The Leadership Conference on Civil and Human Rights

The Administration should support vigorous enforcement of the laws prohibiting employment discrimination and ensure that the agencies enforcing these laws receive adequate funding. It should work with Congress to restore workplace civil rights eroded by recent Supreme Court decisions. Enactment of the Employment Non-Discrimination Act should be a priority.

The right to earn a living — to be a productive and self-sufficient member of the economic community — is critical to the resolution of many other inequities prevalent in low-income and minority communities. Vigorous enforcement of the laws prohibiting discrimination in employment on the bases of race, sex, age, disability, religion and national origin are therefore at the core of the civil rights agenda.

Historically, these laws have been interpreted broadly, so as to maximize the rights of workers to be free of arbitrary and invidious discrimination. Unfortunately, a series of decisions issued by the U.S. Supreme Court and expanded in the lower and state courts have narrowed the scope of these laws and severely hampered the ability of employees to assert their rights and the effective enforcement of these laws. Limiting the scope of these decisions to the extent possible, vigorously defending the constitutionality of the civil rights laws prohibiting workplace discrimination in the courts, and opposing legislative efforts to weaken these laws are critical tasks for this Administration.

President Bush has spoken movingly about the role of his father's administration in passing the Americans with Disabilities Act (ADA), an historic expansion of the civil rights laws. We urge his own Administration to expand upon his family's legacy by fighting for legislation that restores the ADA and its companion civil rights laws to their full force and effect. In particular, we urge him to support the Employment Non-Discrimination Act. The one minority group against whom it is legal to discriminate in employment is gay and lesbian Americans. In 1996 the Senate came within one vote of passing the Employment Non- Discrimination Act, a bipartisan proposal to extend basic workplace protections to gays and lesbians.

We also urge the Administration to ensure that implementation of the initiative that will allow federal funds to flow directly to religious organizations for religious purposes not be used to sanction or facilitate government-funded employment discrimination by such organizations. The use of federal monies creates a bright-line distinction with private sectarian institutions funded with private dollars who enjoy some exemptions from the non-discrimination laws. Government funds must not be used to facilitate activities contrary to the most basic tenets of equality and fairness.

Other critical issues include:

• Ensure that workers have full access to courts, remedies, and procedural protections in employment disputes. The recent decision of the U.S. Supreme Court in Circuit City Stores, Inc. v. Adams, (_ U.S. _, 2001), upheld the validity of a mandatory arbitration clause included in an employment application. The case illustrates a disturbing trend: more and more employers require workers to agree, as a condition of employment or promotion, that any and all future employment disputes be settled through mandatory, binding arbitration.
  Forcing workers into arbitration undermines one of the key tenets of federal civil rights law: the right of job discrimination victims to have their federal claims heard in federal court by judges sworn to apply and uphold the law. Mandatory arbitration programs deny workers some of the most important civil rights protections first established in the Civil Rights Act of 1964 and later expanded by the Civil Rights Act of 1991, e.g., access to jury trials and full remedies for discrimination victims. Furthermore, there are few if any standards established for such arguments. We urge the Administration to support Senator Feingold's Civil Rights Procedures Protection Act, which would amend certain Federal civil rights statutes to prevent the involuntary application of arbitration to claims that arise from unlawful employment discrimination.
• Restoration of the rights of state employees. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Court held that, although the Age Discrimination in Employment Act (ADEA) applies to state employers, state employees have no private rights to sue their employers for violations of that law. In effect, older state workers have become second-class citizens — no other large employer is permitted to escape liability for age discrimination in this fashion. The Supreme Court made a similar decision with regard to employment claims against state employers under the Americans with Disabilities Act. Board of Trustees of the University of Alabama v. Garrett. (531 U.S. _, 2001).
  Last year, Senators Jeffords and Kennedy sponsored the Older Workers' Rights Restoration Act, which would condition the receipt of federal funds by a state on a waiver of sovereign immunity with regard to ADEA suits by the state program or activity receiving the funds. LCCR urges the Administration to support this legislation and work for its speedy passage.
• Restoration of the full scope of ADA protections against employment discrimination. In Sutton v. United Air Lines, 527 U.S. 471 (1999), the Court held that a plaintiff is not "disabled" under the Americans with Disabilities Act if the impairment could be fully corrected using medication or medical devices . . . . but an employer may rely upon the uncorrected disability to deny employment to the plaintiff. By creating this enormous loophole in the coverage of the ADA, the Court has dramatically reduced the rights of persons with disabilities to fair treatment in the workplace. Unfortunately, Sutton is just one of a number of decisions in this vein.
• Passage of the Civil Rights Tax Fairness Act. Through a unintended combination of Supreme Court decisions (Commissioner of the IRS v. Schleier, 515 U.S. 323 (1995); U.S. v. Burke, 504 U.S. 229 (1992)), Internal Revenue Service rulings, passage of the Small Business Act in 1996, and the alternative minimum tax (AMT), successful plaintiffs in employment discrimination cases are subject to extraordinary tax burdens: they are immediately taxed on the full amount of the back pay award, even though it may represent many years of back pay; they are taxed on the attorney's fees paid by the defendant to the plaintiff's attorney (and then the plaintiff's attorney is taxed on the fees again); the award may be so disproportionate to their other income that they are subject to the AMT. It is not unheard of for prevailing plaintiffs to owe taxes in excess of the damages they actually receive. Settlement of these cases has become much more difficult and expensive.
  Last year, Senator Grassley introduced the Civil Rights Tax Fairness Act to restructure the system for taxing these damage awards. We urge the Administration to support this legislation.
• Strengthen Equal Pay requirements. Senator Harkin's Fair Pay Act would modify the standard used to establish equal pay violations; Senator Daschle's Paycheck Fairness Act would close loopholes in the Equal Pay Act to ensure that women are paid equally for equal work. LCCR urges the Administration to support these and other efforts to eradicate discriminatory pay practices.
• Equalize civil rights remedies. The 1991 Civil Rights Act allows successful plaintiffs in Title VII cases to recover compensatory and punitive damages but sets arbitrary limits on the amount of such damages that may be awarded. This means that some victims of employment discrimination, including women subjected to sexual harassment on the job, do not have a complete remedy for their injuries. The Equal Remedies Act would eliminate this anomaly in the civil rights laws. LCCR urges the Administration to support this legislation.
• Restore the Responsible Contractor Regulations. These regulations require federal agencies to scrutinize prospective contractors' records of compliance with civil rights statutes and other laws prior to awarding government contracts. In effect, they insure that federal monies are not used by contractors who engage in discrimination or otherwise for a discriminatory purpose. LCCR urges the Administration to reconsider its decision to block these new rules.
• Protecting Workers' Rights. All too often workers who attempt to join unions, assert other rights in the workplace, or file complaints with protection or civil rights agencies face employer threats, retaliation and discrimination. LCCR urges the Administration to vigorously enforce worker protection laws and take the steps necessary to protect those who assert their rights under those laws.
• Make Family and Medical Leave More Affordable and Accessible. The Family and Medical Leave Act of 1993 (FMLA) provides much-needed protection from job and health insurance loss to workers temporarily unable to work due to birth, adoption, or serious family illness. But, too many people — especially low income workers — are unable to exercise their rights under the FMLA because they don't meet its eligibility requirements or because they can't afford to take unpaid leave. To ensure that family and medical leave is more affordable and accessible, LCCR urges the Administration to: vigorously enforce the FMLA; support its expansion to cover employees in mid-sized businesses and employees who need leave for additional compelling reasons; oppose legislation that would weaken the FMLA's protections through so-called "clarifications,";and continue the Labor Department's Babies and Adoption Unemployment Insurance program, which, at states' option, allows employees to collect unemployment benefits during parental leaves.