Quota Quagmire

By PRISCILLA PAINTON

Here are examples of what passes these days for communication across the color line: In Tamarac, Fla., a 20-year-old black cook was questioned by police for 45 minutes after officials at the bank where he wanted to open an account reported that he planned to rob it. In New York City a rumor that a soft drink sold in poor neighborhoods had been secretly manufactured by the Ku Klux Klan to make blacks sterile worked so well that sales plummeted 70%. And a University of Chicago survey of racial attitudes found that 3 out of 4 whites believe black and Hispanic people are more likely than whites to be lazy, less intelligent, less patriotic and more prone to violence.

These are among the signs that blacks and whites are still talking past each other, that the nation could stand to pause and have a long, constructive conversation about race. Instead, the political establishment in Washington has transformed what should be a serious discussion about civil rights legislation into a festival of sophistry.

Last week the verbal posturing gave way to desperate, eleventh-hour arm- twisting and compromises, as House Democratic leaders scrambled to find the votes they need to override a possible presidential veto. It was a spectacle the Republicans enjoyed. "The Democrats are not going to get the votes they need, and that will finish off civil rights for this year," crowed G.O.P. whip Newt Gingrich. Privately, civil rights lobbyists acknowledged that Gingrich was right.

The key aim of the bill, which is scheduled to reach the House floor this week, is to make it easier for minorities and women to sue against "unintentional" employment discrimination, such as a hiring exam that may look fair but has the effect of keeping out members of some groups. The White House and congressional Republicans claim that the Democratic bill would go too far, encouraging the use of racial hiring quotas, subjecting white males to "reverse discrimination" and rewarding more lawyers with more money. Democrats reply that the White House alternative does not go far enough, and would make victims of discrimination jump through hoops to prove they are victims.

A central issue is who should bear the "burden of proof" when a worker complains that a company discriminates in its hiring and promotions. Until two years ago, it was up to the employer to show the "business necessity" of practices that have a "disparate impact" on minorities. Under that standard, plaintiffs were not required to prove that an employer had deliberately set out to be unfair to minorities; statistics showing that qualified minorities were underrepresented in a company's work force or had been consistently denied promotions were enough to make the case.

But in a 1989 case called Wards Cove Packing Co. v. Atonio, the U.S. Supreme Court ruled that it was up to complaining workers to prove a lack of "business necessity" for such practices. Statistics were no longer enough; lawyers in effect had to read employers' minds to demonstrate that they had consciously planned to favor whites.

Both Republicans and Democrats want the decision reversed, a remarkable consensus that should have yielded a law by now. But the Republicans have turned the legislative battle into the opening round of the 1992 election campaign, and the Democrats are fumbling for a way to counterattack. Despite the fact that there are no truly significant differences between the competing proposals, the debate has sunk to the realm of the picayune. While Democrats use language like "significant relationship to the successful performance on the job," for example, the Republicans want to say "a manifest relationship to the employment in question."

The Republican goal is to associate the Democrats with the dread word quota. George Bush's private polls have underscored the lesson North Carolina Senator Jesse Helms delivered in his ugly finale against black Democrat Harvey Gantt last November -- that wavering white Democrats will scurry into the G.O.P. camp at the mere suggestion that blacks deserve special treatment to compensate for centuries of bigotry. A last-minute weapon in Helms' arsenal was a TV spot showing white hands holding a job-rejection slip, while a narrator intoned, "You needed that job, and you were the best qualified. But it had to go to a minority because of a racial quota." Helms won by 4%.

Bush has not shied away from exploiting the issue. When he vetoed a similar civil rights bill last year, he talked about the "destructive force" of quotas in the same warrior tones Ronald Reagan once hurled against the "evil empire." Although the Democratic bill explicitly discourages the use of quotas, the Republicans argue that the idea is clearly implied in that version. They say that if the bill becomes law, companies will try to "inoculate" themselves against discrimination suits by quietly trying to match the percentage of blacks on the payroll with the percentage of blacks in the local labor market. Though Republicans say that would be unfair to whites, the Federal Government does it every day. In fact, Bush's Office of Federal Contract Compliance Programs uses precisely the same standard to determine whether corporations that do business with the government are complying with laws against discrimination.

Some White House officials, however, are so determined to keep quotas alive as a political issue that they have interfered with efforts to reach a compromise. Last month chief of staff John Sununu and counsel C. Boyden Gray put pressure on members of a group of top corporate executives called the Business Roundtable, who were trying to forge an agreement on the bill, to break off their talks with civil rights leaders. The two Bush aides also criticized the Roundtable's involvement at a White House meeting with representatives of small businesses who oppose the bill. That was the last straw for Robert C. Allen, chairman and chief executive officer of AT&T, who had initiated the negotiations. He withdrew on April 19, taking with him the influence and good intentions of the 200-member organization.

The Democrats, in the meantime, have gone into contortions to keep the bill from appearing to be about skin color. In their attempts to get backing for their version, they have called it a "job opportunities bill" or a bill "for all working Americans." But their main effort has been a campaign to stress that women could be the major beneficiaries. To attract support from the 43% of the population that is both white and female, they have included a provision that would allow women who are discriminated against to sue in federal court for an unlimited amount; under current law, only victims of racial discrimination have that right.

The proposal made uneasy conservative Democrats even more uneasy. So last week House leaders accepted a limit of $150,000 on jury awards to female plaintiffs. Though that might attract more conservative supporters, it alienated the Congressional Caucus on Women's Issues and many of their allies in the civil rights community. Says Ed Dorn, an analyst at the Brookings Institution: "The strategy on the issue this year has been exceedingly awkward and poorly planned."

In the Senate there has been no strategy because there has been no bill. Democrats there have reason to be skittish. Of the 35 Senators up for re- election in 1992, 19 are Democrats and 11 of them are freshmen. Five are from the South, where they need both white and black support to win and where a vote on a civil rights law is sure to offend one group or the other.

The problem of how to reconcile blacks and working-class whites, once the backbone of the Democratic Party, is compounded by the recession. "People are feeling very vulnerable in their job situations," says Democratic Congressman Timothy Penny of Minnesota. "Quotas mean jobs for some and pink slips for others." The racial split so torments Democrats that it has overshadowed every other issue. At a meeting in Cleveland earlier this month, members of the moderate Democratic Leadership Council spent most of the time wrangling over the phrase "We oppose discrimination of any kind -- including quotas." Warned Paul Tsongas, the former Massachusetts Senator who is the only declared Democratic candidate for President: "We must tread lightly here. These are our family jewels. If we discard them, we will wander into the wilderness with those who have no moral purpose." But others, like Ron Gamble, a state representative from Pennsylvania, said the word could cost the party the next presidential election. "If we have to appease this interest group or that interest group," he said, "we will leave Cleveland as losers." The inelegant compromise left everyone dissatisfied, and party chairman Ron Brown felt the need to remind his fellow Democrats to turn their fire on the Republicans.

While politicians mangle the language and one another, there is fresh evidence that blacks continue to face strong barriers in the workplace. A study by the Urban Institute released last week showed that in 1 out of 5 attempts to get an entry-level job, a white applicant advanced further in the hiring process than a black applicant who was equally qualified. Since the late 1970s, the gap between the average earnings of black and white workers has failed to narrow: the average annual income of black workers in 1989 was $8,747, compared with $14,896 for white workers.

Despite these inequities, some blacks have turned their attention away from Washington -- to the deteriorating inner-city neighborhoods -- and concluded that the semantic dueling in Washington is beside the point. "If Congress passed their version of the civil rights bill tomorrow, would things be all right in black America?" asks Charles R. Stith, founder of the Boston-based Organization for a New Equality, a six-year-old civil rights group. "The answer is no. It's a solution to a political problem. The problem we now face is fundamentally an economic problem." From that perspective, it does not matter whether the current bill passes, since neither version would help a single crack addict kick the habit, persuade a youngster to stay in school or give an unwed mother the training she needs to get a job.

CHART: NOT AVAILABLE

CREDIT: From a telephone poll of 504 white and 504 black American adults taken for TIME/CNN on April 24-29 by Yankelovich Clancy Shulman. Sampling error is plus or minus 4.5%. "Not sures" omitted.

CAPTION: Have affirmative-action programs helped blacks get better job opportunities?

Have job opportunities for blacks become better in the past five years?

Do we need more government efforts to help blacks get better job opportunities, are existing programs adequate, or do they go too far?

Do affirmative-action programs for blacks sometimes discriminate against whites? If "yes," does this happen a lot or only sometimes?

With reporting by Laurence I. Barrett and Nancy Traver/Washington and Sylvester Monroe/Los Angeles