are delighted

to have you as well. Ms. PATTERSON. My name is Brenda Pat

terson. I am from Winston-Salem, NC. From 1972 to 1982, I worked at McLean Credit Union, and throughout that time I was treated much worse than white employees. I was humiliated and insulted by racist comments. I was never promoted and never paid what white employees were paid. And in the end, I was laid off while white employees with less seniority kept their jobs.

These things happened to me because I am black. I went to court because I thought this was wrong, and my case went all the way to the U.S. Supreme Court.

Last June, the U.S. Supreme Court said I did not have a case, and all my claims have now been dismissed.

It has been 18 years since I started working for McLean, and I have nothing to show for it.

I would like to describe just a few examples from my case so you can see why the

law should prohibit the things that happened to me.

McLean Credit Union is an office that provides savings and loan services for employees of McLean Trucking Company. When I started in 1972, I was the only black employee in the entire office. During the interview before I was hired, I was told by the president of the credit union, Robert Stevenson, that I was going to be working with all white women and they would probably not like me because they were not used to working with blacks.

As I quickly found out, it was Mr. Stevenson and his managers instead of my coworkers who did not like blacks.

I was a college graduate, which many of my white coworkers were not, and although I accepted an entry-level file clerk job, I made it clear I was interested in advancing to higher-level positions in the office.

I started doing primarily filing work and for 10 years I was not promoted once. Secretaries and accounting clerks were above me, and these were jobs I could have performed easily. I was actually told to dust and sweep the office, even though we had a janitor every day and no white employees were ever told to do this.

The president always assigned more and more filing work to me, and there were times when I was responsible for 20 different filing jobs in the office, such as filing new loans, pulling paid loans, typing and mailing cancellation letters, filing microfilmed checks, filing daily IBM branch sheets, shredding canceled checks, and so forth.

I was even told to do filing for the secretaries, which they were responsible for themselves. But no one was ever assigned to help me in the same way.

Unlike the white workers, when I came back from vacation, none of my work had been done, and I had to catch up on everything. Even my supervisor did a formal review and found that I had too much work to do. He told Stevenson about it, but rather than promoting me for doing the work, the president just gave me more work to do and told me several times that blacks are known to work slower than whites by nature.

I was humiliated. I was nervous all the time. I lost sleep. I worried and dreamed about work and completing jobs. I cried constantly. I felt like I was being used by the credit union and being harassed and downgraded.

It was well known that Mr. Stevenson, who made all the important decisions in the company, was hostile toward blacks. One time, a supervisor recommended a black friend for the position of computer operator. And after meeting the applicant, Stevenson told the supervisor, "Why in the hell didn't you tell me he was black?"

When the supervisor said he did not think it mattered, Stevenson said, "Well, it does. We don't need any more problems around here. We will interview this person, but we will not hire him. We will search for additional people who are not black"

A least-qualified white was hired for the position.

During the 32 years that Stevenson worked at McLean Credit Union, there were a total of only three black workers, and all were given filing jobs.

This racial hostility affected my job in every way. Mr. Stevenson frequently stood near my desk and simply stared at me for several minutes at a time. He never did this to the white workers. When white workers made mistakes, he would say at staff meet-

ings, "This mistake was made." But when I made a mistake, he would tell the whole staff, "Brenda made this mistake," even though I had been told about it before the staff meeting.

I was never promoted in 10 years, but white workers with less education, less seniority, and less experience than I had were routinely promoted and hired into secretary and bookkeeping positions above me.

One time, a white woman with less experience and qualifications than I had was given on-the-job training and promoted to an accounting position, even though her supervisor rated her work below average since she did not grasp accounting functions and stated she was more interested in crocheting and reading magazines than doing her work.

I was denied pay increases that were given automatically to white employees. One time this happened, they said it was because of my attitude problem. But only a month before this increase was denied, my annual evaluation said, "Actually goes out of her way to be pleasant with everyone."

That same year, 1982, I was laid off, even though white employees with less seniority were retained. I am not a lawyer. I do not pretend to understand the technicalities of the U.S. Supreme Court decisions in this case. But I always believed that if a black man or woman was mistreated because of race, we could go to the Federal court house and justice will be done.

I do not expect that you are going to decide my case or make the credit union pay me damages. All I want is a chance to tell my story to a jury and to have it decided fair and square, not on a bunch of technicalities but on whether Mr. Stevenson discriminated against me. I do not think that is too much to ask.

The CHAIRMAN. Well, thank you very much. That is an enormously tragic story. I think that that thing happens in this country has to make all of us feel a sense of shame that that kind of condition exists in our society. Tragically it does in too many instances, and, hopefully, at least we will able, with this legislation, to try to address that kind of situation.

Tell me, after you had worked 10 years and endured that kind of real harassment and bigotry, how did you feel when the U.S. Supreme Court told you that the law didn't apply to protect you?

Ms. PATTERSON. I was very disappointed and hurt because after what I went through and suffered, even I couldn't go to the U.S. Supreme Court or go to any court and be satisfied that I could get help. And that was the only place I knew where I could go was to the courts.

The CHAIRMAN. There are people-lawyers, professors-that say that the result of that decision wasn't really a setback of civil rights. What do you say to them?

Ms. PATTERSON. It is a setback because they are using my case now as an example, and many cases, discrimination cases, have been lost because of what they've done to me, and if we can't go to court to get satisfaction, where can we go?

The CHAIRMAN. Do you think it sends a message one way or another to employers that they don't have to be sensitive to these kinds of issues?

Ms. PATTERSON. Yes, it sends a very negative message to them.

The CHAIRMAN. And what do you think that message is?

Ms. PATTERSON. The message is that, "We can do anything or treat minorities and blacks any kind of way because we see now

17696 CONGRESSIONAL RECORD-SENATE July 17, 1990 that the courts are not going to do anything about it and we have the right to treat them as they did back in slavery times."

The CHAIRMAN. That is wrong. It certainly is.

Well, the best way that we can express our appreciation to you for coming up here is to pass this legislation, and we are going to do everything we can to do it right away.

Ms. PATTERSON. Thank you. The CHAIRMAN. And we share the sense of

indignity and sadness which you have endured, but we also share enormous admiration for you for staying with this despite all of these difficulties and for your willingness to come up here.

I can't believe that the American people who have heard that very simple and eloquent and tragic statement, that they wouldn't demand that this be done virtually immediately. We will do everything we can, and I believe we are going to be successful, and when we are, an important part of the credit will be yours.

Ms. PATTERSON. Thank you, Senator. Mr. KENNEDY. The Patterson deci

sion effectively said as long as there was not discrimination in the actual hiring, it really did not make much difference what else happened to that individual after they were in the door. They could be subject to all kinds of hassles, all kinds of harassment, all kinds of discrimination. The logic of that decision absolutely baffles me.

Now, we put the law back to what it was prior to Patterson in our substitute. The Bush administration has also adopted virtually similar language in their own proposal, to overturn Patterson.

I really do not believe that the provisions which have been included in Senator KASSENBAUM's substitute give the kinds of protections which have been guaranteed either in our own substitute or with regards to the Bush administration, No. 1.

Second, with regard to the Wards Cove decision, a major element of this decision that is of concern to the Senate is where the burden of proof lies regarding justifying employment practices. In over 200 cases since Griggs, the burden of proof had effectively been on the employer, and then the Ward Cove decision changed it. Quite frankly, it would make it extremely difficult, extremely costly for an individual to be able to prevail in court in a claim that a practice or perhaps a group of practices, which the individual did not even know about, caused a disparate impact. I believe that the Bush administration, as well as many of those here on the floor that have not even been supportive of our proposal, have stated is that they want to return to the Griggs decision. As pointed out by the Senator from California, however, the references in the substitute amendment to Rule 301 of the Federal Rules of Evidence effectively preserve the Wards Cove findings about where the burden is.

That is my reading. That was apparently stated by the Senator from California, and it effectively undermines

what has been the stated objection of the Bush administration, as well as many of those who have not been satisfied with our business necessity test but still understand the importance of the burden of proof, No. 2.

Third, Mr. President, with regard to damages, by permitting the judge to make that judgment and decision, the Kassebaum substitute raises the most extraordinarily constitutional issues. I do not know of another statute on the books which would permit this.

It was so interesting that even under the Reagan administration, when an administrative law judge made a decision, the suggestion of Brad Reynolds and Ed Meese was that the parties are entitled to a jury trial. And yet this substitute effectively permits the judge to make those kinds of judgments.

I believe I understand what is being attempted here to get some kind of limitations on the damage proposal. I understand that, and this certainly would be some progress, if it had the jury trial-over the current situation where effectively women are not treated the same as minorities, in terms of compensatory and punitive damages. It was certainly part of the purpose of our legislation to insist that there are no second-class citizens in our society. When we are going to have the remedies for minorities, we must have them equally for women and the disabled; our objective in this bill was parity. That has not, however, been a part of the administration position and proposal. The way this has been treated here, however, it raises serious constitutional questions.

This amendment would endorse and codify all or part of each of the restrictive Supreme Court decisions which S. 2104 was introduced to overrule. It would also fail to provide fair remedies for all victims of intentional job bias, relegating women and religious minorities who are bias victims to second-class treatment. It is virtually identical to the earlier-circulated "opposition substitute" except for some changes to the Wards Cove section, which omits some of the problems in the earlier version but would still essentially codify Wards Cove. As explained further in the enclosed detailed analysis:

< 1) Wards Cove: The amendment would adopt rather than overrule the damaging Wards Cove holding with respect to burden of proof, definition of business necessity, and group of employment practices. It also requires plaintiffs to prove that employment practices "cause" rather than "result in" a disparate impact, which could be interpreted to impose additional burdens on plaintiffs.

(2) Price-Waterhouse: The amendment requires that plaintiffs prove that race or other prohibited motive was a "major contributing factor" in an employment decision, which is even more restrictive than Price- Waterhouse and could actually allow

employers to make job decisions based partly on bias.

(3) Wilks: The amendment permits disruptive collateral attacks on court-ordered remedies and settlements in bias cases under virtually all the same circumstances as Wilks, even by those who sat on their hands and failed to take any action when the remedy was entered, except where the third party had actual notice and was actually working for or had applied for a job with the employer.

(4) Patterson: The amendment could be interpreted to codify Patterson's holding that Sec. 1981 does not prohibit on-the-job racial harassment, since it fails explicitly to prohibit bias with respect to the "terms and conditions" of a contract as does S. 2104. In fact, it is even worse than the Bush Administration bill, which expressly covers bias in the setting of the "terms and conditions" of a contract. It also provides no remedy for the hundreds of bias victims who have already suffered due to Patterson.

(5) Lorance: The amendment preserves the negative effects of Lorance in unfairly limiting the time within which employees may challenge discriminatory job rules not related to seniority systems, since the amendment is limited to seniority systems.

(6) Damages: The amendment limits additional relief to Title VII victims to up to $100,000 in "equitable" relief, which can only be awarded by a judge and where back pay is not available. This would probably be unconstitutional, would continue to deprive some bias victims of meaningful relief, and violates the important principle of ,fair treatment for all bias victims. It would send the very dangerous message that some kinds of discrimination are less serious and less deserving of full relief.

(7) Other: The amendment omits other key provisions in S. 2104, including: 1> the provisions which direct the courts to interpret civil rights laws broadly and make clear that the Court's recent decisions were incorrect; 2) the provision which adopts a statute of limitations for Title VII more comparable to that for Section 1981; 3) the provisions which clarify and stren)fthen the attorneys' fees sections of Title VII <except for the expert witness fees provision of S. 2104>; 4) the provisions allowing interest and extending the statute of limitations in suits against the federal government; 5) the provision that ensures that the bill will not affect the legality of affirmative action and thus will not call for quotas; and 6) the transition provisions ensuring that bias victims who have already suffered as a result of the Court's restrictive decisions can obtain relief. DETAILED ANALYSIS OF KASSEBAUM AMENDMENT

2131

.Although Amendment 2131, the Kassebaum substitute for S. 2104, purports to strengthen federal job bias laws and restore the law disrupted by recent restrictive Supreme Court decisions, it fails completely to do so. In fact, in several key areas, the substitute endorses and adopts the restrictive Court decisions or makes the law even worse. In a number of areas, the substitute is more harmful to civil rights protections than positions taken by the Justice Department under the Reagan Administration. The amendment differs in a few respects from the earlier "opposition substitute", as noted below in brackets, but continues to contain virtually all the serious problems noted in the earlier analysis of the substitute. The amendment should be rejected.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17697 < 1) The substitute would adopt rather

than overrule the damaging Wards Cove decision. In fact, it would cause even more harm to workers victimized by discriminatory job practices than the position taken in Wards Cove by the Reagan Justice Department.

In his opinion for a unanimous Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 0971), Chief Justice Burger ruled that where job practices have a significant discriminatory impact on minorities, such practices are illegal unless the employer can prove that they are justified by "business necessity." This important principle, which helped protect against systemic job bias for over 18 years, was reserved by the 5-4 decision in Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 0989>, and would be restored by S. 2104. Although the substitute purports to adopt the Griggs rule, it actually contradicts Griggs and would codify Wards Cove itself.

First, the substitute effectively codifies the rule in Wards Cove that the victim of discrimination must prove that a discriminatory job practice is not justified by business necessity. Although the substitute appears at first glance to be similar to S. 2104 by stating that an employer must "demonstrate" business necessity once disparate impact is shown, it differs from S. 2104 in a key respect by stating that the term "demonstrate" is to be defined "in accordance with Rule 301 of the Federal Rules of Evidence." Substitute, sec. 3(m), 4(k)( 1 ). FRE 301 states, however, that the burden of persuasion in a case remains on the plaintiff or the party on whom it was originally cast "throughout the trial" unless explicitly provided otherwise by law or court rule. A court could thus easily construe the substitute to provide that even after a plaintiff proves discriminatory impact, the defendant only has the obligation to go forward with evidence, and that the burden of proof remains with the plaintiff at all times on the issue.

This is directly contrary to Griggs, which held that the employer has the "burden of showing" business necessity for discriminatory practices once discriminatory impact is shown. 401 U.S. at 432. It is even contrary to Justice Department regulations and to the position of the Reagan Justice Department, which recognized as recently as 1987 that the employer bore the burden of proof as to business necessity. See S. Rep. No. 586 at 17. CNOTE: the Kassebaum amendment does not contain the language in the opposition substitute specifically requiring that plaintiffs prove that a practice is not justified by business necessity.]

Second, the substitute essentially codifies Wards Cove's severely weakened definition of "business necessity." Under Wards Cove, even a practice which excludes virtually all women or minorities from a job is justified if it significantly serves any "legitimate employment goals." 109 S.Ct. at 2125-26. As even conservative appellate court judge Richard Posner has recognized, this significantly "dilutes" the Griggs rule, which required a "showing of necessity" for discriminatory job practices. Allen v. Seidman, 881 F.2d 375, 377 <7th Cir. 1989). Nevertheless, the substitute adopts the Wards Cove and not the Griggs standard, stating that a discriminatory practice need only manifestly relate to the employment in question or significantly serve any "legitimate employment goals." See Substitute, sec. 3<n>.

Third, the substitute adopts the Wards Cove approach of preventing a challenge to groups of employment practices which have

a discriminatory impact. Prior to Wards Cove, as the Reagan Justice Department itself argued in its own brief in the case, where multiple job practices "combine to produce a single ultimate selection decision and it is not possible to challenge each one, that decision may be challenged <and defended) as a whole." See S. Rep. No. 586 at 21. Wards Cove ruled that even in such a case, however, a plaintiff must show that each individual test or practice has a disparate impact. See 109 S.Ct. at 2125. This is an impossible burden in many cases; for example, Justice Stevens noted in Wards Cove itself that such separate evidence did not exist. Id. at 2133 n.20. Nevertheless, the substitute conforms with Wards Cove by providing that a combination of practices may be challenged only where a bias victim can show that "each employment practice in such combination has contributed" to the disparate impact, contrary to the pre-Wards Cove rule accepted even by the Reagan Justice Department. See Substitute, sec. 4(k)(l)(B).

The substitute also contains other language which could be interpreted by the courts to create restrictions on disparate impact cases which are not even found in Wards Cove. The substitute states that a plaintiff must prove that an employment practice "causes" a disparate impact in order to establish a prima facie case. Substitute, sec. 4(k)(l) <A> and . This is inexplicably different than S. 2104, which states that the plaintiff must prove that an employment practice "results" in a disparate impact, in accord with the language in Griggs which prohibits any practice which "operates" to have a disparate impact without business necessity. S. 2104, sec. 4(k)(l)(A) and ; Griggs, 401 U.S. at 431. Although "causes" could be interpreted similarly to "results", it could also be interpreted to impose a higher burden of proof; for example, it could be construed to require a plaintiff to prove that the discriminatory practice was the underlying "cause" of the disparate impact and that factors such as education did not play a role. This would be directly contrary to Griggs itself, which held that a high school diploma requirement not justified by business necessity was discriminatory, even though the underlying cause may well have been that blacks had "long received inferior education in segregated schools." 401 U.S. at 430. [NOTE: unlike the earlier "opposition substitute," the Kassebaum amendment does not limit disparate impact analysis to hiring and promotion cases and does not state that plaintiffs must prove that discriminatory practices "caused the exclusion" of bias victims "because of their race, color, religion, sex, or national origin" .J

In contrast, S. 2104 contains none of these problems. It restores the Griggs principle that employers must show that discriminatory job practices are substantially and demonstrably related to effective job performance or another compelling business objective, and permits a challenge to a combination of practices resulting in job decisions where available evidence does not permit individual practices to be challenged separately.

(2) The substitute would be even more restrictive than the harmful Price- Waterhouse decision. In fact, it could actually allow employers to make job decisions based partly on discriminatory reasons.

An important principle of job bias law, recognized even in the Supreme Court's decision in Price-Waterhouse v. Hopkins, 109

S. Ct. 1775 0989), is that a job decision is illegal whenever race, sex, or other prohibited grounds played a "motivating part" or was a "motivating factor." Id. at 1790, 1795. Price-Waterhouse overruled prior law, however, by stating that in such a case, a job decision is legal where it is also motivated by other nondiscriminatory reasons, contrary to the position taken by the Reagan Justice Department itself in Price- Waterhouse. See S. Rep. No. 586 at 23. S. 2104 would restore the law by providing that a job decision is illegal where race, sex, or another prohibited ground was a contributing factor, even where other nondiscriminatory reasons may also have played a role.

Under the substitute, however, a job decision is illegal only where race, sex, or another prohibited ground was a "major contributing factor" where other factors were also involved. Substitute, sec. 5<a><l>. This could be interpreted as even more restrictive than Price- Waterhouse, and could permit employers to make job decisions based partly on explicitly biased reasons, as long as discrimination was not a "major" motivating factor.

(3) The substitute would permit disruptive third party attacks on court-ordered remedies and settlements in job bias cases even by parties who sat on their hands and failed to take any action when the remedy was initially entered.

Virtually all of the harm caused by Martin v. Wilks, 109 S.Ct. 2180 0989), would be preserved by the substitute. Under Wilks, even years after a job bias remedy has been ordered or agreed upon, a third party may attack it, even if he knew all about the remedy and did nothing at all about it when it was initially entered. The same is true under the substitute, unless the third party had actual notice and was actually working for the employer or had applied for a job with the employer at that time. See Substitute, sec. 6.

Prior to Wilks, settlements or orders in bias cases could generally not be attacked later by any third parties. See Wilks, 109 S.Ct. at 2185 & n.3. S. 2104 would permit later challenges where adequate notice or representation was not provided at the time that the remedy was initially entered, encouraging early notice and resolution of any objections to such remedies while providing the stability necessary to serve Congress' purpose of promoting settlement and early resolution of discrimination claims.

(4) The substitute fails even to solve all the devastating problems caused by the Lorance and Patterson decisions, and would instead preserve part of the harm caused by these decisions.

Section 7 of the substitute seeks to overrule the Court's decision in Lorance v. AT&T Technologies, 109 S.Ct. 2261 0989), which unfairly limited the time within which employees may challenge discriminatory job practices. As with the Bush Administration's bill, however, the substitute is limited to challenges to discriminatory seniority systems. This ignores the fact that the restrictive rule in Lorance has already been applied beyond seniority systems to other types of discriminatory job rules, such as promotion policies. See S. Rep. No. 586 at 28. Unlike the substitute, S. 2104 would completely remedy the problems caused by Lorance.

Section 10 of the substitute seeks to overrule the Court's decision in Patterson v. McLean Credit Union, 109 S.Ct. 2363 0989), and to restore the prohibition against all racial discrimination in the making and car-

17698 CONGRESSIONAL RECORD-SENATE July 17, 1990 rying out of contracts in 42 U.S.C. 1981. Unlike S. 2104, however, the substitute fails explicitly to prohibit discrimination in the "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." In fact, the substitute is even weaker in this respect than the Bush administration bill, S. 2166, which specifically covers discrimination in the setting of the "terms and conditions" of a contract. S. 2166, sec. 2. Since Patterson specifically ruled that 1981 did not apply to problems arising from the "conditions of continuing employment" in ruling that racial harassment was legal under 1981, 109 S. Ct. at 2372, a court could also interpret the substitute to permit racial harassment under 1981. The substitute also contains no transition or other provisions to provide any remedy for the hundreds of bias victims who have already suffered as a result of Patterson.

(5) The substitute fails to provide fair remedies for all victims of intentional job bias and relegates women and religious minorities who are bias victims to second-class treatment.

A key purpose of S. 2104 is to provide fair and effective relief for all victims of intentional discrimination by adding a damages remedy to Title VII which is equivalent to the remedy available under 42 U.S.C. 1981. This will ensure that damages are available to victims of intentional discrimination on the basis of sex, religion, or national origin just as they are available to victims of intentional race discrimination in appropriate cases.

Section 8 of the substitute purports to address this problem by permitting judges to award up to $100,000 as an "equitable" remedy in cases where back pay cannot be awarded. This is inadequate for several reasons. First, the section would probably be held unconstitutional. Although it attempts to characterize the relief equitable in nature, the relief so closely resembles damages that a court would probably rule that a defendant or a plaintiff could not be deprived of the right to trial by jury guaranteed by the Seventh Amendment, despite the section's attempt to do so.

In addition, the section would continue to deprive some bias victims of meaningful relief. For example, no damages-type relief would be available at all where any amount of back pay can be provided. This would mean that even a de minimis back pay award to a sex discrimination victim could deprive her of all compensatory damages, no matter how significant. In addition, in those rare cases where an award of more than $100,000 is necessary to compensate bias victims, it could not be provided.

Perhaps most important, the section violates the important principle of fair treatment for all bias victims. As a result of the restrictions discussed above, as well as other restrictions in the section <such as the requirement that it be shown that the remedy is necessary for deterrence purposes and is otherwise justified by the equities), victims of sex or religious bias will be required to meet potentially onerous procedural requirements in order to obtain damages-type relief that other bias victims are not required to meet. Consequently, full relief will not be available to such discrimination victims, which can only send the very dangerous message that some kinds of discrimination are less serious and less deserving of full relief.

(6) The substitute implicitly endorses the Supreme Court's restrictive interpretation of anti-bias laws and omits other key provisions of S. 2104.

The substitute omits important sections of S. 2104 which indicate that the legislation's purpose is to overrule restrictive Court decisions and direct the Court to interpret civil rights laws broadly to effectuate their remedial purposes. By implication, and by virtue of the extent to which it actually codifies several of the Court's harmful decisions as discussed above, the substitute thus effectively endorses the Court's restrictive interpretation of civil rights laws.

In addition, the substitute omits several other important parts of S. 2104, including: 1) the provision of section 7 which adopts a statute of limitations for Title VII more comparable to that for section 1981; 2) all of the provisions of section 9 which clarify and strengthen the critical attorneys' fees section of Title VII <except that the substitute does explicitly permit expert witness fees to be recovered under Title VID; 3) the provisions in section 10 allowing interest and extending the statute of limitations in actions against the federal government; 4> the provision of section 13 that ensures that the bill will not affect the legality of affirmative action and thus will not call for quotas; and 5) the transition provisions of section 15 ensuring that bias victims who have already suffered as a result of the Court's restrictive decisions can obtain relief. [Note: Unlike the earlier "opposition substitute," the Kassebaum amendment provides for Congressional coverage in the same manner as under S. 2104.]

These are essential elements. Under the provisions of the substitute, it would not provide relief for Mrs. Patterson. In our bill, we return the law to where it was at the time of the Patterson decision, and therefore all of those injured and aggrieved individuals would be eligible for some recovery. But this substitute does not provide that.

So, Mr. President, I believe that this substitute really does fail to meet the fundamental criteria. It does not restore Griggs; it also is flawed on the issue of damages; and it retains what has been one of the most troubling aspects of the Wards Cove provision, the burden of proof issue. For those reasons, I find we should reject this substitute.

At the appropriate time, I will make a motion to table, but I do not want to deny the Senator from Kansas or the Senator from Illinois an opportunity to speak.

Mrs. KASSEBAUM. Mr. President, I would be happy to respond to the Senator from Massachusetts, but is the Senator from Illinois seeking recognition?

Mr. SIMON. I do seek recognition to speak briefly.

Mrs. KASSEBAUM. I would be happy to wait to respond, if the Senator wishes to speak at this point.

Mr. SIMON. All right. The PRESIDING OFFICER. The

Senator from Illinois is recognized. Mr. SIMON. Mr. President, I have

great respect for the Senator from Kansas. She is one of the finest Members of this body. But even one of the finest Members of this body has the right to make a mistake, and I believe

that in this amendment she has done that.

Let me point out in addition to what my colleagues from Massachusetts said, who has done such a superb job of leading on this bill, that on page 2 of the amendment it says, "The term 'justified by business necessity' means that the challenged practice has a manifest relationship to the employment in question."

Now, that is very broad. For example, if you are an employer and you believe you have to have people on the job throughout the year and you believe if you hire a young woman she may get pregnant, therefore you do not hire young women in the job, I think you could argue that it has a manifest relationship to the employment in question.

Mr. HATCH. Will the Senator yield on that?

Mr. SIMON. I am pleased to yield to my colleague for a question.

Mr. HATCH. I appreciate the comment. I notice that my colleague has criticized the Griggs test which is manifest relationship to the employment in question. Is it my understanding that the Senator has criticized that test as too broad?

Mr. SIMON. I am sorry. Mr. HATCH. As I understand the

Senator's comments, he has stated that the Griggs test, at least as I view it, and the subsequent progeny of cases view it, for the business necessity language, the "manifest relationship to the employment in question" is too broad?

Mr. SIMON. It is too broad. That is correct.

Mr. HATCH. All right, then, let me ask another question. It is my opinion, or at least inference from what the Senator is saying, that the Senator would not agree to that Griggs test?

Mr. SIMON. Well, the Griggs language, the Court decision there contains other language that is, frankly, much stronger than we have in the Kassebaum amendment.

Mr. HATCH. Not language that has been adopted by the subsequent progeny of cases, Beazer, Dothard, Teal, et al. As I understand the distinguished Senator from Illinois, basically the Senator rejects that aspect of the Griggs language as too broad.

Mr. SIMON. I accept the Griggs case and the court decisions that have gone with it. But if you just read the Griggs case-forget any other cases-I think you will find the language taken in toto is stronger than this language.

Mr. HATCH. Is the Senator saying that he accepts the manifest relationship to the employment in question language but he also believes it should have additional language in Griggs, whatever it is?

Mr. SIMON. There are other things, the term "significant."

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17699 Mr. HATCH. Would the Senator

have any objection if we put that language in the bill along with other language that he likes in Griggs-only language from Griggs though, since we are trying to get back to the Griggs test?

Mr. SIMON. The immediate question at hand is the Kassebaum amendment. The question is, Does this weaken the present bill? Does it go beyond the Griggs decision? I think very clearly it does.

And I guess I will reclaim my time here shortly.

I think you could argue that something had a manifest relationship to employment if in an all white community in southern Illinois or in Nebraska you want to have an African-American hired as a clerk, or as a waitress, or a waiter. You could argue there is a manifest relationship to carrying on the business there. I think that clearly weakens.

Second, on page 3, when you get down to the complaining party identifies a combination and so forth, there you have to prove that each employment practice in such combination has contributed to the exclusion.

I think what you have to prove is an employment practice, not each employment practice. There is a significant difference.

Finally-this I think is extremely important-on page 4 of the amendment, it says "Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a major contributing factor for any employment practice." That is a significant departure from Griggs.

What we have had to prove up to this point is simply that there was discrimination. This goes beyond that, and says you have to prove that it is a major contributing factor.

I think on balance-and I am sure my colleague's intentions are goodthe Kassebaum amendment is not a good amendment. It weakens this bill appreciably, and it weakens it far beyond the Griggs decision.

I thank my colleague from Kansas for yielding.

Mrs. KASSEBAUM. Mr. President, I was going to respond to the Senators from Massachusetts but he has left the floor.

Mr. MITCHELL. Mr. President, I suggest the absense of a quorum.

The PRESIDING OFFICER <Mr. KERREY). The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mrs. KASSEBAUM. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.


Mrs. KASSEBAUM. Mr. President, I would like to answer, if I may, a few of

the questions raised by the Senator from Massachusetts.

First, though, in response to some of the comments of the Senator from Illinois, I believe when he mentioned "major contributing factor," he was speaking not of language that is in the Wards Cove decision but that which would affect the Price Waterhouse case. That is language that is currently in our substitute regarding Price Waterhouse-"major contributing factor."

Regarding the Patterson case-and the question raised by the Senator from Massachusetts-I believe the concern perhaps expressed was regarding whether there would be any retroactive feature that would allow those to go back, those cases to be picked up that would be retroactive. That is true. There is no retroactive feature in the substitute language. There would not be the ability to go back and pick up a retroactive case but in no way is the law prior to Patterson weakened.

I have earlier gone through why the law as it was prior Patterson has not been weakened, and I would be glad to repeat that. But I believe what really was troubling to the Senator from Massachusetts was the retroactive f eature, and with that I agreed. I do not think it should be retroactive. But I think Patterson itself should be protected, as it is in this substitute language.

Regarding the burden of proof in Wards Cove, I can only state: There are many interpretations of language, whether Griggs is or is not, as a matter of fact, being used. From all that I can understand-and I am not a lawyer-at this point I can only say I am rather relieved that I am not a lawyer because it is amazing the contortions that we can get into in trying to come up with whether we are using the right word or the wrong word.

From the perspective of one who is not a lawyer, it seems to me sometimes that the nuances escape me. But the substitute language, as far as I am concerned, clearly is Griggs language. It is Griggs, as has been stated in court cases before, and we have simply used that same language. The burden of proof has been, in the substitute language, moved to the employer by virtue of being the burden of production as well as the burden of persuasion. I do not know how else to make that clear, and if there are any further questions regarding that, that is something that we will have to get into at a further time.

Regarding the damages section and the constitutionality of whether the judge can award damages in discrimination there, or harassment, the Justice Department has assured me that indeed it is constitutional as it is written in the substitute. I can only say, Mr. President, that I am awaiting a letter from the Justice Department

which will spell that out, and I hope to have that tomorrow to make that part of the RECORD, so that it will clarify any concerns about whether it would be constitutional, as far as the Justice Department would interpret it.

Mr. President, I will be glad to yield the floor.

Mr. KENNEDY. I suggest the absence of a quorum.



Mr. ARMSTRONG. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.


Mr. ARMSTRONG. Mr. President, one of the amendments which is pending and which may be called up at some point in time is amendment No. 2129 by Senator HUMPHREY. Because of the significance of this amendment, I want to insert in the RECORD a memorandum of law concerning this amendment and the background of it. I commend it to the attention of my colleagues. I do submit it and ask unanimous consent that it be printed in the RECORD at this time.


U.S. SENATE, REPUBLICAN POLICY COMMITTEE,

Washington, DC, July 17, 1990.

MEMORANDUM-FETAL PROTECTION LAWS AND THE CIVIL RIGHTS ACT OF 1990 (S. 2104)

<By Lincoln C. Oliphant, Committee Legislative Counsel)

Section 4 of the Civil Rights Act of 1990 will nullify the fetal protection laws of the United States as they have been developed by the United States courts of appeals in Auto Workers v. Johnson Controls, 886 F.2d 871 <7th Cir. 1989) <en bane), cert. granted, 58 U.S.L.W. 3614 <Mar. 26, 1990); Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 <11th Cir. 1984); and Wright v. Olin Corp., 697 F.2d 1172 <4th Cir. 1982). See also, Zuniga v. Kleberg County Hospital, 692 F.2d 986, 992 <5th Cir. 1982). Unfortunately, the Committee Report breathes not one word of this.

The country's fetal protection jurisprudence will be nullified under both Section 4 of the bill as reported and Section 4 of the Kennedy-Jeffords substitute <of July 9) which, of course, does not have a report. The issues discussed in this memorandum are not new to the substitute, however, and could have been discussed in the committee report which was silent.

In fetal protection cases the courts of appeals have allowed employers to assert a "business necessity" defense. For example, in Johnson Controls the Seventh Circuit sitting en bane said:

"[Nleither the text of Title VII nor Supreme Court pronouncements mandate a holding that all forms of facial discrimination are justifiable only with a bona fide occupational qualification defense. . . .

"We are convinced that the components of the business necessity defense ... balance the interest of the employer, the em-

17700 CONGRESSIONAL RECORD-SENATE July 17, 1990 ployee and the unborn child in a manner consistent with Title VII. The requirement of a substantial health risk to the unborn child effectively distinguishes between the legitimate risk of harm to health and safety which Title VII permits employers to consider and the '[mlyths or purely habitual assumptions' that employers sometimes attempt to impermissibly utilize to support the exclusion of women from employment opportunities. Likewise, the requirement that the risk of harm to offspring be substantially confined to female employees means that a fetal protection policy applying only to women recognizes the basic physical fact of human reproduction, that only women are capable of bearing children. Finally, the employee's option of presenting less discriminatory alternatives to a fetal protection policy assures that the policies are only as restrictive as necessary to prevent the serious risk of harm to the unborn child. Accordingly, we agree with the Fourth Circuit, Eleventh Circuit, and EEOC that the business necessity defense applies to these cases. While business necessity defense can be appropriately applied to fetal protection policy cases under Title VII .... " 886 F.2d at 886-87 <footnote omitted).

In the quoted case, the Seventh Circuit agreed with the Fourth Circuit which said, "[Wle hold that under appropriate circumstances an employer may, as a matter of business necessity, impose otherwise impermissible restrictions on employment opportunity that are reasonably required to protect the health of unborn children of women workers against hazards of the workplace." Wright v. Olin Corp .. , 697 F.2d at 1189-90.

In the quoted case, the Seventh Circuit agreed with the Eleventh Circuit which said, "[Wle simply recognize fetal protection as a legitimate area of employer concern to which the business necessity defense extends." Hayes v. Shelby Memorial Hospital, 726 F.2d at 1552 n. 14.

In the quoted case, the Seventh Circuit agreed with the EEOC which said, "[Tl he Commission follows the lead of every court of appeals to have addressed the question . . . and concluded that the business necessity defense applies to these cases. While business necessity has traditionally been limited to disparate impact cases, there is an argument that in this narrow class of [fetal protection] cases the defense should be flexibly applied." EEOC Notice, "Policy Guidance on Reproduction and Fetal Hazards" at 4 <Oct. 7, 1988). However, in light of Wards Cove, the EEOC changed its mind. EEOC Notice, "Policy Guidance on United Auto Workers v. Johnson Controls, Inc." <Jan. 24, 1990).

In the excerpt from Johnson Controls quoted above, the Seventh Circuit said, "[Tlhe text of Title VII [does notl mandate a holding that all forms of facial discrimination are justifiable only with a [bfoql defense." Section 4 of S. 2104 fixes that. Section 4 adds a new paragraph 703(k)(2) to the Civil Rights Act of 1964 that reads, "A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this [disparate impact] subsection. That language eliminates the business necessity defense for fetal protection policies.

If the bill is enacted, fetal protection policies presumably would be required to meet the stringent bona fide occupational qualification (bfoq) defense. The bfoq defense was established in the original 1964 Act, the de-

fense permits covered entities to act on the basis of a person's religion, sex, or national origin <but not race) "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. 2000e-2(e)(l) <1982).

The EEOC's "Guidelines on Discrimination Because of Sex" say " ... the bona fide occupational qualification exception as to sex should be interpreted narrowly .... " 29 CFR 1604.2(a) 0989). "Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress." Id. at 1604.2(a)(2).

The Hayes and Wright courts already have said that a fetal protection policy cannot meet the bfoq standard. The Eleventh Circuit said, "We hold that when a policy designed to protect employee offspring from workplace hazards proves facially discriminatory, there is, in effect, no defense. . . . Therefore, under traditional BFOQ analysis, the defense is inapplicable to this case." Hayes v. Shelby Memorial Hospital, 726 F.2d at 1549. The Fourth Circuit said, "The inappropriateness of applying the overt discrimination/b.f.o.q. theory of claim and defense ... is that, properly applied, it would prevent the employer from asserting a justification defense which under developed Title VII doctrine it is entitled to present." Wright v. Olin Corp., 697 F.2d at 1185 n. 21. <The Johnson Controls court held that both the bfoq defense and the business necessity defense were available. 886 F.2d at 883-87 <business necessity> & 893-901 (bfoq).)

If the bfoq defense is defined as narrowly as the Committee would like, every fetal protection policy in the country will shrivel and vanish. The Committee said, "The BFOQ defense has, from its inception, been recognized as extremely stringent. As Justice Marshall [observed] in the context of sex discrimination, the BFOQ exception is 'applicable only to job situations that require specific physical characteristics necessarily possessed by only one sex.' Justice Marshall cited with approval the example in the Equal Employment Opportunity Commission regulations on BFOQ, 29 CFR 1604.2(a)(2), that it is permissible to employ actors and actresses for certain roles based on their gender." S. Rpt. 101-315 at 47 n. 39 <citations omitted>.

The way the Committee figures, bfoq's aren't for fetuses but for actors and actresses, but in a day when Miss Pat Carroll plays Falstaff at Capitol Hill's Folger Theatre the Committee might consider thinking of bfoq's beyond the footlights.

As noted above, the Supreme Court has agreed to review the Johnson Controls case. The Court has agreed to consider four questions. One question is irrelevant to the matters raised in the memorandum but the other three are vital. Here are the three relevant questions as posed by one of the advocates, the plaintiffs-appellants, i.e., those who are challenging the company's policy <and who lost in the court of appeals): " . .. Where employer policy excluding all fertile women from certain jobs because of concerns for health of any fetus that those women may conceive is challenged as unlawful gender discrimination violative of Title VII of 1964 Civil Rights Act: <a> does plaintiff or defendant bear burden of proving that employer's justification for excluding women from certain jobs meets Title VII standards? Cb) is that justification judged

under explicit provisions of statutory affirmative defense for bona fide occupational qualifications or is employer entitled to assert additional, broader 'legitimate business justification' defense not explicitly stated in statute? (c) if only statutory bona fide occupational qualification defense is available, does fetal protection purpose come within bounds of that defense?" 58 U.S.L.W. 3568 <Mar. 6, 1990).

Of the three relevant questions it can be seen that question <a> presents the underlying problem of Section 4. It is the GriggsWards Cove burden of proof problem. Questions (b) and <c> present the specific issue of what defense is available for a fetal protection policy.

Question (b) asks if the employer is entitled to a "business necessity" defense. Section 4 of this bill answers "no". Of course, the Seventh, Eleventh, and Fourth Circuits answered "yes"-but if this bill passes Section 4's answer will supersede the answer of the courts of appeals. Section 4 is intended to remove the possibility of answering "yes" to this question.

Question <c> asks if the bfoq defense is available if "business necessity" is not. The bill itself does not appear to address this question, but the Committee report, by adopting the "extremely stringent" interpretation of the broq defense, answers "no". That's also the position taken by the Eleventh and Four Circuits.

The United States, in an amicus brief filed with the Supreme Court, says "It is possible for a sex-based, fetal protection policy to be justified as a BFOQ." Brief for the United States and the Equal Employment Opportunity Comm'n as Amici Curiae Supporting Petitions at 16, Auto Workers v. Johnson Controls, no. 89-1215 <U.S.S.Ct.) On the other hand, numerous briefs from those who are generally described as civil rights advocates disagree with the United States and argue that the bfoq defense was not intended to encompass fetal protection policies and is not available to Johnson Controls. In the Johnson Controls case, Judges Easterbrook and Flaum took the position that a fetal protection policy can never be a bona fide occupational qualification. 886 F.2d at 908-21 (dissenting opinion>.

The Senate should consider the following type of approach, it seems to me: " ... As previously discussed, it is not clear that Cal Griggs-type approach should apply to a fetal protection policy. Yet whether a BFOQ or a 'neutral factor' approach is taken, it is gratifying that, so far courts have seen their way clear to upholding reasonable measures to protect unborn children. One can hope that the law will continue to be so applied, at least until the day when all workplaces can be made healthful for everyone." A Larson & L. Larson, Employment Discrimination, sec. 14.50 <1989) <footnotes omitted).

Perhaps Congress wants to narrow or eliminate altogether the legal defense now available for fetal protection policies. Perhaps Congress agrees with Judge Easterbook's amazingly frank assessment in Johnson Controls that, "The statute has it costs; prenatal injuries are among these." 886 F.2d at 920 (dissenting opinion). If that assessment sounds harsh, it is at least a forthright and accurate description of the effect of Section 4 of this bill, which is a whole lot more than can be said for the Committee Report which does not mention fetal protection policies or cases at all.

On the other hand, perhaps Congress will sympathize with a large corporation's medi-

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17701 cal director who said, "We'd rather face the EEOC than a deformed baby." If so, amendment number 2129 of Senator Humphrey, 136 Cong. Rec. S 9786 <daily ed. July 16, 1990), will ensure that fetal protection polices can continue to be defended by the standards of "business necessity."

Mr. ARMSTRONG. Unless someone else seeks recognition, Mr. President, I suggest the absence of a quorum.





Mr. AKAKA. Mr. President, I rise today to support passage of S. 2104, the Civil Rights Act of 1990.

Through the years, Congress has passed significant legislation which secured civil liberties for the people of the United States. In 1964 we passed the first sweeping civil rights bill. Since that time, millions of Americans have benefited from opportunities historically denied them due to race, ethnic background, religion, or sex. Such a feat, Mr. President, would not have been possible without the strong guidance of the U.S. Supreme Court.

Recently, however, the opposite seems true. Where we once turned to the Court to safeguard our basic rights and freedoms, we must now turn to Congress.

The landmark Supreme Court decision in overt, or unintentional job discrimination cases was set forth in 1971 in Griggs versus Duke Power. However, the 1989 Wards Cove interpretation challenged this 18-year-old precedent and shifted the burden of proof from the employer to the victim of discrimination.

A series of recent Supreme Court decisions threaten to unravel a quartercentury of achievements garnered by the Court and Congress in civil rights legislation. Mr. President, the Civil Rights Act of 1990 would remedy these recent departures from our es-

tablished precepts of equal opportunity.

The act, spearheaded by Senator KENNEDY, reverses recent Court rulings to restore and strengthen antidiscriminatory laws in the workplace. In addition, it enables victims of intentional discriminatory practices to be awarded damages. We have heard from many interest groups representing the business sector that this legislation would force the adoption of quotas. Mr. President, I do not believe this is true. Quotas were neither enforced nor mandated under the Griggs ruling, and I do not foresee it happening now.

Mr. President, arguments on both sides are compelling. However, our civil rights must be preserved. We must continue to move forward, never backward in the field of civil rights. For these reasons, I will vote for passage of the civil rights bill.

ORDER OF PROCEDURE Mr. MITCHELL. Mr. President, for

the information of Senators, and many others who have been following this important legislation, we now have had the opportunity to discuss the best way to proceed on this matter-including myself, the distinguished Republican leader, the Senator from Massachusetts, the manager of the bill, the distinguished Senator from Utah, the minority manager of the bill, as well as the Senator from Wyoming [Mr. SIMPSON], assistant Republican leader, and indeed several of our Republican colleagues.

We have agreed that negotiationswhich, as we earlier stated on several occasions during today's debate, have been underway for some weeksshould continue, that all parties have been acting in good faith, and at various stages of the negotiating process have come close to agreement on the many measures, the many aspects of this measure that are in contention.

And, therefore, for the information of Senators, there will be no further

rollcall votes this evening, and discussions will continue.

Under the rules of the Senate, once cloture is invoked there can be up to 30 hours of further consideration on the measure. I will shortly ask unanimous consent that when the Senate reconvenes and returns to t his measure tomorrow morning there be 12 hours remaining on the bill which would leave us in the position of approximately what we would be had we remained in session during that period, something we are unanimous in agreeing serves no useful purpose.

That will leave ample time for the disposition of the matter, if there is an agreement. If there is not an agreement on the substance of the matter, we hope to be able to reach agreement on how best to handle the pending and any other amendments that Senators may wish to offer which are germane and have previously been filed.

MORNING BUSINESS Mr. MITCHELL. Mr. President, I

ask unanimous consent that there be a period for morning business with Senators permitted to speak therein.


COMMITTEE ON APPROPRIATIONS REPORT ON THE ALLOCATION OF BUDGET TOTALS FOR FISCAL YEAR 1991 Ms. MIKULSKI. Mr. President,

today, the Committee on Appropriations completed its deliberations and favorably reported its 302(b) allocations, consistent with the amounts agreed to in Senate Resolution 308.

I have been requested by Senator ROBERT c. BYRD, the distinguished chairman of the committee, to submit this report which subdivides the allocation among its subcommittees.

I ask unanimous consent that this allocation be printed in the RECORD.

There being no objection, the allocation was ordered to be printed in the RECORD, as follows:

COMMITIEE ON APPROPRIATIONS, U.S. SENATE 302(b) ALLOCATION [In billions of dollars]

Discretionary Mandatory Total

Budget authority Outlays Budget authority Outlays Budget authority Outlays

Subcommittee: Agriculture .......... ........... ................................... . .................................................................. . Commerce .......................................................... .............. ............................ .. ................. .... .

10.167 9.476 40.707 25.087 50.874 34.563 19.335 18.289 .850 .844 20.185 19.133

Defense .......................................... .. .................. . ................................................................... . 263.324 276.078 .165 .165 263.489 276.243 District of Columbia ...................... .... . ........................ ........... .. .... . ............ ............ ...................................... . .570 .580 ..... ............................ .570 .580 Energy........................................... ...... ... ................................... .. .. . ......................................... ... ........ . Foreign Ops...................... ....... ......... ......... ...... ............................ ... ...... . ................................ ................. .. ..... .... . Interior..................... ... .... .. ..... ........... .. .............................. ...... ... ... ....... ......... . .. ......................................... .. .. .

20.900 19.900 ....... ............. ........ 20.900 19.900 14.678 12.626 .675 .675 15.353 13.301 12.800 11.925 .071 .072 12.871 11.997

Labor/HHS .... ............................................... ..................................................................... .... ... ....... ... ........... ........... . 50.408 53.208 123.069 122.900 173.477 176.108 Legislative .. ...................................................................... .. .... ... ........................... ............... .. ........................... .............. . Mil Con ....... ..................................... ........................... .. .............. ...................................................... .. ... .. ..... .. .............. .

2.268 2.155 .072 .072 2.340 2.227 7.980 8.666 ... 7.980 8.666

Transport...... .. .. .. ............................................ ............. ............................... ........................ . ............................ . 12.700 29.000 .479 .477 13.179 29.477 Treasury ....... . . .... .. .... .... .................................... . .. ..................................... . VA, HUD ............ .................. ....... ......... .. ................................ .. ......... . ····· ·· ······-··············· ···· ······ ........................ ........ .

11.550 10.300 8.882 9.221 20.432 19.521 61.320 58.545 17.541 20.345 78.861 78.890

~~~~~~~~~~~~~~~~~~~~~~~~~~-

Total . ...................................... . 488.000 510.748 192.512 179.858 680.512 690.606

Note.-Detail may not add to totals due to rounding.

17702 CONGRESSIONAL RECORD-SENATE July 17, 1990 THE GORTON AMENDMENT TO

ELIMINATE THE 1 PERCENT GLOBAL LIMIT ON THE GROWTH OF TEXTILE AND APPAREL IMPORTS <AMENDMENT NO. 2211) Mr. LEVIN. Mr. President, the

amendment would eliminate the bill's 1 percent global limit on the growth of textile and apparel imports from nations which increase their imports of U.S. agricultural goods. Specifically, it would grant these nations a 50-cent increase in their quota of textile imports for every dollar increase in their imports of U.S. agricultural goods.

The bill already ties textile imports to agricultural exports. It provides nations which increase their imports of U.S. agricultural goods with an increased limit on textile exports to the United States. This provision provides textile exporting countries with an incentive to increase their purchase of American agricultural goods. It also recognizes that cotton and wool producers in the United States benefit from a healthy domestic textile and apparel industry. For these reasons, American farm organizations have endorsed this bill the way it is.

TEXTILE, APPAREL, AND FOOTWEAR TRADE ACT OF 1990

Mr. KOHL. Mr. President, I rise today in support of H.R. 4328, the Textile, Apparel, and Footwear Trade Act of 1990. I commend Senator HOLLINGS for his successful efforts to solidify such strong bipartisan support for this legislation.

While I still have some concerns about the bill's effect on existing trade agreements, I believe it provides us with our best hope of getting stronger agreements in the future. As both an elected official and a conscientious businessman, I believe we must use the Uruguay round to actively encourage and negotiate reductions in international trade barriers. But to accomplish this task in a way that protects American interests, we must remind both our trade negotiators and the rest of the world that America will not venture down the free trade path alone: that free trade, and fair trade, is a two-way street.

Right now, the street is decidedly one way. And America's trading partners are passing us in the other lane. While the 1980's brought us a good deal of economic growth, the decade also brought up plant closings, company consolidations, mergers, layoffs, and a general decline in our manufacturing-based economy. Along with the textile and apparel industry, the automobile, steel, and electronics industries were devastated by products being imported from countries which became competitive by taking advantage of our "open door" policy with respect to trade. Their industries get

subsidies, ours don't; they pay people low wages, we don't; they tolerate unsafe working conditions, we won't. The net result is that the price of their commodities is lower when compared to ours. This scenario encourages American entrepreneurs to buy the cheaper, foreign-made products in order to stay competitive with their rivals-both at home and abroad.

That is the global picture. And it doesn't change when you focus in on textiles and footwear in Wisconsin. Wisconsin's footwear industry lost 1,679 jobs over the last 10 years-or one-third of the industry's jobs. And it's not just Wisconsin and not just the footwear industry. Between 1980 and 1990, the U.S. textile and apparel industry lost 295,000 jobs; mostly due to the increasing number of imported products formerly manufactured in this country. In 1985 alone, we lost 64,000 jobs in the apparel industry and about 44,000 jobs in the textile industry. Our imports of textiles such as yarn, fabric, and similar materials increased from 2 million square yards in 1980 to 6 million yards in 1989. If we keep that up, we may not have an industry by the end of the next decade.

I remain convinced that if we had reasonable trade agreements, this bill would not be necessary or desirable. But we don't have those agreements now-and we aren't going to get them unless we make it clear that we will respond if we don't. This bill makes that clear. And that is why I am willing to vote for it.

THE CLOTURE VOTE ON THE KENNEDY-JEFFORDS SUBSTITUTE TO S. 2104 Mr. CHAFEE. Mr. President, I would

like to take a couple of moments to talk about the cloture vote that will occur.

I am a long-time supporter of civil rights legislation. I would like to see a civil rights bill come out of this Congress. I have been in constant touch with parties involved in this debate, and I have done what I could to bring the sides together. We have some real concerns about the decisions on civil rights handed down by the Supreme Court in 1989, and I think we should get on with it.

Frankly, however, I do not like-nor see the need for-this cloture motion. Cloture is a procedure of last resort. It is a procedure that the Senate leadership uses, usually out of dire necessity, in order to keep some order when this body debates a particular bill. It ensures that we have some limits, some appropriate boundaries when we carry out our legislative work. But it is not a legislative tool of first resort. After other efforts have failed, cloture is filed, or at least threatened. We certainly do not enter into cloture situations lightly.

That is why I am puzzled, to say the least, that cloture was filed in this situation. I do not think that it is justified at this point. I do not think that we have exhausted other possibilities, such as agreement, time agreements, votes tabling motions, discussions, et cetera. This situation just does not seem to warrant as extreme a solution as cloture.

First, we have not started substantive debate on this bill. We have done a few opening statements, but that's it. Instead we have gone on to finish up the crime bill, the ADA bill, and the textile bill. Clearly, cloture is not required at this point.

Second, there are negotiations with the administration going on right now. They seem to be going forward, and agreements are being reached. This is not an administration that wants to veto this bill, and it is trying in good faith to work out a compromise. In fact, the Senator from Massachusetts was at the White House last evening, negotiating on this bill.

Third, cloture shuts out many who have amendments, many of which may be positive contributions to this debate. Senators may not be able to off er them under the strict rules of germaneness that apply once cloture is invoked. That's not fair. Furthermore, limited amendments means that some questions will remain unansweredquestions that perhaps could have been laid to rest or resolved or otherwise disposed of during floor debate.

For these reasons, I feel strongly that we could work this out without a cloture motion. Cloture doesn't help anyone-after all, a narrow victory is not a victory at all in this game. Cloture at this time does no more than engender bad feeling.

In sum, this procedure is unwarranted. Thus, for the above reasons, I will not now support a cloture motion.

MESSAGES FROM THE PRESIDENT

Messages from the President of the United States were communicated to the Senate by Mr. Kalbaugh, one of his secretaries.

EXECUTIVE MESSAGES REFERRED

As in executive session, the Presiding Officer laid before the Senate messages from the President of the United States submitting a nomination, which was ref erred to the Committee on Commerce, Science, and Transportation.

(The nominations received today are printed at the end of the Senate proceedings.)

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17703 MESSAGES FROM THE HOUSE

ENROLLED BILL SIGNED At 11:35 a.m., a message from the

House of Representatives, delivered by Ms. Goetz, one of its reading clerks, announced that the Speaker has signed the following enrolled bill:

S. 933. An act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

The enrolled bill was subsequently signed by t h e Acting P resident pro t empore [Mr. HARKIN].

At 4:20 p.m., a message from the House of R epresent atives, delivered by Mr. Hays, one of its reading clerks, ann ounced that the House h as passed the following bills, in which it requests the concurrence of the Senate:

H.R. 3338. An act to direct the Secretary of the Interior to convey all interest of the United States in a fish hatchery to the State of South Carolina, and for other purposes;

H.R. 3774. An act to assure the continuing airworthiness of aging aircraft, and for other purposes;

H.R. 3787. An act to authorize a joint Federal, State, and Tribal study for the restoration of the fishery resources of the Chehalis River Basin, Washington, and for other purposes;

H.R. 5131. An act to amend the Federal Aviation Act of 1958 to extend the civil penalty assessment demonstration program, and for other purposes; and

H.R. 5256. An act to amend the American Indian, Alaska Native, and Native Hawaiian Culture and Art Development Act, and for other purposes.

MEASURES REFERRED The following bills were read the

first and second times by unanimous consent, and ref erred as indicated:

H.R. 3338. An act to direct the Secretary of the Interior to convey all interest of the United States in a fish hatchery to the State of South Carolina, and for other purposes; to the Committee on Environment and Public Works.

H.R. 3774. An act to assure the continuing airworthiness of aging aircraft, and for other purposes; to the Committee on Commerce, Science, and Transportation.

H.R. 5131. An act to to amend the Federal Aviation Act of 1958 to extend the civil penalty assessment demonstration program, and for other purposes; to the Committee on Commerce, Science, and Transportation.

H.R. 5256. An act to amend the American Indian, Alaska Native, and Native Hawaiian Culture and Art Development Act, and for other purposes; to the Select Committee on Indian Affairs.

MEASURES PLACED ON THE CALENDAR

The Committee on the Judiciary was discharged from the further consideration of the following bill, which was placed on the calendar:

S. 1379. A bill to reauthorize and amend the Defense Production Act of 1950, and for other purposes.

ENROLLED BILL PRESENTED The Secretary of the Senate report

ed that on today, July 17, 1990, he had presented to the President of the United States the following enrolled bill:

S. 933. An act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

REPORTS OF COMMITTEES The following reports of committees

were submitted: By Mr. KENNEDY, from the Committee

on Labor and Human Resources, without amendment:

S. 2630. A bill to amend the Public Health Service Act to extend the tuberculosis program, and for oth er purposes <Rept . No. 101-372).

By Mr. KENNEDY, from the Committee on Labor and Human Resources, with an amendment in the nature of a substit ute:

S. 2631. A bill to amend the Public Health Service Act to reauth orize certain injury control programs, and for oth er purposes <Rept. No. 101-373 ).

By Mr. HOLLINGS, from the Commit tee on Commerce, Science, and Transportation, with an amendment in the nature of a substitute and an amendment to the title:

S. 2434. A bill to permit the implementation of the Department of Transportation Anti-Drug Program rule for recipients of Federal mass transit assistance <Rept. No. 101-374).

By Mr. BURDICK, frc,:a the Committee on Environment and Public Works, with an amendment in the nature of a substitute:

S. 1731. A bill to provide for the creation, restoration, protection, enhancement, and conservation of coastal wetlands, and to conserve North American wetland ecosystems and waterfowl and the other migratory birds and fish and wildlife that depend upon such habitats, and for other purposes <Rept. No. 101-375>.

INTRODUCTION OF BILLS AND JOINT RESOLUTIONS

The following bills and joint resolutions were introduced, read the first and second time by unanimous consent, and referred as indicated:

By Mr. DURENBERGER <for himself and Mr. BoscHWITZ):

S. 2859. A bill to establish a task force on farm safety, to provide grants for research on issues concerning farm safety, and for other purposes; to the Committee on Agriculture, Nutrition, and Forestry.

By Mr. DASCHLE: S. 2860. A bill to amend the Internal Reve

nue Code of 1986 to allow a deduction for travel expenses of certain loggers; to the Committee on Finance.

S. 2861. A bill to amend the Internal Revenue Code of 1986 to provide special rules for certain gratuitous transfers of employer securities for the benefit of employees; to the Committee on Finance.

By Mr.ROTH: S. 2862. A bill to prohibit revenue recovery

firms and certain auditors from receiving compensation on a percentage of findings basis, and for other purposes; to the Committee on Labor and Human Resources.

By Mr. KENNEDY <for himself, Mr. HATCH, Mr. BINGAMAN, Mr. SIMON,

Mr. PELL, Mr. DURENBERGER, Mr. METZENBAUM, Mr. JEFFORDS, Ms. MIKULSKI, Mr. DODD, and Mr. ADAMS):

S. 2863. A bill to amend the Stewart B. McKinney Homeless Assistance Act and the Public Health Service Act to reauthorize certain health, education, training, and community services programs, and for other purposes; to the Committee on Labor and Human Resources.

By Mr. DOMENIC!: S. 2864. A bill to establish the National

Atomic Museum; to the Commit tee on Energy and Natural Resources.

SUBMISSION OF CONCURRENT AND SENATE RESOLUTIONS

The following concurrent resolutions and Senate resolutions were read, and referred <or acted upon), as indicated:

By Mr. BOSCHWITZ (for Mr. MURKOWSKI):

S. R es. 309. Resolution to amend Senate R esolution 66, relating to committee funding, to clarify the spending auth ority of the Committee on Veterans' Affairs; considered and agreed to.

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DURENBERGER (for himself and Mr. BOSCHWITZ):

S. 2859. A bill to establish a task force on farm safety, to provide grants for research on issues concern ing farm safety, and for other purposes; to the Committee on Agriculture, Nutrition, and Forestry. FARM INJURY PREVENTION AND TREATMENT ACT e Mr. DURENBERGER. Mr. President, I rise today to introduce, along with my colleague Senator BoscHWITZ, S. 2859, the Farm Injury Prevention and Treatment Act of 1990.

This bill is simple in concept, addressing an often overlooked subject: farm safety. It has four parts, one on government coordination and information gathering, a part that will make farm machinery safer, an injury treatment and health care section, and a part on farm safety education.

Farm safety is often overlooked, yet agriculture is one of this Nation's most dangerous occupations. There are about 50 agricultural deaths per 100,000. The annual death rate for all industries combined is only 11. In 1986 there were 1,900 agricultural deaths, 300 of them were children and most of them were machine-related. Agricultural equipment is involved in about one-fourth of on-farm work injuries and in nearly half the deaths. In addition, there are approximately 170,000 disabling farm injuries each year. These injuries and accidents cause pain and suffering, cost millions of dollars, and disrupt lives and families. And, they are preventable.

Although a lot is being done by the Federal Government, there is no comprehensive or coordinated program to address the farm injury problem. We

17704 CONGRESSIONAL RECORD-SENATE July 17, 1990 know there is a problem, a big problem, but we don't know how big or where best to focus our resources. This bill calls for coordination and information gathering to help the various Government agencies such as the Extension Service and the Centers for Disease Control focus on their work.

But, coordination and information gathering is not enough. We must act on what we do know. We know that tractor rollovers pose the greatest threat to farmers and that rollover protection systems can dramatically lessen that threat. We know grassroots education can prevent accidents. S. 2859 addresses this coordination problem as well as takes immediate steps to prevent accidents.

Mr. President, before I go into detail about S. 2859, it is important to note that my bill builds upon the quality work already done in recent years by my colleagues, Senatprs COCHRAN and HARKIN. Senator COCHRAN has sponsored legislation that will provide valuable resources for farm safety education. Similarly, Senator HARKIN has created numerous farm safety programs in the health care areas. My bill will pull these two efforts together, and it addresses the threat farm machinery poses to farmers. I. COORDINATION AND INFORMATION GATHERING

The first and most important part of S. 2859 is title I which provides for coordination of the Government's farm safety efforts and requires a comprehensive study and compilation of the Nation's farm safety information.

Currently, the two main Federal entities doing farm safety work, the Departments of Agriculture and Health and Human Services, do a lot of work on this issue. But, there is no coordinating process. S. 2859 will order the two Departments to enter into a memorandum of understanding that will expressly outline how the Departments will coordinate their farm safety programs.

The bill also establishes a 1 7 -member interdisciplinary and intergovernmental task force. Serving on the task force will be the Secretaries of HHS and USDA as cochairs and three members each representing: First, other Federal, State, and local governments; second, farm organizations; third, the farm machinery industries; fourth, individuals with medical experience related to farm injury treatment; and fifth, citizens at large. The task force will be located within USDA and its members appointed by the Secretary of Agriculture in coordination with the Secretary of HHS.

The task force will have two duties. First, to advise the Secretaries of HHS and USDA with respect to their farm safety programs, including the designation, development, and maintenance of hospital assistance programs, State accident reporting demonstration projects, and farm engineering grants.

The other, and in many respects more important role, is information gathering and disbursement. Although there has been much work in this area, it has not been pulled together, synthesized, gaps plugged, and new areas explored. The more we look at this issue the less we know. The task force will address this knowledge shortfall as well as focus the Government efforts in the most effective areas.

Thus, the task force shall: First, coordinate farm accident activities within USDA and HHS; and second, do a comprehensive review of the farm safety issue, compiling pertinent data in one place on a national level. It will then become an information clearinghouse on farm safety, thereby consolidating and focusing the Government's extensive farm safety efforts and determining areas that need more research and concentration. This should provide greater use of the limited financial resources.

II. FARM MACHINERY

There are two sections of the bill that touch on farm machinery. One section provides small grants-no more than $250,000-to farm engineering research entities who want to design, test, and implement safer farm machines. The other section deals with tractor rollover protection systems or ROPS.

Farmer fatigue, darkness, poor weather and maintenance, and inattentiveness sadly, and all too often, contribute to machine-related injuries. The grants section of my bill will help farm machinery manufacturers to develop safer machines by providing "seed" grants for agricultural engineering departments at land grant colleges. My goal is to make machines safe under all circumstances and known use patterns.

The other farm machinery section deals with tractor rollover protection systems. Tractor rollovers are the single greatest cause of accidental deaths on Minnesota farms where they cause 10 deaths a year. Nearly half the approximately 400 tractor-related deaths that occur each year in this Nation involve rollovers. The great majority of these deaths-about 200 a year-could have been prevented if farmers had simply used the ROPS and seatbelts that farm manufacturers and others have made available for virtually all tractors manufactured over the past 20 years.

The way my bill handles this is to have the task force study the issue and submit recommendations for how best to address the tractor rollover problem to the Secretary of Agriculture and Congress in 12 months. Congress will have 6 months to consider the recommendations and take action on them. If it does not, the Secretary of Agriculture will automatically implement the recomme:µdations. This method lets the experts decide what

needs to be done, and how it will be done, while providing congressional oversight.

One way for the task force to significantly decrease rollover injury and increase the numbers of ROPS on tractors currently in the field, with minimal interference with farmers, might be to simply require that ROPS be installed on all tractors-used as well as new-when they are sold. These sales take place every day at equipment dealerships, auctions, and between private parties. Such a requirement, over the next 10 years, in a gradual and systematic way that is not overly burdensome to farm families, and without bringing OSHA inspectors onto farms, effectively deals with most of the tractor rollover problem that exists today. Each year a number of older tractors without ROPS will become obsolete, and each year ROPS also will be added to used tractors as they are sold. The result will be solid progress in dealing with a very serious farm safety problem that can be measured in 100,000's of safer tractors and l,OOO's of saved lives.

III. PUBLIC HEALTH

The bill contains three sections on health care that directly deal with farm injuries and their care. In each case, the Secretary of HHS, in consultation with the task force shall: First, issue grants to States and other appropriate entities to improve the recognition, care, and rehabilitation of farm injuries; second, through the Director of the National Institutes of Health, issue grants to support a full range of research and development pertaining to mechanisms of injury, healing, and rehabilitation of farm injuries; and third, provide targeted grants to increase the availability and qualifications of people who can provide adequate farm injury care and rehabilitation.

IV. PUBLIC EDUCATION

The Secretary of Agriculture, in consultation with the task force, shall make grants to States and other entities for the establishment of farm safety education programs concerning safety in the workplace. The goal is to reduce occupational injury and death rates including those resulting from chemical exposure.

Mr. President, to conclude, S. 2859, the Farm Injury Prevention and Treatment Act of 1990, addresses an important but overlooked aspect. The health and well-being of farmers and their families are threatened by conditions that can be changed through education and by making machinery safer. By coordinating the Federal Government's farm safety programs, encouraging the manufacture and use of safer farm machinery, enhancing rural health care capabilities, and augmenting farm safety education programs, this bill will make Government

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17705 more effective and the lives of farmers better.

Mr. President, I ask unanimous consent that a report by the Minnesota Farm Safety Task Force and a copy of the bill be printed in the RECORD at this point.


s. 2859 Be it enacted by the Senate and House of

Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the "Farm Injury Prevention and Treatment Act of 1990". SEC. 2. FINDINGS.

Congress finds that-< 1) data developed by the National Safety

Council indicate that farming is one of the most dangerous occupations in the United States;

(2) farmers face unique severe injuries that threaten both the lives and livelihoods of farmers;

(3) the public needs to fully understand the causes of, extent of, or solutions to, problems of injury to farmers;

(4) it serves the national interest to increase medical treatment and rehabilitation services for farm injuries;

(5) it serves the national interest to increase public knowledge about farm safety issues and the impact of farm safety on rural health; and

(6) it serves the national interest to improve coordination among the many government agencies with jurisdiction over farm safety issues. SEC. 3. DEFINITIONS.

As used in this Act: (1) FARMER.-The term "farmer" includes

a farmer, rancher, family member of a farmer or rancher who is involved in the operation of the farm or ranch, child of a farmer or rancher, and seasonal employee of a farmer or rancher.

(2) FARM ACCIDENT.-The term "farm accident" means an unplanned incident that

<A> may result in a farm injury; and is determined by the Task Force to be

a farm accident. (3) FARM ILLNESS.-The term "farm ill

ness" means a chronic condition causing impaired function that-

<A> results from a farm injury; and is determined by the Task Force to be

a farm accident. (4) FARM INJURY.-The term "farm injury"

means a traumatic or toxic exposure injury to a farm worker that is determined by the Task Force to be a farm injury, including-

<A> an injury that results from improper design or construction of a building, machine, or equipment; and

 an intentional injury, including an injury that results from assaultive or abusive action, or suicide.

(5) LAND GRANT UNIVERSITY.-The term "land grant university" means a land grant university established under the Act of July 2, 1862 <known as the "First Morrill Act"; 12 Stat. 503, chapter 130; 7 U.S.C. 301 et seq.) or under the Act of August 30, 1890 <known as the "Second Morrill Act"; 26 Stat. 419; 7 U.S.C. 321 et seq.).

(6) TASK FORCE.-The term "Task Force" means the Farm Safety Task Force, established in section lOl<a).

(7) TOXIC EXPOSURE INJURY.-The term "toxic exposure injury" means an injury that results from inhalation or contact with chemical, organic, or infectious substances or with electrical or thermal sources.

(8) TRAUMATIC INJURY.-The term "traumatic injury" means an injury that results from acute or repetitive subacute stresses to the human body.

TITLE I-COORDINATION SEC. 101. TASK FORCE.

(a) ESTABLISHMENT.-There is established in the Department of Agriculture a Farm Safety Task Force.

(b) MEMBERSHIP.-The Task Force shall be composed of 17 members, including-

< 1) the Secretary of Agriculture; <2> the Secretary of Health and Human

Services; and (3) 15 other members appointed by the

Secretary of Agriculture, in consultation with the Secretary of Health and Human Services, including-

<A> 3 individuals from other Federal, State, and local government agencies that conduct programs related to agriculture, occupational safety, or health, or other agencies determined to be appropriate by the Secretary of Agriculture and the Secretary of Health and Human Services;

 3 individuals from among individuals nominated by national agricultural organizations;

<C> 3 individuals who shall represent the interests of-

(i) the farm machinery industry; and (ii) other industries affected by issues of

farm safety that have an interest in, and a potential to contribute to, the formulation of national policy related to farm safety, as determined by the Secretary of Agriculture and the Secretary of Health and Human Services;

(D) 3 individuals with medical experience related to farm injury treatment; and

<E> 3 private citizens. <c> Co-cHAIRPERSONs.-The Secretary of

Agriculture and the Secretary of Health and Human Services shall serve as the Cochairpersons of the Task Force.

(d) TERM OF OFFICE.-The Secretary of Agriculture shall appoint members of the Task Force under subsection (b)(3) for terms of 3 years, except that the Secretary of Agriculture shall appoint one-third of the original members for a term of 1 year, and one-third for a term of 2 years.

<e> VACANCIEs.-The Secretary of Agriculture shall fill any vacancy in the membership of the Task Force in the same manner as the original appointment. The vacancy shall not affect the power of the remaining members to execute the duties of the Task Force.

(f) QuoRUM.-A quorum shall consist of 9 members of the Task Force, except that 7 members may conduct a hearing.

(g) MEETINGs.-The Task Force shall meet at the call of the Co-chairpersons or a majority of the members of the Task Force.

(h) COMPENSATION AND REIMBURSEMENT OF EXPENSES.-

(1) COMPENSATION.-Each member of the Task Force who is not an employee of the Federal Government shall receive compensation at a rate not to exceed the daily equivalent of the rate specified for GS-18 of the General Schedule under section 5332 of title 5, United States Code, for each day the member is engaged in the performance of duties for the Task Force.

(2) TRAVEL EXPENSES.-Each member of the Task Force shall receive travel expenses, including per diem in lieu of subsist-

ence, as authorized by section 5703 of title 5, United States Code, for persons employed intermittently in the Government service, for each day the member is engaged in the performance of duties away from the home or regular place of business of the member. SEC. ~02. STAFF AND CONSULTANTS.

<a> STAFF.-Cl) APPOINTMENT AND COMPENSATION.-The

Secretary of Agriculture and the Secretary of Health and Human Services may appoint and determine the compensation of such staff as the Task Force determines to be necessary to carry out the duties of the Task Force.

(2) LIMITATIONs.-The rate of compensation for each staff member shall not exceed the daily equivalent of the rate specified for GS-18 of the General Schedule under section 5332 of title 5, United States Code for each day the staff member is engaged in the performance of duties for the Task Force. The Secretary of Agriculture and the Secretary of Health and Human Services may otherwise appoint and determine the compensation of staff without regard to the provisions of title 5, United States Code, that govern appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, that relate to classification and General Schedule pay rates.

(b) EXPERTS AND CONSULTANTS.-(1) SERVICES AND COMPENSATION.-The Sec

retary of Agriculture and the Secretary of Health and Human Services may obtain and compensate such temporary and intermittent services of experts and consultants in accordance with section 3109(b) of title 5, United States Code, as the Task Force determines to be necessary to carry out the duties of the Task Force.

<2> LIMITATION.-The rate of compensation for each expert or consultant shall not exceed the daily equivalent of the rate specified for GS-18 of the General Schedule under section 5332 of title 5, United States Code for each day the expert or consultant is engaged in the actual performance of duties for the Task Force.

(3) INTENT OF CONGRESS.-It is the intent of Congress that the Secretary of Agriculture and the Secretary of Health and Human Services shall obtain the services of experts and consultants from State agencies, land grant universities, and other organizations that gather farm accident and injury information in accordance with this subsection whenever appropriate in order to use existing expertise and information concerning farm accidents and injuries.

(C) DETAIL OF FEDERAL EMPLOYEES.-On the request of the Task Force, the Secretary of Agriculture and the Secretary of Health and Human Services shall detail, without reimbursement, any of the personnel of the Department of Agriculture or the Department of Health and Human Services to the Task Force as the Task Force determines to be necessary to carry out the duties of the Task Force. Any detail shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee.

(d) TECHNICAL ASSISTANCE.-On the request of the Task Force, the Secretary of Agriculture and the Secretary of Health and Human Services shall provide, without reimbursement, such technical assistance and administrative support services to the Task Force as the Task Force determines to be necessary to carry out the duties of the Task Force.

17706 CONGRESSIONAL RECORD-SENATE July 17, 1990 (e) OBTAINING lNFORMATION.-The Secre

tary of Agriculture and the Secretary of Health and Human Services may secure directly from any Federal agency information necessary to enable the Task Force to carry out the duties of the Task Force, if the information may be disclosed under section 552 of title 5, United States Code. Subject to the previous sentence, on the request of the Secretary of Agriculture and the Secretary of Health and Human Services, the head of the agency shall furnish the information to the Task Force. SEC. 103. ORGANIZATION.

(a) MEMORANDUM OF AGREEMENT.-Not later than 4 months after the date of enactment of this Act, the Secretary of Agriculture and the Secretary of Health and Human Services shall develop and enter into a Memorandum of Agreement that shall, at a minimum-

< 1) identify the resources and programs of the Department of Agriculture, the Department of Health and Human Services, and other Federal, State, and local programs, that relate to farm safety issues;

(2) coordinate the resources and programs of the Department of Agriculture and the Department of Health and Human Services existing on the date of enactment of this Act with the research and grant programs established by sections 104, 201, 202, 301, 302, 303, and 401;

(3) develop and establish appropriate minimum standards for the responsibilities of the Department of Agriculture and the Department of Health and Human Services to the Task Force, including provision of staff to the Task Force to develop recommendations on research and grant proposals, and perform the administrative work of the Task Force;

(4) develop a budget for the activities of the Task Force;

(5) provide that, in the event of a disagreement between the Task Force and the Secretary of Agriculture with respect to any research program established by section 104 or 201, the decision of the Secretary of Agriculture shall be final; and

(6) provide for an annual review of the memorandum of agreement by the Secretary of Agriculture and the Secretary of Health and Human Services.

(b) CoNSULTATION.-The Secretary of Agriculture and the Secretary of Health and Human Services shall, in developing the Memorandum of Agreement under subsection <a), consult with and solicit the comments of the heads of other Federal, State, and local programs that relate to farm safety issues.

<c> PuBLICATION.-The Memorandum of Agreement established in accordance with subsection (a) shall be submitted to Congress and published in the Federal Register not later than 6 months after the date of enactment of this Act.

<d> CooRDINATION.-The Task Force shall coordinate and serve as a clearinghouse for Federal farm safety outreach and education programs.

<e> PRIORITY.-The Task Force shall determine the scope and priority of each of the research and grant programs established by sections 104, 201, 202, 301, 302, 303, and 401. SEC. 104. FARM ACCIDENT PREVENTION STUDY.

(a) STUDY.-(1) SUBJECT.-The Task Force shall-(A) conduct a nationwide study of the fre

quency and the types of farm accidents that involve farmers;

<B) gather and provide relevant regional information on farm accidents; and

<C> perform tasks determined by the Secretary of Agriculture to be needed to acquire and analyze the information required to be collected under subparagraphs <A> and (B).

(2) ANALYSIS.-ln conducting the study described in paragraph < 1 ), the Task Force shall-

< A> analyze farm accidents involving(i) farm equipment and machinery; (ii) agricultural chemicals; (iii) livestock; <iv) farm buildings; and <v> children; differentiate between farm accidents

that are related to agricultural employment and farm accidents that are not related to agricultural employment; and

<C> use recognized scientific and analytical methods.

(b) STUDY RESULTS.-( 1) ADMINISTRATIVE RECOMMENDATIONS.

The Task Force shali review the information gathered in accordance with subsection (a) and submit to appropriate Federal agencies the findings and conclusions of the Task Force about the adequacy or deficiency of existing farm safety programs operating within various regions of the country, including recommendations for administrative reform.

(2) REPORT TO CONGRESS.-Not later than January 1, 1993, the Task Force shall submit a report to the President, the Committee on Agriculture of the House of Representatives, and the Committee on Agriculture, Nutrition, and Forestry of the Senate describing the findings and conclusions of the study required by subsection <a>. including recommendations for legislative reform.

(d) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this section $5,000,000 for each of fiscal years 1991through1995. SEC. 105. CENSUS OF AGRICULTURE.

The Secretary of Commerce shall include questions relating to agricultural accidents and farm safety in the 1992 Census of Agriculture.

TITLE 11-F ARM MACHINERY SEC. 201. TRACTOR ROLL-OVER STUDY AND RE

QUIREMENTS.

<a> STUDY.-(1) SuBJECT.-The Task Force shall con

duct a study of protective roll-over devices for tractors. In particular, the Task Force shall examine-

<A > the safety benefits of various protective devices;

 the costs associated with various protective devices;

<C> appropriate minimum guidelines for protective devices;

<D> practical and feasible means of encouraging farmers and farm machinery manufacturers to install protective devices on farm machinery; and

(E) practical and feasible means of discouraging users of farm machinery from inhibiting or overriding safety devices.

(2) REPORT.-Not later than 12 months after the date of enactment of this Act, the Task Force shall submit to the Committee on Agriculture of the House of Representatives, the Committee on Agriculture, Nutrition, and Forestry of the Senate, and the Secretary of Agriculture a written report of its findings and conclusions from the study conducted under paragraph < 1), including recommendations for administrative and legislative reform.

 REQUIREMENTs.-If Congress has not passed legislation concerl'\ing tractor rollover protective devices 6 months after the

date the Task Force has submitted the report described in subsection (a)(2), the Secretary of Agriculture shall implement through rulemaking the recommendations of the Task Force contained within the report specified in subsection <a><2>.

(C) AUTHORIZATION OF APPROPRIATIONS.(!) STUDY.-There are authorized to be ap

propriated for purposes of carrying out subsection (a) $1,000,000 for fiscal year 1991.

(2) REQUIREMENTS.-There are authorized to be appropriated for purposes of carrying out subsection (b) $500,000 for each of the fiscal years 1992 through 1995. SEC. 202. FARM MACHINERY ENGINEERING RE

SEARCH GRANTS. (a) ESTABLISHMENT.-The Task Force shall

establish a Farm Safety Fund and is authorized, in accordance with appropriation Acts, to award grants from the Fund to eligible entities to pay for the Federal share of conducting research on farm machinery safety engineering.

(b) USE OF GRANTS.-Entities shall use grants provided under this section to-

< 1) conduct research on engineering designs and protective devices to improve the safety of farm machinery;

(2) implement the designs and install the devices on farm machinery; and

(3) test the designs and devices. (C) AWARD OF GRANTS.-(1) PEER REVIEW.-The Task Force shall

obtain peer review of research proposals, and shall seek the widest participation of qualified scientists in the Federal Government, State governments, colleges and universities, and the private sector to perform the review. The results of the review shall be presented to the Task Force.

(2) PRIORITY.-The Task Force shall award grants under this section in accordance with the priority established by the Task Force in accordance with section 103<e), and shall give priority to applicants that-

< A) receive non-Federal funding; are land grant universities; <C> propose research designs that demon

strate a high likelihood of adaptability to existing and future farm machinery; or

<D> propose research designs that address user or behavioral actions that inhibit current safety devices.

(3) AWARDs.-The Task Force shall award grant funds from the Farm Safety Fund on a majority vote of the Task Force. Either the Secretary of Agriculture or the Secretary of Health and Human Services may veto a disbursement.

(4) LIMITATION ON AMOUNT.-ln awarding a grant to an entity under subsection (a), the Task Force may-

<A> make individual grants of up to $250,000; and

(B) make total awards of up to $500,000 within any 3-year period.

(d) APPLICATION.-To be eligible for a grant under subsection (a), an entity shall submit an application to the Task Force at such time, in such manner, and containing such agreements, assurances, and information, as the Task Force determines to be necessary to carry out this section. At a minimum, the application shall contain-

< 1) a research proposal; (2) an assurance that the entity will

submit periodic reports to the Task Force containing a description of the progress made and findings obtained by the study; and

(3) an assurance that the entity will obtain at least 50 percent of the costs of

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17707 conducting research from non-Federal funds.

(e) ELIGIBILITY.-The Task Force shall establish eligibility criteria for an entity, including a land grant university, to receive grants under subsection <a>.

<O FEDERAL SHARE.-The Federal share of grants provided under this section shall be 50 percent.

(g) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to the Farm Safety Fund for purposes of carrying out this section $5,500,000 for each of the fiscal years 1991through1995.

TITLE III-PUBLIC HEALTH SEC. 301. GRANTS TO IMPROVE THE RECOGNITION,

CARE, AND REHABILITATION OF FARM INJURIES.

(a) ESTABLISHMENT.-The Secretary of Health and Human Services, acting through the Centers for Disease Control and in consultation with the Task Force, shall make grants, on a competitive basis, to States and other entities to carry out activities to improve the identification, treatment, and rehabilitation of farm injuries and farm illnesses.

(b) USE OF GRANTS.-An entity shall use grants awarded under subsection <a> to-

< 1) develop guidelines, standards, and protocols governing the identification, treatment, and rehabilitation of farm injuries and farm illnesses; and

(2) develop training materials and conduct training for paramedical, medical, nursing, and allied therapy personnel in the subject matter of the guidelines, standards, and protocols.

(C) AWARD OF GRANTS.-The Secretary of Health and Human Services shall award grants under this section in accordance with the priority established by the Task Force in accordance with section 103<e>. The Secretary of Agriculture may veto a disbursement.

(d) APPLICATION.-To be eligible for a grant under subsection (a), an entity shall submit an application to the Secretary of Health and Human Services at such time, in such manner, and containing such agreements, assurances, and information as the Secretary of Health and Human Services determines to be necessary to carry out this section. At a minimum, the application shall contain assurances that the entity will submit periodic reports to the Secretary of Health and Human Services and to the Task Force containing-

< 1) guidelines, standards, and protocols developed in accordance with subsection (b)(l); and

<2> a description of the training conducted in accordance with subsection (b)(2).

(e) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this section $15,000,000 for each of the fiscal years 1991 through 1995. SEC. 302. GRANTS TO STUDY INJURY MECHANISMS

AND REHABILITATION PROCESSES. (a) ESTABLISHMENT.-The Secretary of

Health and Human Services, acting through the Director of the National Institutes of Health and in consultation with the Task Force, shall award grants to, and enter into cooperative agreements with, public and private nonprofit entities to support a full range of research and development projects concerning farm injury mechanisms, and healing and rehabilitation processes for farm injuries.

(b) USE OF GRANTS.-An entity shall use grants awarded under subsection <a> to establish research and development projects involving-

< 1) basic and clinical research, including longitudinal and consortium-type multidisciplinary and clinical trials, on the causes of farm injuries;

(2) biomedical and behavorial studies on the causes of farm injuries;

(3) projects that take a multidisciplinary approach to preventing a specific farm injury; or

(4) demonstrations of advanced methods of diagnosing, preventing, treating, and managing farm injuries.

(C) AWARD OF GRANTS.-(1) PEER REVIEW.-The Director of the Na

tional Institutes of Health shall obtain peer review of research proposals, and shall seek the widest participation of qualified scientists in the Federal Government, State governments, colleges and universities, and the private sector to perform the review. The results of the review shall be presented to the Director of the National Institutes of Health.

(2) PRIORITY.-The Director of the National Institutes of Health shall award grants under this section in accordance with the priority established by the Task Force in accordance with section 103(e).

(d) APPLICATION.-To be eligible to receive a grant or enter into a cooperative agreement under this section, an entity shall submit an application to the Director of the National Institutes of Health at such time, in such manner, and containing such agreements, assurances, and information as the Director and the Task Force determine to be necessary to carry out this section. At a minimum, the application shall contain-

< 1) a research proposal; and <2> an assurance that the entity will

submit periodic reports to the Director and the Task Force containing a description of the progress made and the findings obtained by the research or development project.

(e) CONSULTATION AND COORDINATION.-In carrying out the provisions of this section, the Director of the National Institutes of Health shall consult with the Director of the National Institute on Neurological and Communicative Disorders and Stroke, the Director of the National Institute of Arthritis and Musculoskeletal and Skin Diseases, the Secretary of Agriculture, and the Directors of other relevant Institutes and Public Health Service Agencies.

(f) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this section $20,000,000 for each of fiscal years 1991 through 1995. SEC. 303. GRANTS TO INCREASE THE AVAILABILITY

AND QUALIFICATIONS OF CLINICAL STAFF AND RESEARCHERS IN FARM OCCUPATIONAL HEALTH.

(a) ESTABLISHMENT.-The Secretary of Health and Human Services, in consultation with the Task Force, shall award grants to and enter into cooperative agreements with public and private nonprofit entities to increase the availability and qualifications of clinical staff and researchers in farm occupational health.

(b) USE OF GRANTS.-An entity shall use grants awarded under subsection (a) to establish programs to-

< 1) attract new practitioners to careers in aspects of occupational medicine that include farm injury prevention, treatment, and rehabilitation; and

(2) attract new or young researchers to careers in fields involving clinical applications and research on the biomedical, behavorial, and rehabilitative aspects of farm injuries.

(c) AWARD OF GRANTs.-The Secretary of Health and Human Services shall award

grants under this section in accordance with the priority established by the Task Force in accordance with section 103(e).

Cd) APPLICATION.-To be eligible to receive a grant or enter into a cooperative agreement under this section, an entity shall submit an application to the Secretary of Health and Human Services at such time, in such manner, and containing such agreements, assurances, and information as the Secretary of Health and Human Services and the Task Force determine to be necessary to carry out this section. At a minimum, the application shall contain assurances that the State will submit periodic reports to the Secretary of Health and Human Services and to the Task Force containing a description of the programs established in accordance with subsection Cb).

(d) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this section $2,000,000 for each of fiscal years 1991through1995.

TITLE IV-PUBLIC EDUCATION

SEC. 401. FARM SAFETY EDUCATION. (a) ESTABLISHMENT.-The Secretary of Ag

riculture, in consultation with the Task Force, shall make grants to States and other entities for the establishment of farm safety education programs concerning safety in the workplace.

(b) USE OF GRANTS.-Entities shall use grants awarded under subsection Ca) to provide to farmers-

( 1) information and training concerning< A> reduction of occupational injury and

death rates; <B) reduction and prevention of exposure

to farm chemicals; <C> reduction of agricultural respiratory

diseases and dermititis; <D> reduction and prevention of noise in

duced hearing loss; <E> occupational rehabilitation of farmers

with physical disabilities; <F> farm accident rescue procedures for

emergency medical technicians and nonprofessionals; and

<2> appropriate rural health and safety information resources from the Rural Information Center, established at the National Agricultural Library.

(C) COORDINATION OF PROGRAMS.-Education programs funded by grants awarded in under subsection <a> shall be coordinated with State offices of rural health or other entities determined by the Secretary of Agriculture and the Task Force to be appropriate.

(d) AWARD OF GRANTS.-The Secretary of Agriculture shall award grants under this section in accordance with the priority established by the Task Force in accordance with section 103(e).

(e) APPLICATION.-To be eligible for a grant under subsection <a>. an entity shall submit an application to the Secretary at such time, in such manner, and containing such agreements, assurances, and information as the Secretary and the Task Force determine to be necessary to carry out this section. At a minimum, the application shall contain an assurance by any State applicant that, if the State contains a land-grant university, including Tuskegee University, the State and the land-grant university shall mutually determine the type of rural health and safety education program needed in the State.

(f) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this section, $5,000,000 for fiscal year 1991, $10,000,000 for fiscal year 1992,

17708 CONGRESSIONAL RECORD-SENATE July 17, 1990 $15,000,000 for fiscal year 1993, and $20,000,000 for fiscal year 1994 and each subsequent fiscal year. Amounts appropriated under this subsection shall remain available until expended.

TITLE V-TERMINATION SEC. 501. TERMINATION AND REPEAL.

(a) TERMINATION.-Effective September 30, 1995, the Task Force shall be abolished, and all programs established by this Act shall terminate.

 REPEAL.-Effective September 30, 1995, this Act shall be repealed.

SAFE FARMS FOR MINNESOTA [From the Minnesota Advisory Task Force

on Farm Safety, Feb. 7, 1990] "Beardsley injured on farm-Mara

thoner's leg caught in machinery," read the Star Tribune headline last November 14. Dick Beardsley is well known for his accomplishments as a long distance runner. He finished second in the 1982 Boston Marathon with one of the fastest times ever for an American runner. He is less well known for his career as a farmer. However, farming is how he and his wife make their living. A former farm production specialist for Land O'Lakes, Beardsley and his wife now manage a 50-cow dairy herd and raise food grain.

According to the news report, at 9 a.m. the day before, Beardsley was transferring com to a crib on his Shafter, Minnesota farm when his coveralls became caught in a tractor power take-off. His wife, Mary, who was in a nearby milk house, couldn't hear his calls for help over the hum of a bulk tank motor. When the motor shut off, she heard him whistle.

"I ran out of the milk house and I couldn't see him, but I knew that he had been working over there," she was quoted to say. "He said to call an ambulance .... I knew right away what had happened. I was afraid to go look at him."

Mary dialed 911 and returned to her husband. Beardsley had managed to reach the clutch to shut off the power take-off, but not before it tore off his coveralls and wrapped his left leg around the shaft.

"He was in a lot of pain and very impatient for the ambulance," Mary said. He was admitted to the hospital shortly before 10 a.m. Beardsley suffered ligament damage to his left knee and multiple cuts and bruises. Other than a broken wrist and cracked right ribs, no other bones were broken. "He's very, very lucky," said Mary. "It could have been much worse." Beardsley's running coach said, "It's the most feared of all accidents that can happen on the farm. It's just miraculous that he's alive."

Many other farm accident victims have not been so lucky. If their lives were spared, they may have lost a limb. If they are physically whole, they might be incapacitated by disease or chronic illness. These are the kind of stories which the Advisory Task Force on Farm Safety has heard in the course of its work to date.

LEGISLATURE CREATES TASK FORCE The Laws of Minnesota 1989, Chapter 350,

Article 17, established the advisory task force on farm safety. "The principal purpose of the task force," states the legislation, "is to determine ways in which the very high risks of accident and injury to farm operators and their families and employees can be minimized." The commissioner of agriculture was directed to provide staff assistance and to appoint 11 members broadly representative of groups with an in-

terest in farm safety. Pursuant to Subdivision 5 of the legislation, this document reports the task force's findings and recommendations for legislation on farm accident prevention and other public policy changes that would be likely to improve health and safety on Minnesota farms.

MEMBERS The following persons were appointed to

the task force: Linda Mork <farmer and Minnesota Farmers Union member>. Barb Ruhland <farmer and Minnesota Farm Bureau Federation member), Joe Lund (farm equipment manufacturer), Theresa Pesch <community health service director), David Nicolai <Cenex/Land O'Lakes>, Jim Faber <insurance industry representative>, George Foster <Minnesota Extension Service), Carol Bufton <Minnesota Safety Council), Myron Erickson <farm equipment salesperson), Senator Joe Bertram, and Representative Steve Dille. Assistant Commissioner of Agriculture Herb Halvorson was appointed chair. Staff work was done by Tony Anderson, a public affairs specialist with the Department of Agriculture. Further assistance was provided by Tom Brennan, a farm safety specialist with the Minnesota Extension Service.

ACTIVITIES AND WORK The task force met monthly beginning in

August, 1989. Among resources consulted by the task force were several specialists in farm safety. They included Dr. Paul Gunderson, director of the Center for Health Statistics at the Minnesota Department of Health; Dr. Kelley J. Donham, M.S., D.V.M., professor at the Institute of Agricultural Medicine and Occupational Health at the University of Iowa; Ken Ross, a safety and products liability attorney with the firm of Popham, Haik, Schnobrich & Kaufman Ltd. in Minneapolis; Randy Reinke and Jim Schmitt from Custom Products of Litchfield, Inc., a manufacturer of Roll-Over Protective Structures for tractors; Stearns County Sheriff Charlie Grafft; Keith Anderson, president of the Minnesota Association of Farm Mutual Insurance Companies. In addition, the task force reviewed Minnesota laws, educational videos, articles, and studies to generate an informed discussion.

Age distribution of Minnesota farm fatalities, 198 0-8 8

14 years and younger ........................... . 15 to 64 years ......................................... . 65 years and older ................................. .

Source: Minnesota Extension Service, 1989 FINDINGS

Percent 19 58 23

Farming is America's most dangerous occupation with 48 accidental deaths per 100,000 workers each year. The average for all industries is 11 deaths per 100,000 workers. The National Safety Council reports that in recent years, mining and construction have seen a reduction in the number of accidental deaths among workers in those industries, while agriculture has maintained its death rate.

Injuries and diseases among agricultural workers are more difficult to quantify, but are thought to be at least as serious as the death rate. In addition to farmers and farm workers, family members are often at risk of being killed or injured on the farm.

During the 1980s in Minnesota, there was an average of 48 farm work-related deaths per year. Children under age 15 accounted for 19 percent of the fatal accident victims, while 23 percent were senior citizens over the age of 65.

The Minnesota Extension Service finds that most Minnesota farm work-related deaths <30 per yer) involve machinery, with tractors being the most frequently cited <20 per year). Other sources of danger on the farm include animals, structures such as grain bins and confinement buildings, animal waste storage facilities, electrical boxes and fixtures, and chemicals.

At 10 deaths per year, tractor roll-overs are the single greatest cause of accidental deaths on Minnesota farms, followed by tractor run-overs at 4.6 deaths per year.

Minnesota farm fatalities by type, 1980-88 Amount

Suffocation............................................. 26 Tractor .................................................... 159 Machinery............................................... 90 Falls......................................................... 27 Other <electrocuted, crushed,

animal, truck/car).............................. 107 There are many contributing factors to

hazardous conditions on farms. Economic pressures often result in improper maintenance of equipment, taking shortcuts, farming at night after working another job, or putting children to work at what might be considered age-inappropriate tasks. A survey of Iowa farmers found that 65 percent of farm boys operate tractors between the ages of 10 and 12 while 27 percent operate tractors between 7 and 9 years of age. Economic pressures might also result in both parents working, leaving children without adequate child care.

Farmers continually face new situations involving oversized, unwieldy objects that are mechanized, under tension or alive, frequently when it is icy, noisy or dark. Farming is increasingly mechanized. Shields and guards are often taken off because they are awkward. Farming also requires working long hours at peak seasons such as harvest and planting. All these are conditions that make farmers more vulnerable to accidents. Farmers generally begin their occupation at an earlier age and continue to a later age than workers in other industries, often resulting in deficiencies in skill, strength or judgment at some point. Farmers also often work alone. When there is an accident, the nearest hospital or rescue team is likely to be many miles away. This is a growing problem as rural health care facilities continue to disappear.

The merger of farm work and family life, the desire to instill a work ethic in children, greater tolerance for injuries, reluctance to use available safety technology, a macho image and attitude often seen in young, aggressive farmers and an independent nature that resists regulation have also been cited as contributing factors to the dangers of farming. However, there are also off-farm factors contributing to these conditions.

There has been a general lack of awareness and concern among farm organizations, government and academia for farm safety. For example, the United States Department of Agriculture's only occupational safety and health position has gone unfilled for three years. The federal Occupational Safety and Health Administration is charged with enforcing safety conditions on farms, but is prohibited from inspecting "small" farms with 10 or fewer employees, in effect exempting most farms from safety regulations.

State and federal law requires children under age 16 who work as agricultural employees to have safety training certification before operating various farm implements. This requirement is waived if the children

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17709 work for or with their parents. Safety training is less and less available. There is no legal minimum age for children to perform any task on their parents' farm.

EXISTING FARM SAFETY EFFORTS

In some ways, Minnesota is ahead of neighboring states in farm safety promotion. For example, it is the only state in the 5-state area that employs a full time, university-based extension safety specialist. Minnesota is also the only one of t hese states that attempts to compile a record of farm work-related deaths each year.

Besides state-supported efforts, Minnesota is benefitting from the federally-supported work of Dr. Paul Gunderson in the area of farm accident surveillance. He and Carroll Rock, of the Minnesota Agricultural Statistics Service, are beginning a three-year farm accident survey project in 5 states in the north-central region, including Minnesota.

Minnesota tractor deaths by type, 1980-88 Percent

Overturned ............................................. 49 Runovers.......................... ....................... 21 Power takeoffs .............. ... ...................... 9 Falls from............................. ... ................ 8 Other....................................................... 8 Crushed/pinned..................................... 5

Source: Minnesota Extension Service, 1989. The township mutual insurance compa

nies have a fire safety inspectors network that monitors for minimum levels of insurability. For 1990, the Minnesota Farmers Union is including safety in its programming for 9-11 year olds.

As a result of the work of the Advisory Task Force on Farm Safety, several safety initiatives have been made privately by task force members. Barb Ruhland has brought educational materials to the attention of programming directors for the Agriculture in the Classroom program and the farm cooperative and 4-H program in her area of the state. Joe Lund, has organized a coalition of machinery manufacturers to participate in a joint safety effort. Linda Mork has brought safety education material to teachers from three school districts. They will be incorporating this material into their curriculum at the fourth grade level. She has also worked with her 4-H organization and the Minnesota Farmers Union youth program. Myron Erickson has had conversations promoting farm safety programming with many, including county sheriffs, major machinery dealers, medical clinics and technical colleges. Erickson successfully persuaded a major seed company to withdraw one of its advertisements showing a farmer unsafely leaping from the operator's station of a combine.

CONCLUSIONS

Based on its study, the Advisory Task Force on Farm Safety has reached the following conclusions:

Farm safety is a broad and multi-faceted challenge that requires continued study to produce a comprehensive state farm safety policy.

Farm families need assistance to identify potential safety and health hazards on the farmstead, and to provide incentives to correct those hazards. The farm mutual insurance companies have an infrastructure in place which currently performs this function at a very basic level.

Existing farm safety laws are too often forgotten, ignored, unenforced or otherwise not complied with. There are many good laws which, if complied with, would promote safer conditions for farmers, their families and employees.

Education is an important component in the farm safety effort. The University of Minnesota, the Minnesota Extension Service and other educational institutions such as the technical college system are important conduits to reach farm families. The safety specialist position in the University's Department of Agricultural Engineering is key in advancing farm safety in Minnesota.

Surveillance systems have been inadequate to identify the causes of the accidents, t he frequency and severity of accidents, and the resulting economic loss.

The effects of agricultural chemicals and the environmental conditions in animal confinement buildings on the long-term health of farm workers is not always known. There is insufficient scientific and medical research. There is also no adequate surveillance and reporting system for accidents or occupationally related health effects.

More effort is needed to increase the safety of new equipment, including more research and better education for design engineers about the importance of focusing on safety in the design process.

A significant amount of engineering research has been conducted to improve the safety of new farm equipment. Farm equipment tends to have a long life, however, and older, less safe equipment continues to be used. Promotion and incentives are needed to encourage retrofitting older equipment with new safety devices.

Research on the design of farmsteads, farm buildings and facilities is needed to explore alternative methods of arranging the farmstead for increased safety.

Study of the safety and health of farm families should include examination of the availability of health care facilities in rural Minnesota, as well as examination of the social and economic considerations related to child care for farm families where both parents are working.

FIRST PHASE RECOMMENDATIONS

The Task Force is continuing to develop recommendations for the state and will submit a complete report in one year. However, some initial steps can be suggested. As a first stage of action, the Advisory Task Force on Farm Safety recommends that the State of Minnesota take the following steps to promote farm safety:

1. Empower the Advisory Task Force on Farm Safety to continue its work to inventory existing farm safety programs, build coalitions, and develop recommendations for a comprehensive statewide farm safety and health program. The legislature should direct the task force to report again in one year and to clarify that the task force's appropriation is available for the entire biennium ending June 30, 1991. This action should be taken during this legislative session.

2. Approve and provide funding for a pilot project to develop a comprehensive farm safety audit, in cooperation with the farm mutual insurance companies, to identify safety and environmental health hazards on the farm, to recommend steps to eliminate those hazards, and to test the effectiveness of offering financial incentives to do so. See page six for a summary of the project. This action should be taken during this legislative session.

3. Direct the Department of Public Safety to seek greater compliance with existing farm safety laws through both education and enforcement. Examples include load limits, vehicle maintenance requirements and the use of lights and Slow Moving Vehicle signs on public roads, and the require-

ment for 4-H training certification for the employment of minors under age 16 for driving tractors and other self-propelled equipment. This action should be taken during this legislative session.

4. Continue to support the farm safety specialist position at the University of Minnesota Extension Service and increased educational activities by other educational institutions accessible to farm families. Funding for the farm safety specialist position should be made part of the permanent base funding for the university. This action should be taken during the 1991 legislative session.

5. Support a surveillance system to track the frequency, severity and causes of accidents and environmental health incidents on farms. The Minnesota Agricultural Statistics Service is currently developing a model for a statewide surveillance system with funding from the Federal Centers for Disease Control. State funding for a statewide survey every four years is recommended. This action should be taken during the 1993 and 1997 legislative sessions.

COMPREHENSIVE FARM SAFETY AUDITS

The task force is interested in promoting farm safety through the adoption of a voluntary farm safety audit program by the insurance industry. Minnesota's 118 township mutual insurance companies in Minnesota insure 85 percent of the state's making them excellent agents for promoting farm safety. These companies currently employ inspectors who evaluate farms for a minimum standard of insurability. They could go beyond this level to provide a comprehensive farm safety audit.

Such a program would incorporate education and an incentive to change attitudes and behavior. The incentive would be a discount on the insurance premium in exchange for meeting certain safety standards. In order for the industry to adopt this program, quantitative and qualitative measurements are needed to demonstrate its level of effectiveness.

A PILOT PROJECT

The Minnesota Extension Service's Department of Agricultural Engineering will design the research project and audit instrument in conjunction with the insurance industry. Township mutual insurance companies would be invited to participate in a twoyear pilot project to research the effectiveness of a farm safety audit program. Participating companies and their insured farmers would be divided into three groups: an experimental group in which insured farmers would be offered a free comprehensive safety audit by the insurance auditor, a second experimental group in which insured farmers would be offered the audit with the incentive of a discount on their insurance premium if they meet certain safety standards, and a control group which would be monitored without audits or incentives.

The auditors would be able to inform the farmers about where and how they can improve their safety rating, including what safety equipment to purchase. The farmers in the two experimental groups who accepted the audit would be offered a second, follow-up audit at a later date. In addition to the information collected for the insurance rating, other information useful for farm safety promotion and research could also be collected.

The farms visited in the first year would constitute the experimental and control groups. Measurements would be taken on the rate of acceptance of the offer to per-

17710 CONGRESSIONAL RECORD-SENATE July 17, 1990 form an audit, with and without the incentive. Their insurance claims before and after the audit would be analyZed. The initial safety ratings established by the audits would be complied to form a picture of the safety conditions on farms in Minnesota. The level of improvement in the follow-up audits would also be measured.•

By Mr. DASCHLE: S. 2860. A bill to amend the Internal

Revenue Code of 1986 to allow a deduction for travel expenses of certain loggers; to the Committee on Finance.

TRAVEL EXPENSE DEDUCTION FOR CERTAIN LOGGERS

e Mr. DASCHLE. Mr. President, I am introducing legislation today to address what I feel is an unfair ruling by the Internal Revenue Service. It is a situation where pure tax policy simply is not practical in its application to everyday life.

In my State of South Dakota, there is a national forest called the Black Hills Forest. It is a very large forest of some 6,000 square miles. Many of my colleagues may be familiar with it.

In this forest, there is a thriving logging industry that employs many South Dakotans. The logging companies that have operations there would not be able to do their business without the assistance of those who cut the logs in the first instance and haul or skid them to the trucks that carry the logs to the mill. These cutters and skidders, and the contractors who employ them, are usually referred to simply as loggers.

For a logger, traveling to work every day is very different from the experience of the average commuter. Loggers often travel as much as a couple of hours one way to the site where cutting is taking place. This may involve driving along miles of unpaved forest roads. It isn't possible for them to live closer to their work site, not only because of its location, but also because that site may change from month-to-month. In addition, loggers must have vehicles that are capable of traversing rough forest terrain.

Despite the number of miles the loggers must travel to work each day and the rough terrain, the IRS has said that their expenses of traveling from home to the work site and back again are nondeductible commuting expenses. This is true regardless of the location of the work site within the forest and its distance from the individual logger's home. For, according to the IRS, the entire 6,000-square-mile forest is the loggers' tax home for purposes of deducting mileage expenses.

Despite the IRS's reasons for taking this position, the effect of the rule on loggers in the Black Hills is unfair. It imposes a hardship on them and fails to recognize the special circumstances of their jobs. True, other taxpayers are not permitted to deduct commuting mileage expenses. But other taxpayers generally are not forced to

travel such long distances to and from work each day or to drive along dirt forest roads.

To rectify this situation, I am introducing legislation that would allow loggers, in the Black Hills or elsewhere, to deduct their mileage expenses incurred while traveling between their homes and the cutting site, so long as the mileage is legitimately related to their business. The measure would be effective starting with the current tax year.

I ask unanimous consent that the full text of the bill be printed in the RECORD following my remarks. I urge my colleagues, particularly those who have loggers in their State, to take a close look at it. This may seem a smaller matter in the scheme of what we do here in the Senate, but it would restore a measure of fairness to loggers who currently are subject to the IRS's whims.

There being no objection, the bill was ordered to be printed in the RECORD, as follows:


Representatives of the United States of America in Congress assembled, SECTION 1. DEDUCTION FOR TRAVEL EXPENSES OF

CERTAIN LOGGERS. (a) IN GENERAL.-Section 162 of the Inter

nal Revenue Code of 1986 <relating to trade or business expenses) is amended by redesignating subsection <m> as subsection (n) and by inserting after subsection (1) the following new subsection:

"(m) SPECIAL TRAVEL EXPENSE RULES FOR LOGGERS.-

"(!) IN GENERAL.-Notwithstanding subsection (a)(2) and section 262, in the case of an individual, there shall be allowed as a deduction under this section such individual's travel expenses in connection with the trade or business of logging <including the miles to and from such individual's home).

"(2) TRADE OR BUSINESS OF LOGGING.-For purposes of this section, the term 'trade or business of logging' means the trade or busi· ness of the cutting and skidding of timber."

(b) EFFECTIVE DATE.-The amendments made by subsection (a) shall apply to taxable years beginning after December 31, 1989.•

By Mr. ROTH: S. 2862. A bill to prohibit revenue re

covery firms and certain auditors from receiving compensation on a percentage of findings basis, and for other purposes; to the Committee on Labor and Human Resources.

FAIR AUDITING ACT •Mr. ROTH. Mr. President, national spending for health care services topped $500 billion for the first time in 1987, and health care costs are rising much faster than the rate of inflation. Hospital care expenditures are the largest component, 39 percent, of this mammoth figure. I am introducing a bill today to help limit these rapidly rising figures.

Of course, rising health care costs affect virtually every American, because we all need professional health

care at one time or another. Moreover, even if you are perfectly healthy, rising health care costs affect you as a Federal taxpayer, because the Federal Government funds approximately 30 percent of all health care spending in our Nation.

A few weeks ago, the Permanent Subcommittee on Investigations, on which I serve as ranking member, held hearings on a relatively new and rapidly expanding type of business, known as revenue recovery. Revenue recovery firms are companies which contract with hospitals to recover money owed the hospital for services rendered but not billed. These companies operate nationwide. PSI heard evidence that some of these companies were conducting unfair audits on medical bills. Many of the audits embellished unbilled charges while down playing, or ignoring, the instances where the hospital had charged too much. In short, too often revenue recovery firms are not presenting a clean, fair bill.

The hearing revealed many aspects of revenue recovery practices that were less than ethical, but the one key feature that disturbs me is their compensation system. Most revenue recovery firms are compensated for their audits with a percentage of the lost charges they recover for the hospital. Therefore, they have a vested interest in the results of their audits. I am concerned about the incentives to cheat which are created by the contingency fee arrangements under which many revenue recovery firms operate. I am equally concerned about insurance company auditors who are paid a percentage of what they are able to knock off a hospital bill. Both arrangements potentially affect the impartiality and independence of the auditor.

My bill, which is called the Fair Auditing Act of 1990, does away with percentage-based reimbursement for auditors. The bill requires the Secretary of Health and Human Services to promulgate regulations to prohibit any hospital, medical clinic or insurance company from paying their auditors on a percentage-based compensation system. It is a simple concept, but it does away with biased auditing by either health care providers or insurers.

Now I recognize there is a legitimate role for medical auditors whether they work for insurers or hospitals. I certainly don't suggest that every company involved in the revenue recovery business is operating improperly. Indeed, several of the big eight accounting firms have revenue recovery sidelines, although I should add that the business practices of these accounting firms differ considerably from the practices of the revenue recovery firms which were the subject of the PSI hearings. Moreover, many hospitals are facing difficult financial

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17711 times, and they deserve every penny which is honestly owed them.

Some may argue that this is a private dispute between hospitals and insurance companies and that the Federal Government need not be concerned if some revenue recovery firms are cheating some insurance companies. Well, I emphatically reject this notion. First, because the Federal Government and the U.S. taxpayers are directly affected. The Federal Government pays more than $8 billion per year as its share of health insurance premiums for Federal workers. Those premiums are experienced based. That is, if the insurance companies' pay-outs increase, the premiums they charge increase. Moreover, the longstanding battle between health providers and health insurers carries with it heavy administrative costs. And who do you think ends up paying the price for these two sides to battle it out? The effect is ultimately the same, whether insurance companies or patients are being gouged. It drives up costs. In the end, you can bet that it is the consumer who feels the pinch, whether it is through an inflated hospital bill or an inflated premium.

Finally, it is my hope that these two industries will synchronize their opposing energies and regulate themselves. I have sent communications to both the American Hospital Association and the Health Insurance Association of America urging that they jointly formulate medical auditing guidelines. I believe this approach is preferable to compulsory legislation. However attempts at self-regulation by the industry have failed in the past, and I feel strongly enough about this issue to pursue legislation in the absence of any agreement. Thus, I am introducing the Fair Auditing Act of 1990 as a first step toward implementing reasonable corrective action.

I ask unanimous consent that the text of the bill be printed in the RECORD.



Representatives of the United States of America in Congress assembled, SECTION I. SHORT TITLE.

This Act may be cited as the "Fair Auditing Act of 1990". SEC. 2. DEFINITIONS.

As used in this Act: (1) REVENUE RECOVERY FIRM.-The term

"revenue recovery firm" means an entity that conducts audits of the patient accounts of hospitals to determine whether any unbilled charges are outstanding.

(2) SECRETARY.-The term "Secretary" means the Secretary of Health and Human Services.

(3) THIRD PARTY AUDITOR.-The term "third party auditor" means an entity that conducts audits of medical or health insurance companies to determine the veracity of medical charges of patients.

SEC. 3. PROHIBITION. The Secretary shall promulgate regula

tions to ensure that any hospital, medical clinic or insurance company that receives Federal assistance, or any other entity that receives Federal assistance that is determined appropriate by the Secretary, shall not pay compensation to a revenue recovery firm or a third party auditor if such compensation is based on a percentage of the revenue findings <including unbilled patient charges or permissible reductions in charges> of an audit conducted by such firm or auditor.•

By Mr. KENNEDY (for himself, Mr. HATCH, Mr. BINGAMAN, Mr. SIMON, Mr. PELL, Mr. DURENBERGER, Mr. METZENBAUM, Mr. JEFFORDS, Ms. MIKULSKI, Mr. DODD, and Mr. ADAMS):

S. 2863. A bill to amend the Stewart B. McKinney Homeless Assistance Act and the Public Health Service Act to reauthorize certain health, education, training, and community services programs, and for other purposes; to the Committee on Labor and Human Resources. STEWART B. MC KINNEY HOMELESS HEALTH

CARE, EDUCATION, TRAINING, AND COMMUNITY SERVICES AMENDMENTS Mr. KENNEDY. Mr. President,

today I am introducing, on behalf of myself and Senators HATCH, BINGAMAN, SIMON, PELL, DURENBERGER, METZENBAUM, JEFFORDS, MIKULSKI, DODD and ADAMS, critical legislation to reauthorize the Stewart B. McKinney Homeless Assistance Act.

According to the Partnership for the Homeless, the number of men, women, and children living on the streets of America increased by nearly 20 percent in 1989 alone. The number of homeless families has doubled over the last decade.

Four year ago, Congress addressed this worsening tragedy and enacted the McKinney Homeless Assistance Act to provide emergency food, shelter, health and mental health care, job training, and education for homeless children and adults.

The amendments proposed today will extend the McKinney Act and make it more effective in addressing the needs of the homeless.

The bill will extend all of the McKinney Act programs for 3 years, through 1993. In 1991, the bill will authorize $253 million for emergency services to homeless.

Of this total amount, $69 million will be available to expand and improve the Health Care for the Homeless Program. An additional $28.5 million will be available to continue demonstration grants dealing with substance abuse and mental health. The health needs of the homeless are substantial, and these programs are making a difference across the country-often between life and death.

The bill also reauthorizes job training, community service, and education programs. The Job Training Program

would be reauthorized at $15 million in 1991, and a larger percentage of these funds will be available to serve homeless veterans. Provisions proposed by Senator SIMON have been included in the bill to promote better coordination of services and to ensure that grants will be made to areas most in need.

This bill also reauthorizes the Emergency Community Services Program for the homeless at $50 million, to ensure that homeless individuals have the case management they desperately need.

This measure also makes essential changes in the education provisions of the act. When first authorized, these provisions were intended to remove barriers that deny homeless children access to education. However, the Education Department reports that at least 28 percent of homeless schoolaged children still do not attend school. Education is the gateway to a better life for homeless children. Without it, these children may never escape the tragic cycle of poverty and homelessness.

The Education Department, State coordinators, school districts, and advocates have all reported that numerous unreasonable barriers are keeping homeless children out of school. These include residency requirements, delays in transfer of school records, burdensome documentation requirements, lack of transportation, unrealistic guardianship rules, and other less obvious requirements. We need to eliminate these barriers, so that homeless children have access to what may be the only normal experience they will have during the time they are homeless.

This reauthorization strengthens the existing education provisions, and expands the McKinney Act to address these barriers and facilitate the enrollment and attendance of homeless children in school. It authorizes $50 million in assistance to cover the extra costs of expediting the evaluation of homeless children and youth for special services, facilitating the transfer of records, and providing transportation to get children into school. It also authorizes before- and after-school programs, tutoring, and counseling to ensure that once in school, homeless students are more likely to remain and to learn.

At Senator HATCH's urging, we have also included a comprehensive evaluation component in this package. The various departments involved in administering the McKinney Act are currently conducting a review of all Federal programs serving the homeless, in order to improve the act. I welcome these efforts, and our evaluation provisions signals the Senate's commitment to working closely with the administration.

17712 CONGRESSIONAL RECORD-SENATE July 17, 1990 Finally, a new $25 million Demon

stration Program authorized by the bill will provide grants to prevent the wrongful separation of children from their families and to prevent abuse and neglect of these children.

McKinney Act programs work. In Massachusetts, McKinney funds provided 400 new shelter beds for individuals, and built 9 new family shelters with 178 beds. The Boston Health Care for the Homeless Project was able to provide over 1,400 homeless people with health care; 600 veterans have been placed in housing and jobs. The list of people helped by the McKinney Act goes on and on.

Yet the list of those who need help is much longer. The McKinney Act has helped many homeless Americans, but there are many more who have not been served. McKinney services are needed now more than ever, and I urge my colleagues to support this essential and compassionate legislation.

By Mr. DOMENIC!: S. 2864. A bill to establish the Na

tional Atomic Museum; to the Committee on Energy and Natural Resources.

NATIONAL ATOMIC MUSEUM CHARTER ACT e Mr. DOMENIC!. Mr. President, I am today introducing the National Atomic Museum Charter Act, which would grant a congressional charter to the National Atomic Museum. With approval of this charter, this important museum will be able to receive and use gifts to benefit the public and add to its excellent facilities.

The National Atomic Museum is located in Albuquerque, NM, in proximity to Sandia National Laboratory. New Mexico is the birthplace of the atomic age and is the location of Los Alamos National Laboratories which developed the atomic bomb. New Mexico's National Labs were the principal locations for research and development of the nuclear weapons that help bring World War II to an end.

Opened as the Sandia Atomic Museum in October 1969, the museum houses the most comprehensive collection of unclassified nuclear technology, including exhibits explaining the development of the chain reaction, the Manhattan Project, and the atomic theory of matter.

New exhibits and films are being planned on a number of related subjects, including the medical uses of nuclear energy. Emphasis is being placed on public understanding and public awareness, not only of atomic energy, but also the people and scientists involved in the development of the atomic era. It is fair to say, I believe, that the story of the development of atomic energy is not fully understood by many Americans. The museum performs a valuable service, educating the public on this fascinating and important aspect of our history.

As a measure of its success, over 200,000 people visited the museum last year. The number of visitors will surely grow as the use of science museums as educational tools becomes more important. This unique facility, in its historic setting, provides the people of the world with an informative and important resource. It provides a view of the past, as well as thought-provoking insights into the future.

Mr. President, I would like to acknowledge the efforts of the National Atomic Museum Committee, particularly Mr. Herman Roser of Albuquerque and am proud to introduce this legislation. I ask unanimous consent that a copy of the bill be printed at this point in the RECORD.


S.2864 Be it enacted by the Senate and House of

Representatives of the United States of America in Congress assembled, SECTION 1. ESTABLISHMENT OF NATIONAL ATOMIC

MUSEUM. The museum exhibiting materials relating

to nuclear science, atomic energy, atomic weapons, and peacetime uses of atomic energy, operated by the Secretary of Energy, acting through the Manager of the Albuquerue field office of the Department of Energy <referred to as the "Secretary"), on the grounds of the Kirtland Air Force Base, New Mexico, is established as the National Atomic Museum (referred to as the "museum"). SEC. 2. MISSION.

The mission of the museum shall be to(1) provide for the benefit and education

of the public a readily accessible repository of information and materials reflecting the Atomic Age <in a setting historically significant in the development of nuclear energy>;

<2> serve as an educational resource for students, scholars, and the public in the field of nuclear science; and

(3) preserve, interpret, and exhibit to the public memorabilia, models, and artifacts of significance <and replicas thereof) in the development of nuclear science, atomic energy, atomic weapons, and peacetime uses of atomic energy, with emphasis on the history of atomic weapons and other areas of research, development, and production conducted by laboratories and facilities of the Department of Energy and its predecessor agencies. SEC. 3. ADMINISTRATION.

<a> IN GENERAL.-(1) The museum shall be administered by the Secretary under such arrangements for the use of facilities at Kirtland Air Force Base as are satisfactory to the Secretary and the Secretary of the Air Force, in consultation with and with the cooperation of the heads of departments and agencies of the United States that have functions relating to the development and use of nuclear energy.

<2> The Secretary shall-(A) appoint a director of the museum to

be responsible for the management and operation of the museum; and

 allocate to the museum sufficient funds for-

m the operation and maintenance of the museum;

(ii) the conduct of special activities at the museum; and

<iii) the making of necessary capital improvements to the museum.

(b) GIFTS TO THE MUSEUM.-The carrying out of this Act shall be considered to be the work of the Department of Energy for the purposes of section 652 of the Department of Energy Organization Act <42 U.S.C. 7262).

( C) AUTHORIZED ACTIVITIES.-The Secretary may-

(1) operate a museum shop for sale to the public of mementos, replicas of artifacts and memorabilia, literature, and other items of an informative or educational nature relating to the contents of the museum and the development and use of nuclear energy;

(2) mount displays, hold exhibitions, and conduct seminars on the development of nuclear energy, on or off the museum premises, and make reasonable charges to defray the costs thereof; and

<3> conduct other activities appropriate to the operation of a museum, including the acquisition of materials for and the operation of a library, the storage and preservation of artifacts and materials, and the preparation and distribution of literature, advertising, and other forms of communication to acquaint the public with the museum. SEC. 4. USE OF VOLUNTEERS.

<a> IN GENERAL.-Notwithstanding section 1342 of title 31, United States Code, the Secretary may recruit, train, and accept the services of volunteers to assist in the interpretive services and other functions and activities of the museum.

(b) STATUS OF VoLUNTEERS.-A volunteer employed under subsection <a> shall not be considered to be an employee of the United States except for the purposes of-

0 > sections 5703 and 5901 and chapter 81 of title 5, United States Code; and

<2> chapter 171 of title 28, United States Code.

(C) ADVISORY COMMITTEES.-The Secretary may establish permanent or temporary committees of persons with expertise in appropriate subject areas to provide studies, consultation, advice, or assistance to the museum regarding-

{1) improvements in the museum's facilities and in its operation and maintenance;

(2) proposed changes in the location, size, mission, or nature of the museum;

(3) solicitation of gifts and volunteer services for the museum; and

(4) other matters of concern to the museum.e

ADDITIONAL COSPONSORS

s. 15

At the request of Mr. CRANSTON, the name of the Senator from New Jersey [Mr. LAUTENBERG] was added as a consponsor of S. 15, a bill to amend the Public Health Service Act to improve emergency medical services and trauma care, and for other purposes.

s. 160

At the request of Mr. THURMOND, the name of the Senator from California. [Mr. WILSON] was added as a consponsor of S. 160, a bill to require the construction of a memorial of Federal land in the District of Columbia or its environs to honor members of the Armed Forces who served in World

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17713 War II and to commemorate United States participation in that conflict.

s. 307

At the request of Mr. DODD, the name of the Senator from Illinois [Mr. DIXON] was added as a cosponsor of S. 307, a bill to provide for the standardization of advertised yields on savings accounts and investments, to require the uniform disclosure of the key costs of such accounts and investments, and for other purposes.

s. 1422

At the request of Mr. FOWLER, the name of the Senator from Nevada [Mr. REID] was added as a cosponsor of S. 1422, a bill to provide for the improved management of the nation's water resources.

s. 1860

At the request of Mr. BOREN, the name of the Senator from Oklahoma [Mr. NICKLES] was added as a cosponsor of S. 1860, a bill to amend title 38, United States Code, to require the Secretary of Veterans Affairs to furnish outpatient medical services for any disability of a former prisoner of war.

s. 1974

At the request of Mr. HARKIN, the name of the Senator from Pennsylvania [Mr. HEINZ] was added as a cosponsor of S. 1974, a bill to require new televisions to have built in decoder circuitry.

s. 2041

At the request of Mr. SYMMS, the name of the Senator from Hawaii [Mr. INOUYE] was added as a consponsor of S. 2041, a bill to amend title XVIII of the Social Security Act to provide uniform national conversion factors for services of certified registered nurse anesthetists.

s. 2186

At the request of Mr. McCONNELL, the names of the Senator from North Carolina [Mr. SANFORD] and the Senator from Montana [Mr. BAucusl were added as cosponsors of S. 2186, a bill to repeal the provisions of the Revenue Reconciliation Act of 1989 which require the withholding of income tax from wages paid for agricultural labor.

s. 2284

At the request of Mr. KASTEN, the name of the Senator from Washington [Mr. GORTON] was added as a cosponsor of S. 2284, a bill to amend the Federal Food, Drug, and Cosmetic Act to define the term light or reduced fat butter, and for other purposes.

s. 2346

At the request of Mr. REID, the name of the Senator from Hawaii [Mr. AKAKAJ was added as a cosponsor of S. 2346, a bill to prohibit certain practices in the raising of calves, and for other purposes.

s. 2413

At the request of Mr. KERRY, the names of the Senator from California [Mr. CRANSTON] and the Senator from

Massachusetts [Mr. KENNEDY] were added as cosponsors of S. 2413, a bill to make eligibility standards for the award of the Purple Heart currently in effect applicable to members of the Armed Forces of the United States who were taken prisoner or taken captive by a hostile foreign government or its agents or a hostile force before April 15, 1962, and for other purposes.

s. 2436

At the request of Mr. CRANSTON, the name of the Senator from North Carolina [Mr. SANFORD] was added as a cosponsor of S. 2436, a bill to amend the Peace Corps Act to extend the authorizations of appropriations for the Peace Corps through fiscal year 1992, to provide for limited exceptions to the limitation on reemployment by the Peace Corps, and to establish a Peace Corps foreign fluctuations account, and for other purposes.

s. 2653

At the request of Mr. BURNS, the name of the Senator from Wisconsin [Mr. KASTEN] was added as a cosponsor of S. 2653, a bill to permit States to waive application of the Commercial Motor Vehicle Safety Act of 1986 with respect to vehicles used to transport farm supplies from retail dealers to or from a farm, and to vehicles used for custom harvesting, whether or not such vehicles are controlled and operated by a farmer.

s. 2675

At the request of Mr. KOHL, the names of the Senator from Ohio [Mr. METZENBAUM], and the Senator from Illinois [Mr. DIXON] were added as cosponsors of S. 2675, a bill to amend title 13, United States Code, to provide for the enumeration in the census of members of the Armed Forces assigned outside of the United States, and for other purposes.

s. 2689

At the request of Mr. HEINZ, the name of the Senator from Pennsylvania [Mr. SPECTER] was added as a cosponsor of S. 2689, a bill to amend title XVIII of the Social Security Act to provide for medicare coverage of the costs of home hemodialysis staff assistance, and for other purposes.

s. 2699

At the request of Mr. RoTH, the name of the Senator from Tennessee [Mr. SASSER] was added as a cosponsor of S. 2699, a bill to amend title 31 of the United States Code to restrict the use of appropriations amount available for definite periods.

s. 2737

At the request of Mr. ARMSTRONG, the names of the Senator from California [Mr. WILSON] , the Senator from Utah [Mr. GARN] , the Senator from Washington [Mr. GORTON], the Senator from Mississippi [Mr. COCHRAN], the Senator from South Dakota [Mr. PRESSLER], the Senator from Alaska [Mr. MURKOWSKI], the Senator from

New York [Mr. D'AMATO], the Senator from Idaho [Mr. SYMMS], the Senator from Texas [Mr. GRAMM], the Senator from South Carolina [Mr. THURMOND], the Senator from Alaska [Mr. STEVENS], the Senator from Indiana [Mr. COATS], the Senator from Hawaii [Mr. INOUYE], the Senator from Nevada [Mr. BRYAN], the Senator from North Dakota [Mr. CONRAD], the Senator from Alabama [Mr. SHELBY], the Senator from Illinois [Mr. DIXON], the Senator from Oklahoma [Mr. BOREN], the Senator from New Jersey [Mr. BRADLEY], the Senator from North Carolina [Mr. SANFORD], the Senator from New Jersey [Mr. LAUTENBERG], the Senator from Arizona [Mr. DECONCINI], the Senator from Connecticut [Mr. DODD], the Senator from Tennessee [Mr. SASSER], and the Senator from Kansas [Mr. DoLEJ were added as cosponsors of S. 2737, a bill to require the Secretary of the Treasury to mint a silver dollar coin in commemoration of the 38th anniversary of the ending of the Korean war and in honor of those who served.

s. 2754

At the request of Mr. BIDEN, the names of the Senator from Washington [Mr. ADAMS], the Senator from Michigan [Mr. RIEGLE], and the Senator from Connecticut [Mr. LIEBERMAN] were added as cosponsors of S. 2754, a bill to combat violence and crimes against women on the streets and in homes.

s. 2779

At the request of Mr. INOUYE, the names of the Senator from New York [Mr. D'AMATO], the Senator from Indiana [Mr. COATS], the Senator from Arizona [Mr. DECONCINI], the Senator from Kentucky [Mr. FORD], the Senator from Florida [Mr. GRAHAM], the Senator from Massachusetts [Mr. KERRY], the Senator from Florida [Mr. MACK], and the Senator from Colorado [Mr. WIRTH] were added as cosponsors of S. 2779, a bill entitled the "Iraq Sanctions Act of 1990".

s. 2790

At the request of Mr. BINGAMAN, the name of the Senator from Oregon [Mr. HATFIELD] was added as a cosponsor of S. 2790, a bill to promote educational partnerships and establish education programs involving Federal laboratories and public schools, colleges, and universities to promote and enhance science, mathematics, and engineering education at all educational levels, and for other purposes.

s. 2793

At the request of Mr. AKAKA, the name of the Senator from Alaska [Mr. STEVENS] was added as a cosponsor of S . 2793, a bill to amend the United States Institute of Peace Act to honor the memory of the late Spark M. Matsunaga, United States Senator from

17714 CONGRESSIONAL RECORD-SENATE July 17, 1990 the State of Hawaii, and for other purposes.

s. 2813

At the request of Mr. GRAHAM, the name of the Senator from Washington [Mr. GORTON] was added as a cosponsor of S. 2813, a bill to authorize the minting of commemorative coins to support the training of American athletes participating in the 1992 Olympic Games.

s. 2819

At the request of Mr. MOYNIHAN, the name of the Senator from Connecticut [Mr. DODD] was added as a cosponsor of S. 2819, a bill to amend title XVIII of the Social Security Act to provide coverage of services rendered by community mental health centers as partial hospitalization services, and for other purposes.

s. 2844

At the request of Mr. MITCHELL, the name of the Senator from Arizona [Mr. McCAIN] was added as a cosponsor of S. 2844, a bill to amend the Public Health Service Act to provide for the establishment, with State loan repayment programs, of demonstration programs to recruit and train physicians and other health care personnel to provide medical services in rural communities, and for other purposes.

s. 2858

At the request of Mrs. KASSEBAUM, the name of the Senator from Arizona [Mr. McCAIN] was added as a cosponsor of S. 2858, a bill to amend the Civil Rights Act of 1964 to strengthen civil rights laws that ban discrimination in employment, and for other purposes.

SENATE JOINT RESOLUTION 277

At the request of Mr. LUGAR, the names of the Senator from Maryland [Ms. MIKULSKI] and the Senator from Pennsylvania [Mr. HEINZ] were added as cosponsors of Senate Joint Resolution 277, a joint resolution designating October 6, 1990, as "German-American Day."


At the request of Mr. CRANSTON, the name of the Senator from Louisiana [Mr. JOHNSTON] was added as a cosponsor of Senate Joint Resolution 283, a joint resolution to commemorate the centennial of the creation by Congress of Yosemite National Park.


At the request of Mr. KASTEN, the name of the Senator from Connecticut [Mr. LIEBERMAN] was added as a cosponsor of Senate Joint Resolution 329, a joint resolution to designate the week of June 17, 1990 through June 23, 1990 as "National Week to Commemorate the Victims of the Famine in Ukraine, 1932-1933," and to commemorate the Ukrainian famine of 1932-1933 and the policies of Russification to suppress Ukrainian identity.


At the request of Mr. JOHNSTON, the names of the Senator from Hawaii [Mr. INOUYE] and the Senator from Oklahoma [Mr. NICKLES] were added as cosponsors of Senate Joint Resolution 335, a joint resolution designating July 1, 1990 as "Imported Oil Dependence Day."


At the request of Mr. SIMON, the name of the Senator from Mississippi [Mr. COCHRAN] was added as a cosponsor of Senate Joint Resolution 337, a joint resolution designating Labor Day weekend, September 1 through 3, 1990, as "National Drive for Life Weekend."

SENATE CONCURRENT RESOLUTION 91

At the request of Mr. HATFIELD, the name of the Senator from New York [Mr. MOYNIHAN] was added as a cosponsor of Senate Concurrent Resolution 91, a concurrent resolution expressing the sense of the Congress with respect to achieving common security in the world by reducing reliance on the military and redirecting resources toward overcoming hunger and poverty and meeting basic human needs.

AMENDMENT NO. 213 1

At the request of Mr. MURKOWSKI, his name was added as a cosponsor of amendment No. 2131 proposed to S. 2104, a bill to amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes.

At the request of Mrs. KASSEBAUM, the names of the Senator from Arizona [Mr. McCAIN] and the Senator from Indiana [Mr. LUGAR] were added as cosponsors of amendment No. 2131 proposed to S. 2104, supra.

SENATE RESOLUTION 309-CLARIFYING THE SPENDING AUTHORITY OF THE COMMITTEE ON VETERANS' AFFAIRS Mr. BOSCHWITZ (for Mr. MURKOW-

SKI) submitted the following resolution; which was considered and agreed to:

S. RES. 309 Resolved, That (a) section 18 of Senate

Resolution 66, agreed to February 28, 1989 OOlst Congress, 1st Session) is amended-

(1) in subsection (b) by inserting after "$1,123,937" the following: ", of which amount not to exceed $5,000 may be expended for the training of the professional staff of such committee <under procedures specified in section 202(j) of the Legislative Reorganization Act of 1946, as amended)"; and

(2) in subsection (c) by inserting after "$1,148,131" the following: ", of which amount not to exceed $5,000 may be expended for the training of the professional staff of such committee <under procedures specified by section 202(j) of the Legislative Reorganization Act of 1946, as amended)".

(b) The amendments made by subsection (a) are effective on March l, 1989.

AMENDMENTS SUBMITTED

CIVIL RIGHTS ACT OF 1990

DOLE AMENDMENTS NOS. 2214 THROUGH 2217

<Ordered to lie on the table.) Mr. DOLE submitted four amend

ments intended to be proposed by him to the bill <S. 2104) to amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes; as follows:

AMENDMENT No. 2214 On page 12, strike out line 1 through line

22, and insert in lieu thereof the following: SEC. 8. PROVIDING FOR DAMAGES IN CASES IN IN

TENTIONAL DISCRIMINATION. Section 706(g) of the Civil Rights Act of

1964 <42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "In fashioning remedies for an unlawful employment practice <other than an unlawful employment practice established in accordance with section 703(k)), the court may require the respondent to pay the complaining party an amount not to exceed $60,000 if the court finds-

" (1) that back pay cannot be awarded with respect to that practice;

" (2) that an additional equitable remedy beyond those otherwise available is needed to deter the respondent from continuing to engage in such unlawful employment practices; and

"(3) that such an award is otherwise justified by the equities. All issues in cases arising under this title shall be heard and determined by a judge, as required under subsection (f).".

AMENDMENT No. 2215 On page 12, strike out line 1 through 22,

and insert in lieu thereof the following: SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN


1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "In fashioning remedies for an unlawful employment pratice <other than an unlawful employment practice established in accordance with section 703(k)), the court may require the respondent to pay the complaining party an amount not to exceed $100,000 if the court finds-

"(1) that back pay cannot be awarded with respect to that practice;

"(2) that an additional equitable remedy beyond those otherwise available is needed to deter the respondent from continuing to engage in such unlawful employment practices; and


AMENDMENT No. 2216 On page 8, strike out line 5 and all that

follows through line 19 on page 9, and insert in lieu thereof the following:

"(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice specifically required by a litigated or consent judgment or

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17715 order resolving a claim of employment discrimination under this title may not be challenged in a claim under the United States Constitution or under Federal civil rights laws by a person who, at the time of the entry of such judgment or order, was an applicant for employment with, or an employee of, the entity covered by such decree whose interests would likely be affected by the consent decree, and who had-

"(A) actual notice that such judgment or order would likely affect the interests of such person and that later challenge by such person would be barred; and

"(B) a reasonable opportunity to challenge such judgment or order.".

AMENDMENT No. 2217 On page 3, line 6, strike out the dash and

all that follows through line 16 and insert in lieu thereof the following: "that the challenged employment practice has a manifest relationship to the employment in question or has a demonstrable relationship to the successful performance of the jobs for which it was used.".

BALANCED BUDGET AMEND-MENT TO THE CONSTITUTION

KASTEN AMENDMENT NO. 2218 <Ordered referred to the Committee

on the Judiciary.) Mr. KASTEN submitted an amend

ment intended to be proposed by him to the joint resolution <S.J. Res. 183) proposing an amendment to the Constitution relating to a Federal balanced budget, as follows:

On page 2, between lines 6 and 7, insert the following new section:

"SEC. 2. Total receipts for any fiscal year may not increase by a rate greater than the rate of increase in national income in the previous calendar year ending before such fiscal year, unless % of the whole number of each House of Congress shall have passed a bill directed solely to approving specific additional receipts and such bill has become law."

Redesignate the following sections accordingly. TAX LIMITATION AMENDMENT TO SENATE JOINT

RESOLUTION 183

Mr. KASTEN. Mr. President, today, the House of Representatives is scheduled to vote on a balanced budget amendment to the Constitution. The Senate will soon consider a similar amendment sponsored by Senator SIMON. These amendments would require Congress to approve a balanced budget each year, prohibiting a budget deficit unless it is supported in each House by a three-fifths supermajority vote.

Mr. President, while I support these measures, I am concerned that these proposed amendments could lead to higher taxes and greater Federal spending. Under the balanced budget plan sponsored by Senator SIMON, taxes could be increased by a simple majority vote.

Without a strong provision to limit tax increases, I fear that this balanced budget plan could give Congress an in-

centive to raise taxes in the name of balancing the Federal budget. Under this amendment, taxes and spending could conceivably rise from their current levels of GNP to 40-50 percent of GNP.

In other words, you can have balanced budgets that go up. High levels of Government taxes and spending as a percentage of GNP would lead to an "unbalanced" economy with higher unemployment, lower productivity, and reduced private sector activity.

Look at the evidence from around the world: The track record of economies with large public sectors in promoting economic growth, jobs, and rising living standards is clearly inferior to low-tax, free market economies.

For example, in the 1960's the public sector in Europe averaged about 32 percent of GNP. By the early 1980's, the European public sector had grown to 50 percent of GNP; up to 60 percent in some countries. High taxes stifled productive incentives. Huge public sector bureaucracies crowded out private-sector opportunities. And as a result, real growth in Western Europe declined from 4 percent per year in the 1960's to less than 1 percent in the early 1980's.

By contrast, those economies with relatively smaller public sectors, like Japan, the Asian Tigers, and the United States, created millions of new jobs-over 20 million in the United States alone during the 1980's.

The key to economic prosperity is to limit the growth of both taxes and spending as a share of our economy, leaving more economic resources in the hands of the people.

The amendment I am proposing to Senate Joint Resolution 183 would require aa three-fifths supermajority vote to raise taxes at a rate beyond the growth rate of the economy. Thus, if GNP rose three percent in a given calendar year, tax revenue increases could not exceed that rate in the next fiscal year.

This language is essentially the same language in the balanced budget/tax limitation amendment passed by the U.S. Senate in 1982. If added to Senate Joint Resolution 183, this amendment would eliminate the bias toward raising taxes-and restrain the growth of taxes and spending as a share of the economy.

I think this amendment is needed now more than ever because the clamor for new taxes has never been louder. But a tax increase is simply not justified by the basic economic facts. First, the Federal Government today collects 19.6 percent of our Nation's output in taxes. That's almost one-fifth of the wealth produced every year through the hard work of our citizens.

Second, the tax burden on middleincome families has risen twice as fast

as their income over the last three decades.

Third, despite everything President Reagan accomplished in the area of bringing down our tax rates, tax revenues to the Government almost doubled in the 1980's. But did the deficit get smaller? No, because spending increased at a greater rate.

Furthermore, I do not know of any economic theory-Keynesian, supplyside or whatever-which argues that higher taxes will increase economic growth. A tax increase is precisely the wrong medicine for today's soft economy. It could tip us into a recession. As economist Larry Kudlow recently put it "a tax increase is Hooveresque."

While this amendment limits taxes, it does not provide for an absolute ban on running a deficit or raising taxes. It simply requires that there be an exceptional consensus among the Members of Congress that a budget deficit or a tax increase is warranted.

Mr. President, let me conclude by simply saying that too much Federal spending is the root cause of the deficit problem-not too little taxes on the American people.

Unfortunately, the Senate Joint Resolution 183 fails to address this fundamental problem. Yet despite this flaw, I plan to vote for this balanced budget amendment. It is better to have some kind of constitutional restraint on budget deficits than to have none at all.

I believe that the balanced budget amendment would be vastly improved if it included a strong tax limitation provision.

I ask unanimous consent that the accompanying documents be printed in the RECORD:

There being no objection, the documents were ordered to be printed in the RECORD, as follows: [Executive Memorandum from the Heritage Foundation, Washington, DC, November 19)

SOLVING THE DEFICIT PROBLEM: A TAX LIMITATION/BALANCED BUDGET AMENDMENT

<By Daniel J. Mitchell and John M. Ollin) The House of Representatives soon will

vote on a balanced budget amendment <H.J.R. 268, S. 183) which would require the President to submit; and the Congress to approve, a balanced budget each year. The amendment also would prohibit Congress from raising the debt ceiling unless this would be supported in each House by a three-fifths vote; currently it takes only a majority to hike the debt ceiling. To become part of the Constitution, this amendment must be approved by a two-thirds vote in each chamber of Congress and be ratified by three-fourth of the state legislatures. The problem is that there are a variety of possible balanced budget amendments. A measure simply requiring a balanced budget could be used to justify higher tax to fund greater spending. What is needed, therefore, is a balanced budget amendment containing a provision restricting the ability of Congress to raise taxes.

In the past three decades, Congress only once has produced a balanced budget. That

17716 CONGRESSIONAL RECORD-SENATE July 17, 1990 was in 1969. Since then, 21 straight years of deficit spending have added more than $2 trillion to the national debt. While many observers discount the economic impact of the national debt, asserting that it is " just money we owe ouselves," deficit spending does in fact harm the economy. The reason is that every dollar that the Treasury Department borrows to finance excessive government spending is a dollar that is not being spent more productively by the private sector. Money that is loaned to the federal government is money that is lost to private borrowers. The borrowers may be a young worker seeking a car loan, a family searching for a mortage for a first home, or a business trying to raise money to build a new factory and expand production. Whatever the purpose of the private borrower, federal deficit spending "crowds out" more valuable uses of funds.

Draining the Productive Sector: Deficits thus are bad. But they are the symptom, not the disease. Government borrows more only because it is spending more. Replacing deficit-financed government spending with spending financed by taxes simply substitutes one policy that harms the economy for another. Taxes, like borrowing, are funds transferred from the productive sector of the economy to the government. With this in mind, the single most important provision of a balanced budget amendment would be a clause restricting taxes.

A "Taxpayer Protection" clause should make it more difficult to raise taxes and should limit the total tax burden to be placed upon the American people. The simplest method of making it harder for the federal government to increase the tax burden would be the so-called super-majority requirement introduced by Representative Larry Craig, the Idaho Republican; it would require a three-fifths vote by each House. Currently, taxes can be raised by a simple majority of those voting. As important, a provision limiting total tax collections as a percentage of the GNP would keep Congress from using a balanced budget amendment as an excuse for annual tax hikes.

Buying Popularity: The current budget debate demonstrates that a balanced budget amendment without a tax limitation provision surely would generate support for higher taxes. The statutory requirement in the 1985 Gramm-Rudman-Hollings deficit reduction law that the 1991 deficit not exceed $64 billion, combined with the refusal of Congress to cut spending sufficiently, seems to be what prompts George Bush to betray his "No New Taxes" promise and join with congressional big spenders in seeking more funds from already overtaxed Americans. Higher taxes, of course, allow more spending, and more spending allows many politicians to "buy" popularity.

It is this allure of buying popularity which prompts lawmakers to say "yes" to taxes even though this may threaten economic growth and impose heavy costs on individuals and businesses across America. This temptation would not be changed by a balanced budget amendment that did not include a provision making tax increases more difficult to enact.

Were such an amendment adopted, if taxes did not equal the amount lawmakers sought to spend, they could raise taxes to finance the spending rather than limit spending. Since the political system currently rewards big spending, a tax limitation provision is needed to restore balance to the political decision-making process.

Strong Tax Limits Needed: A proper balanced budget amendment would strengthen the economy by promoting responsible fiscal policy. This would not be the case with a balanced budget amendment that might spur higher spending and higher taxes. To ensure that a balanced budget amendment encourages sounder economic decisions and is a vehicle for economic growth, the strongest possible tax limitation language should be included.

Proponents of higher taxes and spending understandably have cheered George Bush's flip-flop decision to betray his no-tax pledge. These lawmakers may cloak their tax-and-spend agenda with rhetoric about the need for greater fiscal responsibility and for closing the budget deficit gap. But 21 straight years of fiscal responsibility rhetoric has not balanced the budget. A tax limitation and balanced budget amendment would. Until such an amendment is enacted and ratified by three-fourths of the states, all tax increases should be "off the table."

Federal Government Federal Government receipts outlays

Annual Annual Total growth Total growth Percent (bil· rate (bil· rate lions) (rarcent

of GNP lions) (rarcent

c ange) c ange)

1970 .... ..... .... ......... ......... $195.6 6.5 $192.8 3.2 1971 ............... ......... ... .... 210.2 7.5 187.l - 29.0 1972 ..... ....... ... ....... ...... .. . 230.7 9.8 207.3 10.8 1973 ............................... 245.7 6.5 230.8 11.3 1974 ............................... 269.4 9.6 263.2 14.0 1975 ...... ..... ............... ..... 332.3 23.3 279.l 6.0 1976 ........... .. .................. 371.8 11.9 298.l 6.8 1977 ... ...... ... ......... ..... .. ... 409.2 10.l 355.6 19.3 1978 ........................... .... 458.7 12.l 399.6 12.4 1979 503.5 9.8 463.3 15.9 1980 ... ............................ 590.9 17.4 517.l 11.6 1981 ............................... 678.2 14.8 599.3 15.9 1982 .. ............................. 745.7 10.0 617.8 3.1 1983 ........... .............. .. .... 808.3 8.4 600.6 - 2.8 1984 ....... ......... ......... .. .. .. 851.8 5.4 666.5 10.9 1985 ....... ... ..................... 946.3 11.l 734.l 10.l 1986 .. ...... ... ................... . 990.3 4.6 769.l 4.8 1987 1,003.8 1.4 854.l 11.l 1988 .......... .... 1,064.0 6.0 909.0 6.4 1989 ...... .... ... .................. 1,142.6 7.4 990.7 9.0 1990 ......... ...... ....... ... ...... 1,205.0 5.5 1,073.0 8.3

Source: Congressional Budget Office.

CIVIL RIGHTS ACT OF 1990

DOLE AMENDMENT NO. 2219 <Ordered to lie on the table.)

19.5 17.7 18.0 18.0 18.6 18.3 17.6 18.4 18.4 18.9 19.4 20.l 19.7 18.l 18.l 18.6 18.4 19.3 19.0 19.2 19.4

Mr. DOLE submitted an amendment intended to be proposed by him to the bill S. 2104, supra, as follows:

On page 3, line 6, strike out the dash and all that follows through line 16 and insert in lieu thereof the following: "that the challenged practice has a manifest relationship to the employment in question or that the respondent's legitimate employment goals are significantly served by, even if they do not require, the challenged practice or group of practices.".

DECONCINI <AND OTHERS) AMENDMENT NO. 2220

<Ordered to lie on the table.) Mr. DECONCINI (for himself, Mr.

BUMPERS, Mr. JOHNSTON, Mr. BRYAN, and Mr. PRYOR) submitted an amendment intended to be proposed by them to the bill S. 2104, supra, as follows:

At the end of section 13, strike the period and add the following: "or require an employer to adopt quotas on the basis of race, color, religon, sex or national origin."

DECONCINI <AND OTHERS) AMENDMENT NO. 2221

<Ordered to lie on the table.) Mr. DECONCINI (for himself, Mr.

PRYOR, and Mr. BRYAN) submitted an amendment intended to be proposed by them to the bill S. 2104, supra, as follows:

At the end of section 4 insert the following subsection: " <4> Additional remedies created under section 8 of this act shall not apply in disparate impact claims authorized under this title."

DECONCINI AMENDMENT NO. 2222

<Ordered to lie on the table.) Mr. DECONCINI submitted an

amendment intended to be proposed by him to the bill S. 2104, supra, as follows:

At the appropriate place insert the following: It is the sense of the Senate that nothing in this Bill shall be construed to impose a quota system.

KENNEDY <AND JEFFORDS) AMENDMENT NO. 2223

<Ordered to lie on the table.) Mr. KENNEDY (for himself and Mr.

JEFFORDS) submitted an amendment intended to be proposed by them to the bill S. 2104, supra, as follows:

Strike out all after the first word of the amendment, and insert in lieu thereof the following: SECTION 1. SHORT TITLE.

This Act may be cited as the "Civil Rights Act of 1990". SEC. 2 FINDINGS AND PURPOSES.

<a> FrNDINGs.-Congress finds that-( 1) in a series of recent decisions address


<2> existing protections and remedies under Federal law are not adequate to deter unlawful discrimination or to compensate victims of such discrimination.

Cb> PuRPOSES.-lt is the purpose of this Act to-

< 1 > respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions; and

<2> strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence and adequate compensation for vicitims of discrimination. SEC. 3. DEFINITIONS.

Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e> is amended by adding at the end thereof the following new subsections:

" (l) The term 'complaining party' means the Commission, the Attorney General, or a person who may bring an action or proceeding under this title.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17717 "(m) The term 'demonstrates' means

meets the burdens of production and persuasion.

"(n) The term 'group of employment practices' means a combination of employment practices that produces one or more decisions with respect to employment, employment referral, or admission to a labor organization, apprenticeship or other training or retraining program.

"(o) The term 'required by business necessity' means-

"(1) in the case of employment practices involving selection <such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), bears a substantial and demonstrable relationship to effective job performance; or

"(2) in the case of employment practices not involving selection, bears a substantial and demonstrable relationship to a compelling objective of the respondent.

"(p) The term 'respondent' means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, or those Federal entities subject to the provisions of section 717 <or the heads thereof).". SEC. 4. RESTORING THE BURDEN OF PROOF IN DIS


(42 U.S.C. 2000e-2) is amended by adding at the end thereof the following new subsection:


"(1) An unlawful employment practice based on disparate impact is established under this section when-

"(A) a complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity; or

"<B) a complaining party demonstrates that a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such group of employment practices are required by business necessity, except that-

"(i) except as provided in clause <iii), if a complaining party demonstrates that a group of employment practices results in a disparate impact, such party shall not be required to demonstrate which specific practice or practices within the group results in such disparate impact;


"(iii) if the court finds that the complaining party can identify, from records or other information of the respondent reasonably available <through discovery or otherwise), which specific practice or practices contributed to the disparate impact-

"(!) the complaining party shall be required to demonstrate which specific practice or practices contributed to the disparate impact; and

"<ID the respondent shall be required to demonstrate business necessity only as to the specific practice or practices demon-

strated by the complaining party to have contributed to the disparate impact.


"(3) Notwithstanding any other provision of this title, a rule barring the employment of an individual currently and knowingly uses or possesses an illegal drug as defined in Schedules I and II of section 102(6) of the Controlled Substances Act <21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.". SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER-


(a) IN GENERAL.-Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) <as amended by section 4) is further amended by adding at the end thereof the following new subsection: ·

"(l) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demontrates that race, color, religion, sex, or national origin was a contributing factor for any employment practice, even though other factors also contributed to such practice.".

"(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 703(1), damages may be awarded only for injury that is attributable to the unlawful employment practice". SEC. 6. FACILITATING PROMPT AND ORDERLY RES


Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) <as amended by sections 4 and 5) is further amended by adding at the end thereof the following new subsection:

"(m) FINALITY OF LITIGATED OR CONSENT JUDGMENT OR 0RDERS.-

"( 1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-


"<D actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and


"(B) by a person with respect to whom the requirements of subparagraph (A) are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order consistent with the constitutional requirements of due process of law; or

"CC) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons consistent with the constitutional requirements of due process of law. A determination under subparagraph <C) shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.



"<B) apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal government; or

"(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction.

"(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph < 1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.". SEC. 7. STATUTE OF LIMITATIONS; APPLICATION TO


(a) STATUTE OF LIMITATIONS.-Section 706(e) of the civil Rights Act of 1964 <42 U.S.C. 2000e-5(e)) is amended-

< 1) by striking out "one hundred and eighty days" and inserting in lieu thereof "2 years";


<3) by striking out ", except that in" and inserting in lieu thereof ". In"; and


(b) APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS.-Section 703(h) of such Act <42 U.S.C. 2000e-2) is amended by inserting after the first sentence the following new sentence: "Where a seniority system or seniority practice is part of a collective bargaining agreement and such system or practice was included in such agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application the application of such system or practice during the period that

17718 CONGRESSIONAL RECORD-SENATE July 17, 1990 such collective bargaining agreement is m effect shall be an unlawful employment practice.". SEC. 8. PROVIDING FOR DAMAGES IN CASE OF IN

TENTIONAL DISCRIMINATION. Section 706Cg) of the Civil Rights Act of

1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "With respect to an unlawful employment practice Cother than an unlawful employment practice established in accordance with section 703(k))-


"(B) if the respondent <other than a government, government agency, or a political subdivision) engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent; in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. If compensatory or punitive damages are sought with respect to a claim arising under this title, any party may demand a trial by jury.". SEC. 9. CLARIFYING ATTORNEY'S FEES PROVISION.

Section 706Ck) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) is amended-

<l> by inserting"(!)" after "(k)"; (2) by inserting "(including expert fees

and other litigation expenses) and" after "attorney's fee,"; and

(3) by adding at the end thereof the following new paragraphs:

"<2> No consent order or judgment settling a claim under this title shall be entered, and no stipulation of dismissal of a claim under this title shall be effective, unless the parties or their counsel attest to the court that a waiver of all or substantially all attorney's fees was not compelled as a condition of the settlement.

"(3) In any action or proceeding in which any judgment or order granting relief under this title is challenged, the court, in its discretion, may allow the prevailing party in the original action <other than the Commission or the United States) to recover from the party against whom relief was granted in the original action a reasonable attorney's fee (including expert fees and other litigation expenses) and costs reasonably incurred in defending (as a party, intervenor or otherwise) such judgment or order.

"(4) At any time more than 10 days before the trial begins, a claimant in an action under this title or under section 1977 of the Revised Statutes of the United States may serve upon the adverse party a demand for judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the demand is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offerer is equal to or more favorable than the offer, the offeree must pay double the costs incurred by the offerer after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment,

but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make a demand for judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. As used in this paragraph the term 'costs' includes reasonable attorneys fees as set forth in this section and section 722 of the Revised Statutes of the United States (42 U.S.C. 1988).". SEC. 10. PROVIDING FOR INTEREST, AND EXTEND

ING THE STATUTE OF LIMITATIONS, IN ACTIONS AGAINST THE FEDERAL GOVERNMENT.

Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended-

(1) in subsection Cc), by striking out "thirty days" and inserting in lieu thereof "ninety days"; and

<2) in subsection Cd), by inserting before the period ", and the same interest to compensate for delay in payment shall be available as in cases involving non-public parties, except that prejudgment interest may not be awarded on compensatory damages.". SEC. 11. CONSTRUCTION.

Title XI of the Civil Rights Act of 1964 (42 U.S.C. 2000h et seq.) is amended by adding at the end thereof the following new section: "SEC. 1107. RULES OF CONSTRUCTION FOR CIVIL

RIGHTS LAWS.

"(a) EFFECTUATION OF PURPOSE.-All Federal laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies.


"(c) INTERPRETATION.-ln interpreting Federal civil rights laws, including laws protecting against discrimination on the basis of race, color, national origin, sex, religion, age, and disability, courts and administrative agencies shall not rely on the amendments made by the Civil Rights Act of 1990 as a basis for limiting the theories of liability, rights, and remedies available under civil rights laws not expressly amended by such Act.". SEC. 12. RESTORING PROHIBITION AGAINST ALL


Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981) is amended-

Cl) by inserting "(a)" before "All persons within"; and

(2) by adding at the end thereof the following new subsections:

"Cb) For purposes of this section, the right to 'make and enforce contracts' shall include the making, performing, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

"(c) The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of State law.".

SEC. 13. LAWFUL COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION AND CONCILIATION AGREEMENTS NOT AFFECTED.

Nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law. SEC. 14. SEVERABILITY.

If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstances is held to be invalid, the remainder of this Act and the amendments made by this Act, and the application of such provision to other persons and circumstances, shall not be affected thereby. SEC. 15. APPLICATION OF AMENDMENTS AND TRAN


amendments made by-< 1) section 4 shall apply to all proceedings


< 2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989;

< 3) section 6 shall apply to all proceedings pending on or commenced after June 12, 1989;

(4) sections 7(a)(l), 7Ca)(3) and 7Ca)(4), 7Cb), 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

(5) section 7(a)(2) shall apply to all proceedings pending on or commenced after June 12, 1989; and


(b) TRANSITION RULES.-(!) IN GENERAL.-Any orders entered by a

court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7Ca)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

(2) SECTION s.-Any orders entered between June 12, 1989 and the date of enactment of this Act, that permit a challenge to an employment practice that implements a litigated or consent judgment or order and that is inconsistent with the amendment made by section 6, shall be vacated if, not later than 6 months after the date of enactment of this Act, a request for such relief is made. For the 1-year period beginning on the date of enactment of this Act, an individual whose challenge to an employment practice that implements a litigated or consent judgment or order is denied under the amendment made by section 6, or whose order or relief obtained under such challenge is vacated under such section, shall have the same right of intervention in the case in which the challenged litigated or consent judgment or order was entered as that individual had on June 12, 1989.

(C) PERIOD OF LIMITATIONS.-The period of limitations for the filing of a claim or charge shall be tolled from the applicable effective date described in subsection (a) until the date of enactment of this Act, on a showing that the claim or charge was not filed because of a rule or decision altered by the amendments made by sections 4, 5, 7Ca)(2), or 12. SEC. 16. CONGRESSIONAL COVERAGE.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. 200e et seq.) is amended by adding at the end thereof the following new section:

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17719 "SEC. 719. CONGRESSIONAL COVERAGE.

"Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.''.

HUMPHREY AMENDMENTS NOS. 2224 THROUGH 2226

<Ordered to lie on the table.) Mr. HUMPHREY submitted three

amendments intended to be proposed by him to the bill S. 2104, supra, as follows:

AMENDMENT No. 2224 On page 5, delete all on lines 1 through 3

and insert the following in lieu thereof: "(2) A demonstration that an employment

practice is required by business necessity may be used as a defense only against

"(A) a claim under this subsection; or "(B) a claim which is based on an employ

ment practice or policy adopted to protect the health or safety of employees or their children, including unborn children.".

AMENDMENT No. 2225 On page 19, insert the following immedi

ately following line 10: "(4) Claims alleging that systems or meth

ods of compensation adopted or used by an employer are discriminatory do not constitute disparate impact cases under this subsection and may not be maintained under this subsection where the system or method of compensation is based on market forces, market wage levels, considerations of supply and demand, or other legitimate economic factors.".

AMENDMENT No. 2226 On page 5, insert the following immediate

ly following line 3: "(3) Claims alleging that systems or meth

ods of compensation adopted or used by an employer are discriminatory do not constitute disparate impact cases under this subsection and may not be maintained under this subsection.".

HATCH AMENDMENT NO. 2227 (Ordered to lie on the table.) Mr. HATCH submitted an amend

ment intended to be proposed by him to amendment No. 2187, proposed by Mr. DANFORTH, to the bill s. 2104, supra, as follows:

On page 1 of amendment 2187, after "established", insert the following: ", except with respect to an allegation of discrimination in compensation based on the theory of comparable worth".

HATCH AMENDMENT NO. 2228 <Ordered to lie on the table.) Mr. HATCH submitted an amend

ment intended to be proposed by him to amendment No. 2187, proposed by Mr. DANFORTH, to the bill s. 2104, supra, as follows:

At the end of amendment 2187, add the following:

"Nothing in this Act shall prohibit a person from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or

her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".

HATCH AMENDMENTS NOS. 2229 THROUGH 2230

<Ordered to lie on the table.) Mr. HATCH submitted two amend

ments intended to be proposed by him to amendment No. 2188, proposed by Mr. DANFORTH, to the bill s. 2104, supra, as follows:

AMENDMENT NO. 2229 On page 1 of amendment 2188, after

"such", insert the following: ", except with respect to an allegation of discrimination in compensation based on the theory of comparable worth".

AMENDMENT No. 2230 At the end of amendment 2188, add the

following: "Nothing in this Act shall prohibit a

person from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".

HATCH AMENDMENTS NOS. :?231 THROUGH 2234

<Ordered to lie on the table.) Mr. HATCH submitted four amend

ments intended to be proposed by him to amendment No. 2191, proposed by Mr. DANFORTH, to the bill s. 2104, supra, as follows:

AMENDMENT No. 2231 On page 1 of amendment 2191, strike all

after "means" and insert in lieu thereof the following: "manifest relationship to the employment in question.".


after "means" and insert in lieu thereof the following: "manifest relationship to the employment in question or demonstrable relationship to successful performance of the job.".


after "means" and insert in lieu thereof the following: "manifest relationship to the employment in question or significantly serves the legitimate employment goals of safety or efficiency.".

AMENDMENT N 0. 2234 At the end of amendment 2191, add the




<Ordered to lie on the table.)

Mr. HATCH submitted five amendments intended to be proposed by him to amendment No. 2193, proposed by Mr. METZENBAUM, to the bill s. 2104, supra, as follows:

AMENDMENT No. 2235 Strike on page 2, lines 10 through 20, of

amendment 2193, and insert in lieu thereof the following: "means manifest relationship to the employment in question.".

AMENDMENT No. 2236 Strike on page 2, lines 10 through 20, of

amendment 2193, and insert in lieu thereof the following: "means manifest relationship to the employment in question or demonstrable relationship to successful performance of the job.".

AMENDMENT NO. 2237 Strike on page 2, lines 10 through 20, of

amendment 2193, and insert in lieu thereof the following: "means manifest relationship to the employment in question or significantly serves the legitimate employment goals of safety or efficiency.".

AMENDMENT No. 2238 Strike on page 2, lines 2 and 3, of amend

ment 2193, and insert in lieu thereof the following:

"(m) The term 'demonstrates' means meets the burdens of production and persuasion, except that a complaining party retains the ultimate burden of persuading the trier of fact that the employer has violated section 703(k).".





<Ordered to lie on the table.) Mr. HATCH submitted four amend

ments intended to be proposed by him to amendment No. 2195, proposed by Mr. JEFFORDS, to the bill S. 2104, supra, as follows:

AMENDMENT No. 2240 On page 1, line 3, of amendment 2195,

insert after "require" the following: ", or permit a court to require,".


strike "." and insert in lieu thereof the following: ", nor shall any employer be required to prefer any less qualified person, not a victim of the employer's discrimination, over a better qualified person pursuant to employment standards which are manifestly related to the employment in question, on the basis of race, color, religion, sex, or national origin, under any statute amended by this act or by any court acting thereunder.".

17720 CONGRESSIONAL RECORD-SENATE July 17, 1990 AMENDMENT No. 2242

On page 1, line 3, of amendment 2195, insert after "require" the following: ", nor shall any court order any employer to engage in preferential treatment in favor of a person not a victim of an employer's discrimination against a better qualified person because of race, color, religion, sex, or national origin, under any statute amended by this Act.".




HATCH AMENDMENT NO. 2244 (Ordered to lie on the table.) Mr. HATCH submitted an amend

ment intended to be proposed by him to amendment No. 2201, proposed by Mr. PRYOR, to the bill S. 2104, supra, as follows:

At the end of amendment 2201, add the following:

"Nothing in this Act shall prohibit a person from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".


<Ordered to lie on the table.) Mr. HATCH submitted 10 amend

ments intended to be proposed by him to amendment No. 2136, proposed by Mr. METZENBAUM, to the bill s. 2104, supra, as fallows:

AMENDMENT No. 2245 Strike page 3, lines 4 through 14, of

amendment 2136, and insert in lieu thereof the following: "means manifest relationship to the employment in question.".


amendment 2136, and insert in lieu thereof the following: "means manifest relationship to the employment in question or demonstrable relationship to successful performance of the job.".


amendment 2136, and insert in lieu thereof the following: "means manifest relationship to the employment in question or significantly serves the legitimate employment goals of safety or efficiency.".


amendment 2136, and insert in lieu thereof the following:

"Cm) The term 'demonstrates' means meets the burdens of production and persuasion, except that a complaining party retains the ultimate burden of persuading the

trier of fact that the employer has violated section 703Ck>.".

AMENDMENT No. 2249 Strike page 9, line 20, of amendment 2136,

and insert in lieu thereof the following: "a court lacking subject matter jurisdic

tion; "provided that no person shall be prohibited from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".

AMENDMENT No. 2250 At the appropriate place in amendment

2136, and insert in lieu thereof the following:

"Nothing in this Act shall prohibit any person from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".


strike "transparently".


following: "Notwithstanding any other provision of

this Act, section 6 shall only apply to proceedings commenced after enactment of this Act. Section 6(b)(2) shall not become effective.".

AMENDMENT NO. 2253 At the end of amendment 2136, add the

following: "Notwithstanding any other provision of

this Act, section 6 shall apply to proceedings challenging a litigated or consent judgment commenced after enactment of this Act. Section 6Cb><2> shall not become effective.".

AMENDMENT No. 2254 Strike page 15, line 19, through page 17,

line 1, of amendment 2136, and insert in lieu thereof the following:

"(3) section 6 shall apply to all proceedings challenging a litigated or consent judgment commenced after enactment of this Act;

"( 4> sections 7<a>Cl ), 7<a><3 > and 7<a>< 4), 7, 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

"(5) section 7(a)(2) shall apply to all proceedings pending on or commenced after June 12, 1989; and

"(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989.

"(b) TRANSITION RULES.-"(1) IN GENERAL.-Any orders entered by a

court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7<a><2>. or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.".


(Ordered to lie on the table.)

Mr. HATCH submitted 10 amendments intended to be proposed by him to the bill S. 2104, supra, as follows:

AMENDMENT N 0. 2255 Strike page 3, line 10, of S. 2104, and

insert in lieu thereof the following: "means manifest relationship to the employment in question.".

AMENDMENT No. 2256 Strike page 3, line 10, of S. 2104, and

insert in lieu thereof the following: "means manifest relationship to the employment in question or demonstrable relationship to successful performance of the job.".

AMENDMENT No. 2257 Strike page 3, line 10, of S. 2104, and

insert in lieu thereof the following: "means manifest relationship to the employment in question or significantly serves the legitimate employment goals of safety or effi. ciency.".

AMENDMENT No. 2258 Strike page 3, lines 4 and 5, of S. 2104, and

insert in lieu thereof the following: "Cm) The term 'demonstrates' means

meets the burden of production and persuasion, except that a complaining party retains the ultimate burden of persuading the trier of fact that the employer has violated section 703(k). ".

AMENDMENT No. 2259 Strike page 8, line 8, of S. 2104, and insert

in lieu thereof the following: "ti on; "provided that no person shall be prohibited from challenging the implementation of a litigated or consent judgment or order on the ground that it denies him or her equal protection of the law under the United States Constitution, unless the right to make such challenge is unconstitutional.".

AMENDMENT No. 2260 At the appropriate place in S. 2104, insert

the following: "Nothing in this Act shall prohibit any


AMENDMENT No. 2261 On page 8, line 6, of S. 2104, strike "trans

parently".

AMENDMENT No. 2262 At the end of S. 2104, add the following: "Notwithstanding any other provision of

this Act, section 6 shall only apply to proceedings commenced after enactment of this Act. Section 6Cb><2> shall not become effective.".

AMENDMENT No. 2263 At the end of S. 2104, add the following: "Notwithstanding any other provision of

this Act, section 6 shall only apply to proceedings challenging a litigated or consent judgment commenced after enactment of this Act. Section 6Cb)(2) shall not become effective.".

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17721 AMENDMENT No. 2264

Strike page 13, line 23, through page 15, line 8, of S. 2104, and insert in lieu thereof the following:

"(3) section 6 shall apply to all proceedings challenging a litigated or consent judgment commenced after enactment of this Act;

"(4) sections 7<a><l>, 7(b), 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

"(5) paragraphs <2> through <4> of section 8<a> shall apply to all proceedings pending on or commenced after June 12, 1989; and

"(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989.

"(b) TRANSITION RULES.-"(1) IN GENERAL.-Any orders entered by a

court between the effective dates described in subsection <a> and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2) through (4), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.".

HELMS AMENDMENTS NOS. 2265 AND 2266

<Ordered to lie on the table.) Mr. HELMS submitted two amend

ments intended to be proposed by him to the bill S. 2104, supra, as follows:

AMENDMENT No. 2265 At the appropriate place, insert the fol

lowing new section: SEC. . UNLAWFUL EMPLOYMENT PRACTICES.

Subsection (j) of section 703 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-2(j)) is amended to read as follows:

"(j) UNLAWFUL EMPLOYMENT PRACTICE."(!) It shall be an unlawful employment

practice for any employer, employment agency, labor organization, or joint labor committee that is subject to this title to grant preferential treatment, with respect to selection, compensation, terms, condition, or privileges of employment or union membership, to any individual or to any group of individuals on account of the race, color, religion, sex, or national origin of such individual or group, for any purpose.

.AMENDMENT No. 2266 At the appropriate place, insert the fol

lowing new section: SEC. . UNLAWFUL EMPLOYMENT PRACTICES.

Subsection (j) of section 703 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-2(j)) is amended to read as follows:

"(j) UNLAWFUL EMPLOYMENT PRACTICE."(!) It shall be an unlawful employment

practice for any employer, employment agency, labor organization, or joint labor committee that is subject to this title to grant preferential treatment, with respect to selection, compensation, terms, condition, or privileges of employment or union membership, to any individual or to any group of individuals on account of the race, color, religion, sex, or national origin of such individual or group, for any purpose.

"(2) Notwithstanding any other provision of law, no order of the court or consent decree shall require, authorize, permit, or otherwise grant preferential treatment, with respect to selection, compensation, terms, conditions, or privileges of employment or union membership, to any individual on account of race, color, relgion, sex, or

national origin of such individual, for any purpose."

KENNEDY AMENDMENTS NOS. 2267 THROUGH 2275

<Ordered to lie on the table.) Mr. KENNEDY submitted nine

amendments intended to be proposed by him to an amendment to the bill S. 2104, supra, as follows:

AMENDMENT No. 2267 On page 1 of the amendment, strike out

all after the first word and insert in lieu thereof the following:

"<l> An unlawful employment practice based on disparate impact is established under this section when a complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity: Provided, however, That where a group of employment practices produces an employment decision and the impact of the practices within the group is not capable of separation for analysis through discovery, the group of employment practices shall be treated as a single employment practice and may be challenged as such and defended as such.".

AMENDMENT No. 2268 At the end of the amendment add the fol

lowing: "Nothing in this section shall preclude an

employer from hiring or promoting a more qualified person over a less qualified person so long as the qualifications considered by the employer, and the application thereof, do not violate this section.'.".



" <o><l> The term 'required by business necessity' means-

" <A> in the case of employment practices involving selection <such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), the practice or group of practices must bear a significant relationship to successful performance of the job; or

"<B) in the case of employment practices that do not involve selection, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

"(2) In deciding whether the standards in paragraph (1) for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The defendant may offer as evidence statistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence, and the court shall give such weight, if any, to such evidence as is appropriate.

"(3) This subsection is meant to codify the meaning of 'business necessity' as used in Griggs v. Duke Power Co. <401 U.S. 424 <1971)) and to overrule Ward 's Cove Packing Co., Inc. v. Atonio <109 S. Ct. 2115 <1989)).".

AMENDMENT No. 2270 Strike out the first word of the amend

ment and all that follows and insert in lieu thereof the following:

"At the appropriate place, insert the following:


"(1) Notwithstanding any other provision of law, and except as provided in paragraph <2>. an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-




" by a person with respect to whom the requirements of subparagraph <A> are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or

"(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons. A determination under subparagraph <C> shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.

"<2> Nothing in this subsection shall be construed to-

" <A> alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which they intervened;

" <B) apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal government;

"<C> prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

"(D) authorize or permit the denial to any person of the due process of law required by the United States Constitution.

"(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph <1> shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.".

Before the period at the end of the amendment insert the following: ", and to overrule Wards Cove Packing Co., Inc. v. Atonio (109 S. Ct. 2115 0989))".


all after the first word and insert in lieu thereof the following: ", or in the case of an unlawful employment practice under the Americans with Disabilities Act of 1990, other than an unlawful employment practice established in accordance with paragraph (3)(A) or paragraph <6> of section 102 of that Act, as it related to standards and criteria that tend to screen out individuals with disabilities".



"Nothing in the amendments made by this Act shall be construed to require an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law.".



Notwithstanding any other provisions of this Act Section 8 shall read as follows: SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN


1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "With respect to an unlawful employment practice <other than an unlawful employment practice established in accordance with section 703(k))-

"<A> compensatory damages may be awarded: and

" if the respondent <other than a government, government agency, or a political subdivision> engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent; in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. Compensatory and punitive damages and jury trials shall be available only for claims of intentional discrimination. If compensatory or punitive damages are sought with respect to a claim of intentional discrimination arising under this title, any party may demand a trial by jury.".

AMENDMENT No. 2275 In lieu of the matter proposed to be in

serted, insert the following: SECTION 1. SHORT TITLE.

This Act may be cited as the "Civil Rights Act of 1990". SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.-Congress finds that-( 1 > in a series of recent decisions address


(2) existing protections and remedies under Federal law are not adequate to deter unlawful discrimination or to compensate victims of such discrimination.

(b) PuRPOSES.-It is the purpose of this Act to-

< 1) respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions; and

(2) strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination. SEC. 3. DEFINITIONS.

Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is amended by adding at the end thereof the following new subsections:


"(m) The term 'demonstrates' means meets the burdens of production and persuasion.

"<n> The term 'group of employment practices' means a combination of employment practices that produces one or more decisions with respect to employment, employment referral, or admission to a labor organization, apprenticeship or other training or retraining program.

"(o)(l) The term 'required by business necessity' means-

"<A> in the case of employment practices involving selection (such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), the practice or group of practices must bear a significant relationship to successful performance of the job; or

"(B) in the case of employment practices that do not involve selection, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

"(2) In deciding whether the standards in paragraph (1) for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The defendant may offer as evidence statistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence, and the court shall give such weight, if any, to such evidence as is appropriate.

"(3) This subsection is meant to codify the meaning of 'business necessity' as used in Griggs v. Duke Power Co. <401 U.S. 424 0971)) and to overrule Ward's Cove Packing Co., Inc. v. Atonio (109 S. Ct. 2115 0989)).

"(p) The term 'respondent' means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, or those Federal entities subject to the provisions of section 717 <or the heads thereof).". SEC. 4. RESTORING THE BURDEN OF PROOF IN DIS




"( 1) An unlawful employment practice based on disparate impact is established under this section when-

"(A) a complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity; or

"(B) a complaining party demonstrates that a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such group of employment practices are required by business necessity, except that-

"(i) except as provided in clause (iii), if a complaining party demonstrates that a group of employment practices results in a disparate impact, such party shall not be required to demonstrate which specific practice or practices within the group results in such disparate impact;


"(iii) if the court finds that the complaining party can identify, from records or other information of the respondent reasonably available <through discovery or otherwise), which specific practice or practices contributed to the disparate impact-

"(!) the complaining party shall be required to demonstrate which specific practice or practices contributed to the disparate impact; and

"<ID the respondent shall be required to demonstrate business necessity only as to the specific practice or practices demonstrated by the complaining party to have contributed to the disparate impact.


"(3) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses an illegal drug as defined in Schedules I and II of section 102(6) of the Controlled Substances Act <21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of the race, color, religion, sex, or national origin.". SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER


(a) IN GENERAL.-Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (d.S amended by section 4) is further amended by adding at the end thereof the following new subsection:

"(l) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor for any employment practice, even though other factors also contributed to such practice.".

(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act <42 U.S.C. 2000e-5(g)) is

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17723 amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 703(1), damages may be awarded only for injury that is attributable to the unlawful employment practice". SEC. 6. FACILITATING PROMPT AND ORDERLY RES


Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by sections 4 and 5) is further amended by adding at the end thereof the following new subsection:

"(m) FINALITY OF LITIGATED OR CONSENT JUDGMENTS OR ORDERS.-

"(!) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-




"(B) by a person with respect to whom the requirements of subparagraph <A> are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or

"(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons. A determination under subparagraph (C) shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.



" apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal government;

"(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

39-059 0-91-35 (Pt. 12)

"{D) authorize or permit the denial to any person of the due process of law required by the United States Constitution.

"(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.". SEC. 7. STATUTE OF LIMITATIONS; APPLICATION TO


(a) STATUTE OF LIMITATIONS.-Section 706(e) of the Civil Rights Act of 1964 <42 U.S.C. 2000e-5(e)) is amended-

(1) by striking out "one hundred and eighty days" and inserting in lieu thereof "2 years";


<3> by striking out ", except that in" and inserting in lieu thereof ". In"; and


(b) APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS.-Section 703(h) of such Act (42 U.S.C. 2000e-2) is amended by inserting after the first sentence the following new sentence: "Where a seniority system or seniority practice is part of a collective bargaining agreement and such system or practice was included in such agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application of such system or practice during the period that such collective bargaining agreement is in effect shall be an unlawful employment practice.". SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN


1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "With respect to an unlawful employment practice <other than an unlawful employment practice established in accordance with section 703(k), or in the case of an unlawful employment practice under the Americans with Disabilities Act of 1990, other than an unlawful employment practice established in accordance with paragraph (3)(A) or paragraph (6) of section 102 of that Act, as it related to standards and criteria that tend to screen out individuals with disabilities)-


" if the respondent <other than a government, government agency, or a political subdivision) engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent; in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. Compensatory and punitive damages and jury trials shall be available only for claims of intentional discrimination. If compensatory or punitive damages are sought with respect to a claim of intentional discrimination arising under this title, any party may demand a trial by jury.".

SEC. 9. CLARIFYING A1TORNEY'S FEES PROVISION.

Section 706(k) of the Civil Rights Act of 1964 <42 U.S.C. 2000e-5(k)) is amended-

(!) by inserting "(1 )" after "(k)"; (2) by inserting "(including expert fees

and other litigation expenses) and" after "attorney's fee,";

(3) by striking out "as part of the"; and (4) by adding at the end thereof the fol

lowing new paragraphs: "(2) No consent order or judgment settling

a claim under this title shall be entered, and no stipulation of dismissal of a claim under this title shall be effective, unless the parties or their counsel attest to the court that a waiver of all or substantially all attorney's fees was not compelled as a condition of the settlement.

"(3) In any action or proceeding in which any judgment or order granting relief under this title is challenged, the court, in its discretion, may allow the prevailing party in the original action <other than the Commission or the United States) to recover from the party againsi. whom relief was granted in the original action a reasonable attorney's fee <including expert fees and other litigation expenses) and costs reasonably incurred in defending (as a party, intervenor or otherwise) such judgment or order.". SEC. 10. PROVIDING FOR INTEREST, AND EXTEND

ING THE STATUTE OF LIMITATIONS, IN ACTIONS AGAINST THE FEDERAL GOVERNMENT.

Section 717 of the Civil Rights Act of 1964 <42 U.S.C. 2000e-16) is amended-

(!) in subsection (c), by striking out "thirty days" and inserting in lieu thereof "ninety days"; and

(2) in subsection (d), by inserting before the period ", and the same interest to compensate for delay in payment shall be available as in cases involving non-public parties, except that prejudgment interest may not be awarded on compensatory damages.". SEC. 11. CONSTRUCTION.

Title XI of the Civil Rights Act of 1964 <42 U.S.C. 2000h et seq.) is amended by adding at the end thereof the following new section: "SEC. 1107. RULES OF CONSTRUCTION FOR CIVIL

RIGHTS LAWS.

"(a) EFFECTUATION OF PuRPOSE.-All Federal laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies.


"(c) INTERPRETATION.-In interpreting Federal civil rights laws, including laws protecting against discrimination on the basis of race, color, national origin, sex, religion, age, and disability, courts and administrative agencies shall not rely on the amendments made by the Civil Rights Act of 1990 as a basis for limiting the theories of liability, rights, and remedies available under civil rights laws not expressly amended by such Act.". SEC. 12. RESTORING PROHIBITION AGAINST ALL


Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981) is amended-

17724 CONGRESSIONAL RECORD-SENATE July 17, 1990 (1) by inserting "(a)" before "All persons

within"; and (2) by adding at the end thereof the fol

lowing new subsections: "(b) For purposes of this section, the right

to 'make and enforce contracts' shall include the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

"<c> The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of State law.". SEC. 13. LAWFUL COURT-ORDERED REMEDIES, AF

FIRMATIVE ACTION AND CONCILIATION AGREEMENTS NOT AFFECTED.

Nothing in the amendments made by this Act shall be construed to require an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law. SEC. 14. SEVERABILITY.

If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstances is held to be invalid, the remainder of this Act and the amendments made by this Act, and the application of such provision to other persons and circumstances, shall not be affected thereby. SEC. 15. APPLICATION OF AMENDMENTS AND TRAN


amendments made by-< 1) section 4 shall apply to all proceedings


(2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989;

(3) section 6 shall apply to all proceedings pending on or commenced after June 12, 1989;

<4> sections 7<a)(l), 7<a><3> and 7<a><4), 7(b), 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

(5) section 7<a><2> shall apply to all proceedings pending on or commenced after June 12, 1989; and


(b) TRANSITION RULES.-( 1) IN GENERAL.-Any orders entered by a

court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

(2) SECTION 6.-Any orders entered between June 12, 1989 and the date of enactment of this Act, that permit a challenge to an employment practice that implements a litigated or consent judgment or order and that is inconsistent with the amendment made by section 6, shall be vacated if, not later than 6 months after the date of enactment of this Act, a request for such relief is made. For the 1-year period beginning on the date of enactment of this Act, an individual whose challenge to an employment practice that implements a litigated or consent judgment or order is denied under the amendment made by section 6, or whose

order or relief obtained under such challenge is vacated under such section, shall have the same right of intervention in the case in which the challenged litigated or consent judgment or order was entered as that individual had on June 12, 1989.

(C) PERIOD OF LIMITATIONS.-The period of limitations for the filing of a claim or charge shall be tolled from the applicable effective date described in subsection (a) until the date of enactment of this Act, on a showing that the claim or charge was not filed because of a rule or decision altered by the amendments made by sections 4, 5, 7Ca)(2), or 12. SEC. 16. CONGRESSIONAL COVERAGE.

Title VII of the Civil Rights Act of 1964 <42 U.S.C. 200e et seq.) is amended by adding at the end thereof the following new section: "SEC. 719. CONGRESSIONAL COVERAGE.

"Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.".

DOLE AMENDMENTS NOS. 2276 THROUGH 2281

<Ordered to lie on the table.) Mr. DOLE submitted six amend

ments intended to be proposed by him to the bill S. 2104, supra, as follows:

AMENDMENT No. 2276 On page 16, strike out lines 24 and 25, and

insert in lieu thereof the following: "<o> The term 'required by business neces

sity' means that-"(1) the challenged employment practice

has a manifest relationship to the employment in question; or

"(2) the legitimate employment goals of the respondent employer are significantly served by, even if they do not require, the challenged practice or group of practices."



"(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice specifically required by a litigated or consent judgment or order resolving a claim of employment discrimination under this title may not be challenged in a claim under the United States Constitution or under Federal civil rights laws by a person who, at the time of the entry of such judgment or order, was an applicant for employment with, or an employee of, the entity covered by such decree whose interests would likely be affected by the consent decree, and who had-


"(B) a reasonable opportunity to challenge such judgment or order.".

AMENDMENT No. 2278 On page 24, strike out lines 3 through line

22, and insert in lieu thereof the following: SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN


1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the fol-

lowing new sentences: "In fashioning remedies for an unlawful employment practice <other than an unlawful employment practice established in accordance with section 703(k):, the court may require the respondent to pay the complaining party an amount not to exceed $100,000 if the court finds-

"(1) that back pay cannot be awarded with respect to that practice;



AMENDMENT NO. 2279 On page 24, strike out lines 3 through line

22, and insert in lieu thereof the following: SEC. 8. PROVIDING FOR DAMAGES IN CASES OF IN


1964 <42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: "In fashioning remedies for an unlawful employment practice <other than an unlawful employment practice established in accordance with section 703(k)), the court may require the respondent to pay the complaining party an amount not to exceed $60,000 if the court finds-

"< 1) that back pay cannot be awarded with respect to that practice;





"(1) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice specifically required by a litigated or consent judgment or order resolving a claim of employment discrimination under this title may not be challenged in a claim under the United States Constitution or under Federal civil rights laws by a person who, at the time of the entry of such judgment or order, was an applicant for employment with, or an employee of, the entity covered by such decree whose interests would likely be affected by the consent decree, and who had-


" a reasonable opportunity to challenge such judgment or order.".

AMENDMENT No. 2281 On page 16, strike out lines 24 and 25, and

insert in lieu thereof the following: "(o) The term 'required by business neces

sity' means that the challenged employment practice has a manifest relationship to the employment in question or has a demonstrable relationship to the successful performance of the jobs for which it was used.".

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17725 CHAFEE AMENDMENTS NOS. 2282

THROUGH 2289 <Ordered to lie on the table.) Mr. CHAFEE submitted eight


AMENDMENT No. 2282 Strike out all of section 5 and insert in

lieu thereof the following: SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER

MISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.


"( 1) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in the title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor that either:

"(a) was sufficient by itself to produce the practice, or

"(b) was a necessary element in any set of factors that together are sufficient to produce the practice, even though other factors also contributed to such practice.".

"(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: 'or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination.'."

AMENDMENT No. 2283 Strike out all of section 5 and insert in

lieu thereof the following: SEC. 5. CLARIFYING PROHIBITION AGAINST IMPER

MISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.


"(1) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in the title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor that either:


"(b) was a necessary element in any set of factors that together are sufficient to produce the practice, even though other factors also contributed to such practice.''.

(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under setion 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 703<1), damages may be awarded only for injury that is attributable to the unlawful employment practice.".

AMENDMENT No. 2284 At the appropriate place in the pending

substitute amendment, insert the following:

"It is the sense of the Senate that it is the intent of the Senate, in considering the Civil Rights Act of 1990, to codify the intent of the unanimous Supreme Court ruling in Griggs v. Duke Power Co., 401 U.S. 425 (197U.".


substitute amendment, insert the following: "It is the sense of the Senate that the

Civil Rights Act of 1990 should codify the intent of the unanimous Supreme Court ruling in Griggs v. Duke Power Co., 401 U.S. 425 (1971).".

AMENDMENT No. 2286 At the end of the pending amendment,

insert the following: "Notwithstanding section 5, section 703 of

the Civil Rights Act of 1964 is further amended by adding at the end thereof the following new subsection:

"( 1) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in the title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor that either:


"(b) was a necessary element in any set of factors that together are sufficient to produce the practice, even though other factors also contributed to such practice.''.

(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such Act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 703<1), damages may be awarded only for injury that is attributable to the unlawful employment practice.''.

AMENDMENT No. 2287 At the end of the pending amendment,

insert the following: "Notwithstanding section 5, section 703 of

the Civil Rights Act of 1964 is further amended by adding at the end thereof the following new subsection:

"(!)DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.-Except as otherwise provided in the title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor that either:


"(b) was a necessary element in any set of factors that together are sufficient to produce the practice, even though other factors also contributed to such practice.".

(b) ENFORCEMENT PROVISIONS.-Section 706(g) of such act <42 U.S.C. 2000e-5(g)) is amended by inserting before the period in the last sentence the following: "or, in a case where a violation is established under section 703(1), if the respondent establishes that it would have taken the same action in the absence of any discrimination.''.


amendment, insert the following: "It is the sense of the Senate that it is the

intent of the Senate, in considering the Civil

Rights Act of 1990, to codify the intent of the unanimous Supreme Court ruling in Griggs v. Duke Power Co., 401 U.S. 425 <1971)."


amendmen!. insert the following: "It is the sense of the Senate that the

Civil Rights Act of 1990 should codify the intent of the unanimous Supreme Court ruling in Griggs v. Duke Power Co., 401 U.S. 425 <1971)."

DANFORTH AMENDMENTS NOS. 2290 THROUGH 2293

<Ordered to lie on the table.> Mr. DANFORTH submitted four


AMENDMENT NO. 2290 Strike all after the first word in the 1st

degree amendment and insert in lieu thereof the following: "however, that if the elements of a decisionmaking process are shown to be not capable of separation for analysis, they may be analyzed as one employment practice.".

AMENDMENT No. 2291 Strike all after the first word in the 1st

degree amendment and insert in lieu thereof the following:

Section 706(g) of the Civil Rights Act of 1964 <42 U.S.C. 2000e-5(g)) is amended by deleting the period at the end of the first sentence and inserting the following: ", including statutory damages for intentional harassment not to exceed an amount equal to double the average award in the previous year under section 1977 of the Revised Statutes of the United States <42 U.S.C. 1981) for intentional discrimination in the course of employment. The court has discretion to award statutory damages if it finds that an equitable remedy beyond those examples previously discussed is needed to make the complaining party whole or to deter the respondent from continuing to engage in such unlawful employment practices. For purposes of determining the limit on the statutory damages referred to in this subsection, the Justice Department is authorized to conduct the necessary research itself or to contract out to a separate entity the task of determining the average amount awarded to victims of intentional discrimination in the course of employment in the previous year under section 1977 of the Revised Statutes of the United States <42 U.S.C. 1981).''

AMENDMENT No. 2292 If the appropriate place add the following:

"Notwithstanding any other provision of law, the term 'required by business necessity' means-

"( 1) in the case of employment practices primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to successful performance of the job; or

"(2) in the case of other employment practices that are not primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.''.

Strike all from the first word in the firstdegree amendment and insert in lieu thereof the following: "term 'required by business necessity' means-

"( 1) in the case of employment practices primarily intended to measure job performance, the practice or group of practices must bear a significant relationship to successful performance of the job,

"(2) in the case of other employment practice that are not primarily intended to measure job performance, the practices or group of practices must bear significant relationship to a significant business objective of the employer,

"(3) In deciding whether the above standards for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The court may rely on as such evidence statistical reports, validation studies, expert testimony, prior successful experience and other evidence as permitted by the Federal Rules of Evidence and the court shall give such weight, if any, to such evidence as it deems appropriate."

This amendment shall become effective the date after enactment.

PRYOR AMENDMENT NO. 2294 <Ordered to lie on the table.) Mr. PRYOR submitted an amend

ment intended to be proposed by him to the bill S. 2104, supra, as follows:

Section 4 is amended by adding the following new subsections:

"(4) The mere existence of a statistical imbalance in an employer's workforce on account of race, sex, religion, or national origin is not alone sufficient to establish a prima facie case of disparate impact violation."

JEFFORDS AMENDMENT NO. 2295 <Ordered to lie on the table.) Mr. JEFFORDS submitted an

amendment intended to be proposed by him to an amendment to the bill S. 2104, supra, as followings

On page 1 of the amendment, strike out all after the first word and insert in lieu thereof the following:

"Punitive damages under this section may not exceed $500,000.".

SIMPSON AMENDMENT NO. 2296 <Ordered to lie on the table.) Mr. SIMPSON submitted an amend

ment intended to be proposed by him to amendment No. 2110 (in the nature of a substitute) proposed by Mr. Kennedy <and others) to the bill S. 2104, supra, as follows:

Strike out section 8 of the Kennedy-Jeffords substitute amendment and insert in lieu thereof the following: SEC. 8. RESTITUTIONARY AND OTHER EQUITABLE

RELIEF IN HARASSMENT CASES. Section 706 of the Civil Rights Act of 1964


"(k) EQUITABLE RELIEF IN HARASSMENT CASES.-( 1) Harassment based on an individual's race, color, religion, sex, or national origin is contrary to the public policy established by this title. For the purposes of this section, the term 'harassment' based on

race, color, religion, sex, or national origin means the totality of willful conduct that is sufficiently severe and pervasive so as to alter the conditions of employment in a way that creates a working environment that would be intimidating, hostile, or offensive to a reasonable person.

"(2) Notwithstanding any other provision of this section, if a person who is aggrieved by harassment prohibited by this section has filed a timely charge of discrimination under this title, and the Commission has not sought injunctive relief within 60 days of the filing of the charge, then such person may commence a civil action in an appropriate district court of the United States seeking temporary or preliminary injunctive relief without regard to any waiting period that would otherwise prevent the commencement of a civil action under this title and without obtaining a right-to-sue letter from the Commission.

"(3) Any order granting temporary or preliminary relief under paragraph (2) shall be issued in accordance with Rule 65 of the Federal Rules of Civil Procedures, provided that if the individual establishes a substantial probability of success on the merits of the harassment claim, the continuation or likely continuation of such harassment shall be deemed injury sufficiently irreparable to warrant the entry of temporary or preliminary relief. The court shall assign such action for hearing at the earliest practicable date and shall cause such action to be expedited. The determination of the court in issuing such injunctive relief shall not be controlled in any proceeding on the merits of the harassment or other discrimination claim.

"(4) In any civil action on the merits of a harassment claim brought pursuant to this section, if the court finds that the respondent has willfully engaged in, or is willfully engaging in, unlawful harassment against the aggrieved individual, then the court may award, in addition to any other relief available under this section, restitutionary equitable relief to the aggrieved individual as follows:

"(A) for a first violation against the aggrieved individual, up to $15,000,

"(B) for a violation where there has been a judicial finding of a previous violation against the aggrieved individual, up to $30,0·00. For the purposes of this section, the term "willfully engaging in" means that the employer either knew, or showed reckless disregard for whether, its conduct was prohibited by this Act.

"(5) In determining whether the alleged conduct constitutes harassment as defined in this section, the court shall look at the record as a whole and at the totality of the circumstances, such as the nature of the conduct and the context in which the alleged incidents occurred.

"(6) The respondent shall not be liable for restitutionary equitable relief nor shall other equitable relief be ordered if the respondent demonstrates:

"(A) that it took immediate and appropriate corrective action,

"(B) that it had promulgated a policy prohibiting such harassment and did not know, or could not reasonably have known, of such harassment, or

"(C) that the individual claiming harassment knew or should have known of, but did not participate in, any program established by the respondent to investigate and remedy such harassment.

"(7) Where the respondent undertakes a bona fide investigation of alleged harassment, any communications or findings made in connection with such investigation that are not actuated by malice shall be entitled to a qualified privilege with respect to defamation, slander, libel, or other similar claims brought by any person in any action under federal or state law.".

SIMPSON AMENDMENT NO. 2297 <Ordered to lie on the table.) Mr. SIMPSON submitted an amend

ment intended to be proposed by him to the bill S. 2104, supra, as follows:

Strike out section 8 of the bill and insert in lieu thereof the following: SEC. 8. RESTITUTIONARY AND OTHER EQUITABLE

RELIEF IN HARASSMENT CASES. Section 706 of the Civil Rights Act of 1964


"(k) EQUITABLE RELIEF IN HARASSMENT CASES.-( 1) Harassment based on an individual's race, color, religion, sex, or national origin is contrary to the public policy established by this title. For the purposes of this section, the term "harassment" based on race, color, religion, sex, or national origin means the totality of willful conduct that is sufficiently severe and pervasive so as to alter the conditions of employment in a way that creates a working environment that would be intimidating, hostile, or offensive to a reasonable person.

"<2) Notwithstanding any other provision of this section, if a person who is aggrieved by harassment prohibited by this section has filed a timely charge of discrimination under this title, and the Commission has not sought injunctive relief within 60 days of the filing of the charge, then such person may commence a civil action in an appropriate district court of the United States seeking temporary or preliminary injunctive relief without regard to any waiting period that would otherwise prevent the commencement of a civil action under this title and without obtaining a right-to-sue letter from the Commission.

"(3) Any order granting temporary or preliminary relief under paragraph (2) shall be issued in accordance with Rule 65 of the Federal Rules of Civil Procedure, provided that if the individual establishes a substantial probability of success on the merits of the harassment claim, the continuation or likely continuation of such harassment shall be deemed injury sufficiently irreparable to warrant the entry of temporary or preliminary relief. The court shall assign such action for hearing at the earliest practicable date and shall cause such action to be expedited. The determination of the court in issuing such injunctive relief shall not be controlling in any proceding on the merits of the harassment or other discrimination claim.

"(4) In any civil action on the merits of a harassment claim brought pursuant to this section, if the court finds that the respondent has willfully engaged in, or is willfully engaging in, unlawful harassment against the aggrieved individual, then the court may award, in addition to any other relief available under this section, restitutionary equitable relief to the aggrieved individual as follows:

"(A) for a first violation against the aggrieved individual, up to $15,000,

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17727 "(B) for a violation where there has been

a judicial finding of a previous violation against the aggrieved individual, up to $30,000. For the purposes of this section, the term "willfully engaging in" means that the employer either knew, or showed reckless disregard for whether, its conduct was prohibited by this Act.

"(5) In determining whether the alleged conduct constitutes harassment as defined in this section, the court shall look at the record as a whole and at the totality of the circumstances, such as the nature of the conduct and the context in which the alleged incidents occurred.

"(6) The respondent shall not be liable for restitutionary equitable relief nor shall other equitable relief be ordered if the respondent demonstrates:

"(A) that it took immediate and appropriate corrective action,

"(B) that it had promulgated a policy prohibiting such harassment and did not know, or could not reasonably have known, of such harassment, or

"(C) that the individual claiming harassment knew or should have known of, but did not participate in, any program established by the respondent to investigate and remedy such harassment.

"(7) Where the respondent undertakes a bona fide investigation of alleged harassment, any communications or findings made in connection with such investigation that are not actuated by malice shall be entitled to a qualified privilege with respect to defamation, slander, libel, or other similar claims brought by any person in any action under federal or state law.".

NOTICES OF HEARINGS

SUBCOMMITTEE ON WATER AND POWER

Mr. BRADLEY. Mr. President, I would like to announce for the public that a bill has been added to the hearing before the Subcommittee on Water and Power of the Senate Committee on Energy and Natural Resources scheduled to take place Tuesday, July 24, 1990, at 2 p.m., in room SD-366 of the Dirksen Senate Office Building, Washington, DC. In addition to the three bills previously announced-H.R. 3694, S. 1118, and S. 1932-the subcommittee will also receive testimony on S. 1590, a bill to transfer certain rights-of-way to the Elephant Butte Irrigation District of New Mexico, and for other purposes.

For further information, please contact Tom Jensen, counsel for the subcommittee at <202) 224-2366.

COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY

Mr. LEAHY. Mr. President, I would like to announce that the Committee on Agriculture, Nutrition, and Forestry will hold a hearing on the nomination of Wendy Lee Gramm to be a Commissioner of the Commodity Futures Trading Commission, July 24, 1990, at 2:30 p.m. in SR-332. For further information, please contact Ken Ackerman of the committee staff at 224-2035.

AUTHORITY FOR COMMITTEES TO MEET

SPECIAL COMMITTEE ON AGING

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Special Committee on Aging be authorized to meet during the session of the Senate on Tuesday, July 17, 1990, at 9:30 a.m. to hold an oversight hearing to consider the disability determination process for Social Security disability insurance and Social Security income.

The PRESIDING OFFICER. Without objection, it is so ordered. COMMITTEE ON BANKING, HOUSING, AND URBAN

AFFAIRS

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be allowed to meet during the session of the Senate, Tuesday, July 17, 1990, at 10 a.m. to conduct a markup of a committee print to amend the Export Administration Act; a committee print which includes titles relating to money laundering, truth-in-savings, and expedited funds availability; and a committee print on fair lending enforcement.


SUBCOMMITTEE ON WATER RESOURCES, TRANSPORTATION, AND INFRASTRUCTURE

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Subcommittee on Water Resources, Transportation, and Infrastructure, Committee on Environment and Public Works, be authorized to meet during the session of the Senate on Tuesday, July 17, 1990, beginning at 10 a.m., to conduct a hearing on S. 2046, the National Infrastructure Council Act of 1990.


SELECT COMMITTEE ON INTELLIGENCE

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Tuesday, July 17, 1990, at 2 p.m., to hold a closed hearing on intelligence matters.


COMMITTEE ON THE JUDICIARY

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on July 17, 1990, at 10 a.m., to hold a hearing on new drug reports: Do they point to victory in the "War on Drugs"?


SUBCOMMITTEE ON ANTITRUST, MONOPOLIES, AND BUSINESS RIGHTS

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Subcommittee on Antitrust, Monopolies, and Business Rights, of the Commit-

tee on the Judiciary, be authorized to meet during the session of the Senate on July 17, 1990, at 2:30 p.m., to hold a markup on the S&L investigation.


SUBCOMMITTEE ON ANTITRUST, MONOPOLIES, AND BUSINESS RIGHTS

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Subcommittee on Antitrust, Monopolies, and Business Rights, of the Committee on the Judiciary, be authorized to meet during the session of the Senate on July 17, 1990, at 10 a.m., to hold a hearing on the production of joint ventures.


COMMITTEE ON FOREIGN RELATIONS

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, July 17, 1990, at 10 a.m. to hold a hearing on the threshold test ban and peaceful nuclear explosions treaties with the U .S.S.R. together with verification protocols for each treaty; Ex. N, 94-2 and Treaty Doc. 101-19.


COMMITTEE ON SURFACE TRANSPORTATION

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Subcommittee on Surface Transportation, of the Committee on Commerce, Science, and Transportation, be authorized to meet during the session of the Senate on July 17, 1990, at 9 a.m. on Supreme Court negotiated rates decision.


COMMITTEE ON FOREIGN RELATIONS

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on July 17, 1990, at 4 p.m. to hold a nomination hearing on Aurelia Brazeal to be Ambassador to Micronesia.


ADDITIONAL STATEMENTS

MAKING A DIFFERENCE e Mr. ARMSTRONG. Mr. President, it is my privilege to present to you a speech recently delivered at the commencement of Grace Brethren Christian School by a rather unusual and insightful young woman.

It demonstrates a very thoughtful approach to young men and women as they are entering an increasingly complex and divergent society.

I commend it to my colleagues. The address follows:

17728 CONGRESSIONAL RECORD-SENATE July 17, 1990 MAKING A DIFFEREl'WE

<Valedictory Speech, 1990, by Shari Mathieu>

Giving honor to Pastor Dixon, Mrs. Dixon, Mrs. Harris, Dr. Richard Halverson, distinguished guests, teachers, parents, and friends, and to the 1990 graduating class of Grace Brethren Christian School, I greet you in the name of our Lord and Savior Jesus Christ. I would especially like to thank Mrs. Dixon for the special part she played in my attendance and my brother's attendance at Grace.

Today we prepare to leave the security of Grace Brethren and go on to higher education, careers, and, before too long, begin families. Most of us will be chasing that elusive goal called success. Ralph Waldo Emerson wrote: How do you measure success? To laugh often and much; To win the respect of intelligent people And the affection of children; To earn the appreciation of honest critics And endure the betrayal of false friends; To appreciate beauty; To find the best in others; To leave the world a bit better Whether by a healthy child, a redeemed

social condition, or a job well done; To know even one other life has breathed

because you lived-This is to have succeeded.

Ponder with me three sections of our lives. In the past, we have been given an aptitude for success. In the present, we must develop an attitude for success. And in the future, we will need some altitude for success. Aptitude in the past, attitude in the present, altitude in the future.

It is interesting that Emerson makes no mention of money, status, rank, fame, power over others, possessions, size, numbers, statistics, or other visible non-essentials in light of eternity. I would like to suggest to you that success may be defined as making a difference in someone else's life.

We have been given the aptitude to make a difference. At Grace, we have received an excellent education, counsel from committed Christian teachers, skills in addressing life's problems, and values that equip us for life. We will not soon forget those who gave us the aptitude to make a difference. We will remember Mr. Hornickel's devotionals, jokes, and his ability to take a joke. We will remember Mrs. Kelly's encouraging words, dramatic scenes, sensitive prayers, and understanding way. We will remember Mrs. Schaaf's homework, intelligence, wisdom, and her ability to link current events and Christian principles to a difficult subject like math. We will remember Mr. First's friendship, inspiration, stories from his personal experiences, and, of course, Cindy. Male and female students have told me that they will remember Mr. Stubbs as encouraging, caring, kind, precious, loving, dear, sweet, and considerate.

During this past year, we had the privilege of making a lot of new friends from Camp Springs Christian School. I'm sure that those students would like to express their appreciation for every additional teacher that made an impact on their lives.

Having received the aptitude, we must now develop our attitude to make a difference. I'm sure we will always remember Mrs. Bergman's hard vocabulary words that prepared us to take the Scholastic Aptitude Test. Does anyone remember the words apotheosis <e-p6the-o'sis>. calumniate <kelttm'ne-at), or diaphanous <di-a.f' e-nes>? Well, neither did I.

As we think about the attitudes we need to develop in the present, there are certain words that we need to remember and continue to keep in our vocabulary. For example, GRATITUDE. We need to be grateful to all those who have had a part in our lives-family, friends, teachers, administrators, custodians, school bus drivers, etc. Gratitude needs to be part of our attitude.

Another vocabulary word needs to be SERVICE. Use everything that the Lord has provided for you-education, career, material blessings-to serve your fellow man.

The third word is INTEGRITY. Be honest in all that you do, doing your best and keeping your word.

We also need to remember the word RECONCILIATION. We need to be reconciled first to God, and then to each other. In our society, there is too great of a distance between rich and poor, black and white, Hispanic and Asian, Jew and Gentile. Jesus came to break down the middle wall of partition. As we remember the word "reconciliation," we can continue to break down walls that separate us.

The fifth word is SELF-CONTROL. Why self-control? Self-control keeps us obeying God's laws and man's laws whether or not there are restraints. In our society, there aren't many people telling us what's right and what's wrong. The decline of morality in society can be traced back to a lack of self-control. Our society seems to have a preoccupation with three questions: how far can I go; how much can I get away with; and how much can I accumulate. The answer to these questions is a good dose of self-control

The last vocabulary word that I will mention today is FAMILY. First Lady Barbara Bush spoke of her concern about family at another commencement last week. She said, and I quote: "to cherish your human connections, your relationships with family and friends. For several years, you've had impressed upon you the importance to your career of dedication and hard work, and of course that's true. But as important as your obligations as a doctor, a lawyer, a business leader will be, you are a human being first and those human connections with spouses, with children, with friends, are the most important investment you will make. At the end of your life, you will never regret not having passed one more test, winning one more verdict, or not closing one more deal. You will regret time not spent with a husband, [a wife], a child, a friend, or a parent."

Having been given the aptitude in the past and developing the attitudes that we need in the present, we need to put some altitude in our future. Altitude represents how high we rise to make a difference. Some may say that we have finished our course so that we can sit down and take it easy. Jesus would say, "stand up and make a difference." Others may say that we are through school, so we can just lay back and breeze through the rest of life. The Scripture says, "to whom much is given, much is required." This is not the end. This is a commencement. We have only just begun.

Micah 6:8 says, "And what does the Lord require of you? To act justly, and to love mercy, and to walk humbly with your God." We cannot afford to sit down. We cannot afford to take it easy. We cannot afford to lay back. We must make a difference. The world needs Christians who will put some altitude-stand up-for what they believe.

What would have happened if Christians would have stood against Hitler's regime? What would have happened if Christians

would have stood against slavery in our country? What can happen if we, the graduating class of 1990, put altitude to our attitude and address the evils of our society? God has called us to make a difference.

Tom Skinner, the author of "Black and Free," was born into a very poor family. His parents were advised, because of their poverty, not to have children. After his mother became pregnant, she was advised not to have the child. But Tom Skinner had loving, caring parents. By the age of six, Tom Skinner was reading on a fifth grade level. By junior high, he had read all of Shakespeare and was acting in Shakespearean plays. When he took his Scholastic Aptitude Test, he scored a perfect 800 on the verbal, and a 700 on the math. Today, Tom Skinner makes a difference. One young man, born into poverty but rich in Christ, now ministers to giant corporations like IBM and travels across the country and around the world to speak to audiences. By the way, he was also a very effective chaplain to the Washington Redskins.

Daniel made a difference because he purposed in his heart to not defile himself. Noah, though he had never seen rain, made a difference. The three Hebrew teenagers refused to bow down to peer pressure and ungodly influences, and made a difference.

Fellow graduates, thank God for the aptitude that has been given us by such a great school as Grace Brethren. We can make a difference. We must. now take that aptitude and develop attitudes such as gratitude, service, integrity, r-econciliation, self-control, and family. We must make a difference. We must refuse to sit down. We must refuse to take it easy. We must refuse to lay back. Taking the aptitude and developing the attitudes, we must then put some altitude to what we believe in and stand up, and we will make a difference.

Thank you, God bless you, and God bless Grace Brethren Christian School.•

CHILDREN HELPING TO PROTECT THE ENVIRONMENT

•Mr. D'AMATO. Mr. President, I rise today to commend the efforts of 10 fifth graders from Ontario, NY, who have successfully demonstrated their concern for the environment.

Children and young adults are often criticized for their lack of commitment to ideals and principals. However, last April, students at Freewill Elementary School embarked on a successful campaign to protect the environment from harmful chlorofluorocarbons [CFC's] which are destroying the Earth's ozone layer. These students, led by Nikki Donvito, Casey Carpenter, and Brian Kerkhoven, collected approximately 700 signatures from area registered voters on a petition promoting a ban of new uses of CFC's and fines against companies which do not comply with the ban.

By promoting an idea that they believed to be important, these students went as far as delivering their petition to the New York State Assembly Committee on Environmental Conservation and pursuading the town boards of Walworth and Ontario to pass resolutions to back the ban. These budding

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17729 environmentalists, our next generation of leaders, have demonstrated a concern for the environment and an understanding of the importance of community service and activism. These are valuable lessons which will remain with them for the rest of their lives.

I am proud of the accomplishments of these students and am delighted to share their success with my colleagues.

Mr. President, I ask that the article that appeared in the Democrat and Chronicle entitled "Wayne Pupils Take Their Worries on Ozone Destroyers to Assembly" be printed in the RECORD immediately following my remarks.

The article follows: WAYNE PuPILS TAKE THEIR WORRIES ON

OZONE DESTROYERS TO ASSEMBLY ONTARIO.-Ten Ontario fifth-graders are

doing something bold about "a problem the Earth has." They're taking their worries about chlorofluorocarbons straight to the state Assembly.

Betty Schaeffer, a teacher of a fifth-grade class for the gifted and talented at Freewill Elementary School in the Wayne Central School District, says the students in her class take their studies to "a higher level."

The students will do just that on Tuesday, when they take their class project to the Legislature in Albany.

The 10 budding environmentalists collected about 700 signatures from registered voters on a petition promoting a ban of new uses of chlorofluorocarbons and fines against companies that do not comply with the ban. The money collected through fines would be used to help finance research on alternatives to the chemicals.

The fifth-graders will deliver their petition to the Assembly Committee on Environmental Conservation.

Chlorofluorocarbons, most widely used in refrigeration, foam packaging products and the electronics industry, break down into chlorine in the atmosphere. The chlorine has been destroying ozone in the stratosphere, allowing more ultraviolet rays to reach the earth's surface, where they increase the skin cancer rate and are harmful to plants.

The drafters of the petition, 11-year-old Nikki Donvito and Casey Carpenter, 10¥2 , will address the Assembly members Tuesday, Schaeffer said.

The Walworth Town Board passed a resolution to back the ban, and the Ontario Town Board approved a resolution supporting the effort of the students.

The lesson on chlorofluorocarbons was just one section Schaeffer taught on ecological issues, she said. However, what started out as a one-month classroom assignment grew into an area-wide, four-month campaign initiated by the two fifth-graders, Schaeffer said.

"In December, we had to pick a problem the Earth had and do something about it," Casey said. Nikki said they concentrated on the deterioration of the ozone because it posses both an environmental and health threat.

"We collected 115 signatures and sent it to Gov. <Mario) Cuomo," Nikki said. Assemblyman Frank G. Talomie Sr., R-Geneva, visited the school in February and invited the girls to speak to the Assembly's Environmental Conservation Committee, she said.

Casey and Nikki enlisted the help of eight classmates and launched a petition campaign in Ontario and Walworth. The students collected signatures by going door to door and posted petitions in businesses, garnering about 700 signatures so far.e

BUDGET SCOREKEEPING REPORT

e Mr. SASSER. Mr. President, I hereby submit to the Senate the latest budget scorekeeping report for fiscal year 1990, prepared by the Congressional Budget Office in response to section 308(b) of the Congressional Budget Act of 1974, as amended. This report was prepared consistent with standard scorekeeping conventions. This report also serves as the scorekeeping report for the purposes of section 311 of the Budget Act.

This report shows that current level spending is under the budget resolution by $3.3 billion in budget authority, and over the budget resolution by $4.2 billion in outlays. Current level is under the revenue floor by $5.2 billion.

The current estimate of the deficit for purposes of calculating the maximum deficit amount under section 3ll(a) of the Budget Act is $114.8 billion, $14.8 billion above the maximum deficit amount for 1990 of $100 billion.

CONGRESSIONAL BUDGET OFFICE, U.S. CONGRESS,

Washington, DC, July 16, 1990. Hon. JIM SASSER, Chairman, Committee on the Budget, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The attached report shows the effects of Congressional action on the budget for fiscal year 1990 and is current through July 13, 1990. The estimates of budget authority, outlays, and revenues are consistent with the technical and economic assumptions of the 1990 Concurrent Resolution on the Budget <H. Con. Res. 106). This report is submitted under Section 308 and in aid of Section 311 of the Congressional Budget Act, as amended, and meets the requirements for Senate scorekeeping of Section 5 of S. Con. Res. 32, the 1986 First Concurrent Resolution on the Budget.

Since my last report, dated July 10, 1990, the President has signed into law the Amtrack Reauthorization and Improvement Act <P.L. 101-322). This action has no effect upon the current level of spending or revenues.

Sincerely, ROBERT F. HALE

<For Robert D. Reischauer>.

THE CURRENT LEVEL REPORT, FOR THE U.S. SENATE, lOlST CONG., 20 SESS., AS OF JULY 13, 1990

[In billions of dollars]

~~ri~~. 3. ~t~~r '.~ ::::::::::::::::: : : : ::: ....... . Revenues .......................................... . Debt subject to limit .................... . Direct loan obligations ..................... . Guaranteed loan commitments ......... . Deficit ..................................... .

Current level '

1,326.l 1,169.4 1,060.3 3,085.l

19.l 115.l 114.8

1,329.4 1,165.2 1,065.5 3,122.7

19.3 107.3

2 100.0

Current level + /

resolution

- 3.3 4.2

- 5.2 - 37.6

- .2 7.8

3 14.8

1 The current level represents the estimated revenue and direct spending effects (budget authority and outlays) of all legislation that Congress has

enacted in this or P.revious sessions or sent to the President for his approval and is consistent with the technical and economic assumptions of H. Con. Res. 106. In addition, estimates are included of the direct spending effects for all entitlement or other mandatory programs requiring annual appropriations under current law even though the appropriations have not been made. The current level of debt subject to limit reflects the latest U.S. Treasury information on public debt transactions. In accordance with Sec. 102(a) of the Balanced Budget and Emergency Deficit Control Reaffirmation Act (101 Stat. 762) the current level deficit amount compared to the maximum deficit amount does not include asset sales.

2 Maximum deficit amount [MDAJ in accordance with section 3(7) (E) of the Congressional Budget Act, as amended.

3 Current level plus or minus MDA.

THE CURRENT LEVEL REPORT 101ST CONG., 20 SESS., SENATE SUPPORTING DETAIL, FISCAL YEAR 1990 AS OF CLOSE OF BUSINESS JULY 13, 1990

[In millions of dollars]

Budget 0 authority utlays Revenues

I. Enacted in previous session: Revenues ....................................................... ............................ 1,068,600 Permanent appropriations and

trust funds .................................. 954,969 791,109 Other legislation.......... ......... ............ 635,362 638,737 566 Offsetting receipts ........... ................ - 233,985 - 233,985

Total enacted in previous ses-sions ............................... ........ 1,356,347 1,195,862 1,069,166

II. Enacted this session: Dire em.ergency supplemental ap-

propriations (P.l. 101-302) ...... 2,293 666 An act making technical amend·

ments to title 5, U.S. Code (P.l. 101- 303) ........ ................ - 1

Amtrak Reauthorization and Im· provement Act (P.L. 101-322) ................. -10 .... - 10

Total enacted this session........... 2,283 665 -10 Ill. Continuing resolution authority ......................................................................... . IV. Conference agreements ratified by

both Houses . .. ... .......... .. ........ ....... ........... ...... ..... ........ ...... .... . .......................... . V. Entitlement authority and other man

datory adjustments required to conform with current law estimates in budget resolution:

Salaries of judges .............. .. ........... . Payment to judicial officers' re-

- 8

tirement fund ... ........................... - 4 - 4 Judicial survivors' annuities fund..... - 3 -3 Fees and expenses of witnesses...... - 5 ....................................... . Justice assistance ............................ - 4 Fisherman's guaranty fund .............. 1 ................ 1 .... :::::::::::::::::: Administration of territories............. - 1 . Firefighting adjustments .................. - 1,057 ····· ··:::.·192······················ Federal unemployment benefits

(FUBA) ...................................... . Advances to unemployment trust

fund ........ ......... .......................... .

~~at~~e~ii~hiff~· ·irusi .. iiiiid:::::: Vaccine improvement program

trust fund ...... .... .. ....................... .

(48) (48) ·················· - ~~ ··············ff··········· .. ··"····

Federal payments to railroad re. lirement ........... .......................... .

Retirement pay and medical bene-fits ............................................. . - 4 ....................................... .

Supplemental security income pro-gram .. .. ...................................... .

Special benefits, disabled coal 263 263 ................. .

miners .......... .. .............. .. ..... ........ 21 ....................................... . Grants to states for Medicaid.......... - 907 ....................................... . Payments to health care trust

funds ....... ................................... . Family support payments to

States ... ............... ....................... .

(325) (325) ................. .

84 84 Payments to states for AFDC

work programs ... ........................ . Payments to states for foster

15 15

care ................................... ......... . -83 Health professions student loan

insurance fund ............................ - 25 -7 ................. . Guaranteed student loans ................ -175 ...................................... ..

Col~~f~~o1~i~~-. 3.~---~-~-.'.~: .. - 3 - 3 ................. . Rehabilitation services .................... .

~:r:~r~~e~i~h:n~u~ir~ieC:·· -79

(*) .............. (.•)"·::::::::::::::::::

trification fund ........................... . 111 111 ......... ........ . Dairy indemnity program ................ . Conservation reserve program ........ . Special milk program ............... ....... . Food stamp program ...................... . Child nutrition programs ................. . Federal crop insurance corporation

fund ........................................... . Agriculture credit insurance fund ... .

1~~i ...... ...... Y~ ... :::::::::::::::::: - 2 ············ ····························

-2,000 ....................................... . -74 ················ ·· ······················

(*) ................. ...................... . 342 ....................................... .

Rural housing insurance fund ......... . Rural communication development

fund ............................... ............ . Payments to the farm credit

(*) ............ ..... .... .

(*) ................. ...... ....... .. ....... .

system financial assistance corporation ................................. . - 2 ..................................... .. .

17730 CONGRESSIONAL RECORD-SENATE July 17, 1990 THE CURRENT LEVEL REPORT 101ST CONG., 20 SESS.,

SENATE SUPPORTING DETAIL, FISCAL YEAR 1990 AS OF CLOSE OF BUSINESS JULY 13, 1990-Continued

[In millions of dollars]

Coast Guard retired pay ................. . Payment to civil service retire-

Budget authority

- 17

ment...... .. .................................... (84) Government payments for annu-

itants........................................... -3 Readjustment benefits ......... ............ - 62 Compensation................................... 258 Pensions .......................................... -62 Burial benefits ................................. - 4

Outlays Revenues

(84) ··················

-2 ................. .

············2aa····::::::::::::::::::

5:st~~a;:1r~ .. '.~~~~~i.n~-.'.~~.::::::: :: : -1 .iii~ ····· · · ·~·aa3 ··· ··················· ~~~~~~~~

-371 Total entitlement authority.... ...... - 3,834 VI. Adjustment for economic ana tech

nical assumptions......................... ..... ... - 28,685 - 26.763 - 8,900 ================ Total current level as of July

13, 1990 ... ....... ... .......... ........ . 1,326,110 1.169,393 1,060,256 1990 budget resolution H. Con. Res.

106 ..... ........... ...................... ...... .......... 1,329,400 l.165,200 1,065,500

Amount remaining: Over budget resolution ............. .. .............. 4,193 ............. .... . Under budget resolution ..... 3,290 ...................... 5,244

* Less than $500,000. Notes.-Numbers may not add due to rounding. Amounts shown in

parenthesis are interfund transactions that do not add to totals.e

CAPTIVE NATIONS WEEK • Mr. SIMON. Mr. President, July 15-21, 1990, marks the 31st anniversary of Captive Nations Week, honoring the people of oppressed nations around the world in their brave struggle for freedom. I am especially proud to celebrate their efforts this year because of the dramatic developments we have seen in Eastern Europe, the Soviet Union, Asia, and Central America.

We recently celebrated our own Independence Day. We remembered the many sacrifices American women and men have made in the past 214 years to secure the promise of liberty and freedom. Captive Nations Week commemorates the spirit of that promise across the globe.

As we welcome the triumph of democratic forces in much of Eastern Europe, we also acknowledge that our work is not done. The Soviet Union continues to illegally occupy and intimidate the citizens and Governments of the Baltic States: Lithuania, Latvia, and Estonia, who have boldly raised their voices for freedom. The people of Armenia, Ukraine, and Albania can still only hope to begin their march along the road toward freedom.

Mr. President, I am proud to celebrate Captive Nations Week. By honoring the peoples of the world in their struggle for independence, we reaffirm our commitment to a free and democratic world community.e

A NEW VENTURE WITH THE SOVIETS

• Mr. PRYOR. Mr. President, I would like to take a moment to applaud the efforts of several Arkansans who are quietly pioneering better relations and

profitable economic ties with the Soviet Union.

This story starts roughly 3 years ago when I organized a group of noted Arkansas businessmen for a trip to the Soviet Union. Our goals were to seek out new opportunities for trade with the Soviets and to explore the potential for joint ventures and marketing agreements. ·

Among that group, which included corporate giants like Sam Walton and Don Tyson, was an energetic attorney named Graham Catlett from Little Rock, AR. During the trip Graham Catlett saw a vision of great things to come for United States-Soviet relations and trade. He took our goal to heart and in the following years spent a great deal of his own money and time traveling to the Soviet Union to gain the Soviet's trust and respect and to try to match American companies with progressive Soviet organizations.

Mr. President, several weeks ago Graham Catlett got on a plane in Little Rock bound for Moscow. It is his 20th such trip in 3 years.

This flight was different. This time he returned to Moscow carrying the final papers for a landmark joint venture agreement between the United States and the Soviet Union.

The joint venture is called Micro International Exchange, or MIX. It is a 50-50 partnership between United States interests, including Micro Computer Center International of Little Rock and four partners in the Soviet Union.

Like several current joint ventures, MIX will import simple personal computer to the Soviet Union. But, Mr. President, unlike any current trade arrangements, MIX will be the 'first joint venture to involve the actual manufacture of personal computers in the Soviet Union.

Catlett pulled together several partners in Arkansas who will provide crucial marketing and manufacturing knowledge to the venture. The partners are Terry Johnson, John Beasley, and Laurie Johnson.

On the other end of the world, Catlett is being assisted by Eugene Boureiko, a Soviet with a sharp mind and eye on the future. The Soviet side of the venture is being backed by the Institute of Architecture, which will provide building space, the Finist Bank of Moscow, which is a newly chartered commercial bank, and two free enterprise cooperatives run by energetic entrepeneurs.

Mr. President, I am proud of what Graham Catlett and this group of business men and women are doing today. I am proud for my home State of Arkansas, I am proud for the United States and I am proud for the Soviet Union.

This is an exciting commercial activity and it is an exciting glimpse of what we all hope will become common-

place as the Soviet Union and the United States find new, peaceful, and more profitable ways t o work wit h each ot her.

Mr. President, I ask that a copy of the announcement of the MIX joint venture be placed in the RECORD following my statement.

The announcement follows: PRESS RELEASE

LITTLE ROCK, AR, May 26, 1990. The Board of Governors of the Soviet

American Joint Venture "MIX" announce their Articles of Incorporation and formal registration with the Soviet Ministry of Finance on April 11, 1990.

Joint Venture "Mix" or "Micro Internat ional Exchange" is a Manufacturing/Sales and Marketing Group with a primary emphasis in computer manufacturing and soft ware development in the Soviet Union.

American Joint Venture Partners are Graham Catlett of Catlett, Inc., and Laure H. Johnson, F. Terry Johnson, and John Beasley of Micro Computer Center International Group, Inc. both companies are in Little Rock, Arkansas. Soviet Joint Venture Partners are the Finist Bank of Moscow, Cooperative "Sovermennik". Soviet Architectural Institute "MARHI", and a Soviet scientific production co-operative "Adlos"-according to Attorney Grahman Catlett of Little Rock, "MIX" Board Chairman.

Members of the Joint Venture "Mix" Board of Governors are Americans Graham Catlett, Board Chairman, John E. Beasley, both of Little Rock, and F . Terry Johnson of Benton, Arkansas. Soviet Board Members are I. Mikhalevsky, K. Khourshudyan, A Stcherbakov, I. Lezhave, and Evegueny Bourelko-all of Moscow.

Joint Venture "MIX" marketing activities will be directed towards software sales and systems development to commercial joint ventures, state enterprises, and co-operatives in the Soviet Union. "MIX" will also focus on networking and communications of personal computers utilizing the newest technology available and will provide hardware/software solution packages to newly emerging business.

Additionally, "MIX" currently maintains offices in Moscow, and Kiev, U.S.S.R. and Little Rock, Arkansas.e

U.S.S. "AARON WARD" • Mr. SIMON. Mr. President, one of the people I have had a chance to work with through the years, for whom I have the greatest respect is Einar Dyhrkopp. He is a business leader in southern Illinois, who has also shown much above average leadership in civic affairs. He has an uncommon sense of what is needed and what is not needed in this Nation.

He is one of these people you are instinctively proud to be associated with.

One of the experiences that he has great pride in is his experience in serving in the U.S. Navy aboard the U.S.S. Aaron Ward. He and his colleagues of the U.S.S. Aaron Ward are going to be having a reunion in September in St. Louis.

I hope everyone cooperatives to make this reunion a most successful event.

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17731 I asked my friend, Einar Dyhrkopp,

to put together a little history of that ship, and he has done so. I ask to insert his statement at the end of my statement. It is another reminder of the sacrifice that a great many people have made on behalf of our freedom.

I had the honor to serve overseas in the Army under the U.S. flag, and I am proud to have done so.

But I also take great pride in people who serve on a ship like the U.S.S. Aaron Ward, and I particularly appreciate the kinship that they are still maintaining.

The statement follows: Fleet Admiral Chester W. Nimitz called

Lt. Commander Arnold S. Lott's book, "Brave Ship, Brave Men," "the finest story of the war which I have been privileged to read ... a beautiful writing job!" It is the story of a remarkable and heroic ship, the U.S.S. Aaron Ward <DM34> and the performance of her Captain William H. Sanders, Jr. and her crew. These men served on Radar Picket Station 10 off the shores of Okinawa to give early warning of kamikaze attacks to the main fleet. They were the first targets of the suicide planes sent by a desperate Japan in the last great battle of World War II.

Captain Sanders received the Navy Cross and the crew received a Presidential Unit Citation for heroic service on May 3rd, 1945, after numerous direct hits by suicide planes, bombs, and exploding ammunition nearly sank Aaron Ward. Commander Arnold S. Lott explains it graphically, "The night was black and deep, except where the Aaron Ward burned like a devil's barbecue. There was no electricity, no lights, no power, no pressure on the fire mains. Men fought fire the way they fought fire in Homer's day, with water. There was still plenty of water in the ocean, plenty of it already in the ship, too. Exploding ammunition rocketed toward the stars. Men did not know if they would die by going down or blowing up. They did not know how much time there might be, but in what time there was, they fought to save their ship. And, so they did. And, so they become heroes!"

Aaron Ward was dead in the water, a burned out derelict. She had fired her few remaining guns as long as the suicide planes kept coming, she shot down several. Finally she was towed to Kerama Retto for temporary repairs. Captain Sanders soon realized that his ship would be cannibalized beyond hope of saving her, if he did not leave that place, and his brave crew <what was left of them) would be scattered over the Pacific. He decided to limp home with her, when they were able to get steam up on one boiler. He was determined to keep his ship and her brave men together. And, so he did. And he had kept the crew together ever since.

Aaron Ward <DM34) and her crew were in Brooklyn Navy Yard when World War II was over. Captain Sanders and men had to bid farewell to their fighting ship. She was a fast ship, and they took her in harm's way, and they brought her back. And they're proud as hell, and they're never going to forget. They are sorry that so many of their shipmates didn't make it, but Captain Sanders has kept the rest of them together. Each year there is a Christmas letter from Captain Sanders, together with current information about almost all of the living crew members and their families. Survivors

of those who died May 3rd are also included. On this September 14th, 15th, and 16th Aaron Ward's 14th Biennial Reunion will be held in St. Louis, Missouri. A memorial service with Captain Sanders in attendance will highlight the proud occasion.

It is fitting that we pay tribute to them, before their shining metals have turned to rust and their bones have turned to dust.e

SELF-DETERMINATION FOR PUERTO RICO

• Mr. SIMON. Mr. President, I rise today to again speak in strong support of the Puerto Rico plebiscite bill, S. 712, and to share with my colleagues an important article on the status question written by Guillermo Moscoso, a retired lawyer living on the island of Puerto Rico.

Earlier this year, Patrick Buchanan, a well-known newspaper columnist, forcefully outlined what he viewed would be the detrimental political, economic, and social consequences of Puerto Rican statehood. I do not share that view and neither do many Puerto Ricans or others who have considered the status question. Mr. Buchanan's column has been previously placed in the CONGRESSIONAL RECORD. It is instructive, therefore, to consider Mr. Moscoso's response.

Mr. President, I hope for Senate action soon on S. 712. As I have said before, the choice of Puerto Rico's status is one that belongs in the hands of the people of Puerto Rico. A congressionally sponsored plebiscite is the best way for that choice to be made known to Congress and all the American people.

In order that my colleagues can have the full breadth of information on Puerto Rico and Puerto Ricans, I ask that the statement previously ref erred to be printed in the RECORD immediately following my remarks, as well as Mr. Moscoso's response to that opinion.

The material follows: PUERTO RICO AS OUR 51ST?

<By Pat Buchanan> From opposite directions on Pennsylvania

Avenue, Oscar Collazo and Griselio Torresola made their way to the iron door of Blair House. The plan: meet at the stairs, shoot their way inside and assassinate President Truman. They came close. Torresola was killed on the spot by dying police hero, Leslie Coffelt, Collazo wounded. But, to the tiny Puerto Rican party then seeking a break free of the United States, Torresola would become a martyr, Collazo a hero.

Four years later, independentistas smuggled weapons into the visitor's gallery of the House of Representatives and sprayed the floor, wounding five.

That was long, long ago. But, as last June's march of 80,000 through San Juan demonstrates, the desire for an independent Puerto Rico yet burns in the breasts of many on that island we seized as war booty from Spain in 1898. Though only a tiny fraction of the 10 percent who seek independence endorse violence, that fraction yet finds bloody expression in Los Macheteros.

To the point, not enough hard thought is being given by Mr. Bush to the potential consequences of making Puerto Rico our 51st state. We may be about to create a Northern Ireland in the Caribbean.

Legislation is quietly moving through Congress for a summer 1991 vote, which would permit Puerto Rico's 3.5 million to choose statehood, commonwealth status or independence. The 248 million in the 50 states would have no say in the matter. If the island chose statehood, the grant of statehood would be automatic.

Again, we had best wake up to what is going down.

Already, 40 percent of the people on the island get federal benefits. If statehood is adopted, the cap on welfare spending comes off, and perhaps 60 percent would be eligible for Aid to Families with Dependent Children, food stamps, Medicaid, etc. The present $6 billion in U.S. budget outlays would explode.

Can we afford this-and not only in welfare payments?

Considering what the Great Society did to Washington, with the nation's highest per capita income, do we really want to convert Puerto Rico (per capita income $4,500, not half that of Mississippi) into a Carribbean reservation mired in the same rage and resentment that those dependent on welfare exhibit everywhere else in America?

Dutifully, of course, such a state would send six Democrats to an enlarged House of Representatives, and two liberal senators to help Massachusetts' Edward Kennedy overturn the Reagan revolution. Why is the GOP enthusiastic about this?

Why not leave well enough alone? Today, Puerto Rico is an enterprise zone. Under Section 936 of the Internal Revenue Code, U.S. factories there are exempt from corporate income taxes; islanders need not file 1040s on April 15. But if Puerto Rico votes statehood-and the proffered bribe of a cornucopia of federal goodies is tilting it that way-all tax privileges would have to go; and we would soon have a tax revolt from Puerto Rico's middle and upper classes.

Have we considered the fundamental change in the character of our union, if Puerto Rico becomes the 51st state?

An English-speaking people, we Americans would become a bilingual nation. For the English language could not be forced upon this island of Spanish heritage, where 60 percent do not even understand it.

According to the Senate bill, all that is needed for this historic change is for just half the island to vote "yes" on statehood. While Puerto Rico is entitled to decide its own future, is 50.1 percent enough of a plurality to effect the permanent transfer of sovereignty, to make Puerto Rico a permanent part of the American Union?

Thirteen decades ago, we fought a bloody Civil War to prevent the Confederate states from breaking free. Are we prepared to send troops, if the people of Puerto Rico should later change their minds? Are we prepared to fight a guerrilla war, like the British in Belfast, if the Macheteros emulalte the Irish Republican Army? Before entering a marriage, "till death do us part," ought not both the island and the mainland reflect longer upon how nasty a divorce would be?

If it ain't broke, don't fix it. There is no overwhelming clamor for

statehood on the island; nothing is wrong with today's commonwealth status that cries out for repair. And, as in the 13 Colonies in 1775, there is a vocal minority for total independence whose views ought to be

17732 CONGRESSIONAL RECORD-SENATE July 17, 1990 respected, if not heeded. The last thing America needs now is to clasp to her bosom forever, 300,000 embittered Hispanics who yet dream of an independent country.

Before this island, with the size and population of a small nation, becomes a state, at least two-thirds of its people, better yet three-fourths, should request it. And, the 248 million who reside in the 50 states should be given time to reflect on their request to join the American family, forever.

From Serbia to Azerbaijan, from the West Bank to Soweto, from Scotland to Quebec, ethnic chauvinism is on the rise. Separatism is everyWhere winning converts. People are demanding not what is in their economic interest but what they deem vital to preserving the race, the tribe, the religion, the culture. While we may bemoan the trend, we cannot deny it; nor are we Americans immune to it.

In such an environment, prudence dictates that we think twice, then think again, before annexing forever to the American Union an island people with a separate cultural nationality, who do not speak our language, and who are still deeply divided in their own desires.

PAT BUCHANAN'S INACCURACIES

(By Guillermo Moscoso) Much has been said about syndicated col

umnist Patrick Buchanan's article on Puerto Rico, published in The Washington Times on February 26. The article, which reflected a great deal of ignorance about Puerto Rico (something which is par for the course on the mainland, with only ourselves to be blamed for it) was made a part of the record at the hearings on Puerto Rico's proposed status referendum held on March 2 by the U.S. House of Representatives' Insular and International Affairs Subcommittee.

The article, which appeared to be tailor made and the result of a well coordinated pubic relations effort to coincide with the above mentioned hearings in Washington, served to confuse the nation more on our political, economic and social realities. The article was packed with a series of inaccuracies some of which I feel are worth bringing to the public's attention, as follows:

Buchanan: 1. "Ten percent of Puerto Ricans seek independence."

Comment: Historically, since the middle of the nineteenth century, the independence movement in Puerto Rico has never been a political force. For a generation, the votes for independence at the polls have fluctuated between three and five percent, with only around 100,000 voters out of a voting population of over 1.5 million <one million five hundred thousand).

Buchanan: 2. "In June, 1989, 80,000 marched through San Juan demonstrating a pro-independence sentiment."

Buchanan: 3. "The 248 million Americans in the 50 states would have no say in matters of granting statehood for Puerto Rico."

Comment: Evidently, Buchanan forgets that the United States operates under a representative democracy. The people in the states of the Union would have a say through their representatives in Congress. This procedure was carried out when 37 territories were admitted to the Union as states.

Buchanan: 4. "Puerto Rico's per capita income is $4,500 yearly."

Comment: It is actually around $5,500 but even this figure is considered inaccurate in view of Puerto Rico's disproportionately large "undergound economy", prompted by uncalled for high taxes.

Buchanan: 5. "Puerto Rico, as a state, would send six Democrats to the House and two liberal senators to the Senate."

Comment: This is a highly speculative matter. In the case of Hawaii and Alaska, for example, it did not happen as expected, with respect to members sent to Congress. But one thing is certain, Puerto Rican voters are essentially conservative; by far more so than those on the mainland. This is particularly the case on social, foreign relations and defense issues. Religious values and family ties are deeply entrenched in Puerto Rico. On issues like abortion, the opposition to it among Puerto Ricans reflects quite a degree of conservatism. On matters related to defense, the great majority of Puerto Ricans supported the U.S. invasions of Grenada and Panama. With regard to wars in which the U.S. has been involved, the participation of Puerto Ricans in said wars was greater, for example, than the 22 states of the Union <most of the enlistment for military service was done on a voluntary basis>.

Under the aforementioned circumstances, Buchanan's prediction that Puerto Rico would send liberals to the U.S. Senate if it becomes a state is without foundation and definitely speculative.

Buchanan: 6. "Under statehood all Puerto Rico's tax privilege would have to go and the U.S. would soon have a tax revolt from Puerto Rico's middle and upper classes."

Comment: At present, Puerto Rico is the U.S. jurisdiction with the highest taxes. Under statehood, after the transition period, taxes in Puerto Rico would go down. Personal income tax in Puerto Rico is so high, that U.S. companies operating in Puerto Rico pay their executives coming from the mainland a tax equalization allowance so that they would only be subject to what they normally would pay on the mainland by way of income tax.

Buchanan: 7. "As English speaking people, we Americans would become a bilingual nation, for the English language could not be forced upon Puerto Rico, of Spanish heritage, where 60 percent do not even understand English."

Comment: It is hard to understand Buchanan's view to the effect that the U.S. would become a bilingual nation if Puerto Rico is admitted as a state. How can he possibly say that the U.S. is not already a nation where many languages are spoken? That the English language is not the official language of the nation and that the U.S. Constitution has left it to the states to determine their official language? Recent court decisions have upheld the right of the states to so determine. How can Buchanan possibly ignore the Spanish heritage of such states as California, New Mexico, Texas and Florida? How can Buchanan ignore the fact that the U.S. is a nation of ethnic groups with different languages, heritages and traditions? How can he ignore the fact that Americanism is not a matter of race, heritage or language, but a matter of the mind and heart?

Evidently, Buchanan ignores that Puerto Ricans, as U.S. citizens, share with other U.S. citizens the same values, traditions, customs and patriotism, without ignoring their own heritage and love for Puerto Rico.

One more thing: Buchanan forgets that, as Puerto Rico's former governor Carlos Romero Barcel6 correctly said at the March 2 hearings, the U.S. is no longer a melting pot of people from everywhere in the world, but is today a salad bowl!

Buchanan: 8. "If it ain't broken, don't fix it. Nothing wrong with today's common-

wealth status that cries out for repairs. There is no overwhelming clamor for statehood on the island."

Comment: Buchanan ignored the fact that the three major political parties in Puerto Rico, including the one which favors commonwealth, requested the status referendum because they feel the present commonwealth status does not satisfy the political, economic and social needs of Puerto Rico. As a matter of fact, for 30 years these parties have shown inconformity with Puerto Rico's political status.

Buchanan also ignored the recent public opinion surveys which have reflected the increasing prostatehood sentiment in Puerto Rico throughout the years and not just now and because of the food stamps program and other federal economic assistance, including provisions of economic help in the Senate's Referendum Project 712, approved by the Senate Energy and National Resources Committee last year.

Let's keep in mind that it is one thing to vote at regular elections for a political party and individuals and quite another to vote in a referendum for the political status destiny of Puerto Rico. I expect that in the latter case, the overwhelming majority of Puerto Ricans will vote for statehood. This will be so because overwhelmingly the people of Puerto Rico want permanent union with the United States, cherish their U.S. citizenship and strongly feel that the real permanent union can only be achieved by being a state of the Union and not under a Pact of Free Assocation or its actutal equivalent, an Associated Republic. And much less under a political formula claiming shared or bilateral sovereignty with the United States, which would be not only unrealistic, but constitutionally and juridically impossible.

Buchanan: 9 "By making Puerto Rico our 51st state, we may create a Northern Ireland in the Caribbean."

Comment: Puerto Ricans are known for being peace loving people. Actually, there is no historical evidence that Puerto Rico could be a Northern Ireland if it becomes a state. Let's not be scared by the boogeyman of Northern Ireland <in Spanish we call it the "cuco"). Of course we are bound to initially have protests and rabble rousers who might even resort to voilence, but soon all this will fade away in light of the overwhelming will of the people of Puerto Rico. But speaking of protests and violence, the U.S. mainland is not immune to them as we frequently read in the newspapers, including protest marches in front of the White House and the Capitol in Washington.

Yes, Buchanan, I agree with you that people throughout the world are claiming their right to self-determination in order to decide what is best for their progress and well being. This is precisely why the U.S. cannot postpone giving the people of Puerto Rico an opportunity to select their status preference. The U.S. Congress must expedite the referendum legislation and reject those who wish to kill it either because they are only interested in obtaining power in the 1992 elections <and control the juicy fiscal budget> or because they have realized that their political status formula cannot win in a referendum.

The United States must show the world that it wants to comply with democractic principles such as the right to self-determination. Above all, the United States must understand that compliance with those principles cannot depend on the economic cost of any one of the political status options which Puerto Rico has. Cost was cer-

July 17, 1990 CONGRESSIONAL RECORD-SENATE 17733 tainly not a factor when the U.S. moved to advance self-determination in Grenada, Panama and Nicaragua. Why should it be in the case of Puerto Rico where U.S. citizens are involved? What is really involved in this referendum legislation now before the U.S. Congress in not only the historic responsibility that the U.S. has towards Puerto Rico, but the inherent right of Puerto Rico to be given the opporutnity to decide its own political status destiny according to international law and in the exercise of its right to self-determination. I am confident the U.S. will live up to its commitment.

I, therefore, exhort the members of the U.S. Congress not to allow themselves to be manipulated toward postponing any further the solution of Puerto Rico's ambivalent political status, which in fact makes Puerto Rico the oldest colony in the world today.

I hope Buchanan finds the opportunity to visit us and become acquainted with our history and our political, economic and social realities before he is persuaded again to write about Puerto Rico.e

RESOLUTION TO AMEND SENATE RESOLUTION 66

Mr. BOSCHWITZ. Mr. President, I send a resolution to the desk and ask for its immediate consideration on behalf of Senator MURKOWSKI.

The PRESIDING OFFICER. The resolution will be stated by title.

The legislative clerk read as follows: A resolution <S. Res. 309> to amend Senate

Resolution 66, relating to committee funding, to clarify the spending authority of the Committee on Veterans' Affairs.

The PRESIDING OFFICER. Is there objection to the present consideration of the resolution?

There being no objection, the Senate proceeded to consider the resolution.

The PRESIDING OFFICER. The question is on agreeing to the resolution.

The resolution <S. Res. 309) was agreed to.

The resolution reads as follows: S. RES. 309

Resolved, That <a> section 18 of Senate Resolution 66, agreed to February 28, 1989 <lOlst Congress, 1st Session) is amended-

(!) in subsection by inserting after "$1,123,937" the following: ", of which amount not to exceed $5,000 may be expended for the training of the professional staff of such committee <under procedures specified by section 202(j > of the Legislative Reorganization Act of 1946, as amended>"; and

(2) in subsection (c) by inserting after "$1,148,131" the following: ", of which amount not to exceed $5,000 may be expended for the training of the professional staff of such committee <under procedures specified by section 202<j > of the Legislative Reorganization Act of 1946, as amended)".

(b) The amendments made by subsection <a> are effective on March 1, 1989.

Mr. BOSCHWITZ. Mr. President, I move to reconsider the vote.

Mr. MITCHELL. I move to lay that motion on the table.


Mr. MITCHELL. Mr. President, I suggest the absence of a quorum.





ORDERS FOR TOMORROW Mr. MITCHELL. Accordingly, Mr.

President, I ask unanimous consent that when the Senate completes its business today it stand in recess until the hour of 9 o'clock tomorrow morning; that, following the time for the two leaders, there be a period for morning business not to extend beyond 10:15 a.m. with Senators permitted to speak therein; that at 10:15 a.m. the Senate return to consideration of the civil rights bill; and, that there then be 12 hours remaining on the Kennedy-Jeffords substitute to the bill under the cloture rule.

The PRESIDING OFFICER. Is there objection to the request? Without objection, it is so ordered.

Mr. MITCHELL. Mr. President, let me say that I hope very much that those involved in the discussions-and I will not be among those involvedwill be able to reach agreement on the outstanding matters. This is a very important bill. I think there is a widespread consensus in the Senate that we want to move forward on this important measure. There is reasonable and understandable disagreement on some aspects of it. But I hope that those differences can be bridged, that we can reach agreement on a bill that will become law, and move us forward in this important area.

I will be pleased to yield to the distinguished Republican leader at this time.


Republican leader is recognized. Mr. DOLE. Let me indicate that I

am in agreement with the majority leader and the unanimous-consent request, and I think everybody agrees it is worth one last shot, one last effort. That will be done starting very soon, and we will see what may develop.

If there is not any resolution, then there are 12 hours. There are a number of options that we have discussed. I do not see any reason to discuss those now. But I want to point out that even if we get into a logger-

head, even though the substitute would be adopted, there still could be 30 hours of debate on the bill. It would not be amendable.

So the point I would make is this is not an effort to delay as we indicated earlier. But hopefully, there can be some resolution.

It is very, very complicated, as I indicated earlier. There are so many lawyers involved it may not be possible to resolve, it. But I think the majority leader stated it correctly.

Mr. MITCHELL. Mr. President, I thank my colleague.

Mr. President, I suggest the absence of a quorum.





The majority leader is recognized.

PROGRAM Mr. MITCHELL. Mr. President, I

ask unanimous consent that when the Senate convenes tomorrow, the Journal of the proceedings be deemed approved to date; that the time for the two leaders be reserved for their use later in the day; that upon reservation of the leaders' time, there be a period for morning business not to extend beyond 10:15 a.m.; that during morning business, Senator GRAHAM of Florida be recognized for not to exceed 20 minutes, and that Senator WIRTH be recognized to control for not to exceed 30 minutes.


RECESS UNTIL TOMORROW AT 9 A.M.

Mr. MITCHELL. Mr. President, if the acting Republican leader has no further business and if no other Senator is seeking recognition, I ask unanimous consent that the Senate now stand in recess as under the previous order until 9 o'clock tomorrow morning.

There being no objection, the Senate, at 9:04 p.m., recessed until at Wednesday, July 18, 1990, at 9 a.m.

NOMINATIONS Executive nominations received by

the Senate July 17, 1990: DEPARTMENT OF COMMERCE

WAYNE LEE BERMAN, OF NEW YORK, TO BE AN ASSISTANT SECRETARY OF COMMERCE, VICED. BRUCE MERRIFIELD.

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