Posted on July 15, 2004

The (Un)Fairness Act

Roger Clegg, National Review Online, Jul. 12

Businesses are likely to shudder at last week’s choice of trial lawyer John Edwards to be John Kerry’s running mate. But news from the week before should have already started the shudders. In the “Kerry Campaign Fact Sheet on Expanding the Promise of the Civil Rights Act” — released on July 2, to correspond with the 40th anniversary of the 1964 Act — Kerry declares that he “supports the Fairness Act.” The particulars of that bill, now pending in Congress, are sobering stuff for business.

Kerry’s announced support for the Fairness Act is not news. He — and Senator Edwards — are cosponsors of the bill, introduced by Sen. Edward Kennedy. Here is what it would do.

Several provisions of the bill are aimed at expanding the use of “disparate impact” lawsuits. This makes it possible to bring a successful discrimination claim against a defendant, even if said defendant’s challenged practice does not treat people differently because of race or sex or age, is applied equally to all groups, and was adopted with no discriminatory intent. None of that matters under the disparate-impact approach, however, so long as the challenged practice has a statistically greater impact on one group than another.

Suppose, for instance, that a company decided to build a factory in a depressed area of a county. It did so for entirely economic reasons: The land there was cheap, there were plenty of willing and able workers nearby, and indeed the local citizens and their chamber of commerce urged the company to build there. But if the locale is mostly black, the company still risks a lawsuit under the disparate-impact approach, because one disgruntled resident with a sharp lawyer can claim that pollution from the factory will disproportionately affect African Americans.

This is the sort of nonsensical claim that the Fairness Act loves. It authorizes disparate-impact lawsuits with respect to race, sex, and age whenever any program that receives federal money is involved, and makes it possible for private lawsuits to be filed to enforce federal regulations that use the disparate-impact approach. It also codifies the availability of such claims with respect to age (this has already been done, unfortunately, with respect to race and sex) in employment.

Even more bizarre than the disparate-impact approach is the comparable-worth theory. The idea here is that it is wrong for jobs done mostly by men (construction workers, truck drivers) to pay more than jobs done mostly by women (secretaries, nurses). So, to correct this inequity of the marketplace, the government determines whether one job is of “comparable worth” to another, and require the wages to be the same. The Fairness Act includes one long section — the “Paycheck Fairness Act” — that embraces this theory and would get courts and bureaucrats involved in pushing it along.

There’s more — oh, much more. The Fairness Act:

— abolishes all limits on damage awards in federal employment-discrimination cases;

— makes it impossible for employers and employees to enter into arbitration contracts, even when it is often much to the advantage of each to do so (when they do, the lawyers get paid less, and we can’t have that);

— makes it easier to award attorney fees to plaintiffs’ lawyers in civil-rights lawsuits (see above);

— authorizes the National Labor Relations Board to award back pay to illegal immigrants (who, of course, aren’t supposed to be working here in the first place);

— makes it possible for courts to award expert-witness fees under eleven different federal statutes;

— makes it easier to sue federally funded programs for sexual harassment;

— makes it possible to get more money in lawsuits against state employers under the Age Discrimination in Employment Act, Fair Labor Standards Act, and the Uniformed Services Employment and Reemployment Rights Act of 1994; and

— allows private lawsuits to be brought under the Air Carrier Access Act.

The Fairness Act is not fair. It is, from beginning to end, a plaintiffs’-bar wish list. It enacts a vision that trumpets leveling and redistribution over merit and standards. It views civil-rights laws as a means of enforcing equality of results, not equality of opportunity. And it sees the lawsuit as the preferred means of achieving these ends, made possible by stacking the deck against businesses and made attractive to lawyers by guaranteeing their payday.