Bias in Rules of Procedure

Once again, racial preferences can pop up in places where you would least expect them. Many of the articles in this series have dealt with the "big three" in the hierarchy of racial preferences, namely contract set-asides, employment and admissions preferences, and direct taxpayer financed subsidies.

But as the following article demonstrates, there are off-beat types of racial preference that are more difficult to characterize.

The excerpts below deal with special privileges that have been created for favored races and their lawyers through anti- discrimination law.

Ordinarily, those who initiate a lawsuit ("plaintiffs") in our system must be able to prove facts that enable them to recover. However, if you are of a non-European racial group and you are suing for discrimination, the fact of your race and the fact that you were not hired or were terminated shifts the burden of proof to the European-American defendant. The defendant must prove that he didn't discriminate.

Members of non-European racial groups and their lawyers can file a suit with no evidence at all of discrimination and then take advantage of "civil discovery" to rummage around in the employer's records.

Even if no direct evidence of discrimination against the particular plaintiff is found, evidence of any sort of statistical disparity in hiring will be sufficient to force the suit to go through an expensive trial. Almost any claim of discrimination, no matter how baseless, has economic value. Employers almost always will pay something to settle the case.

These different procedural rules applicable to civil rights cases amount to a kind of hidden "diversity tax" levied on employers, and passed on the consumers in the form of higher prices.

But the greatest advantage of this type of racial preference is the ease with which it can be hidden from public view.

Once again, it is the great herd of European-American, freeway commuting taxpayers that get hit with the cost. Because, once again, to use Willie Sutton's phrase, that is where the money is!

In the excerpt below, you will see that Senator Orrin Hatch has placed some provisions in the legal reform bill to reverse these preferences. Naturally, the non-European racial lobbies went ballistic.

The right to collect money from others under special lenient rules has considerable value.

Yggdrasil-

April 21, 1995 Wall Street Journal B5

Civil Rights Groups Fear Fast Senate Step

By MARGARET A. JACOBS

Staff Reporter of THE WALL STREET JOURNAL.

Civil-rights groups fear that, when the Senate takes up legislation to overhaul product-liability lawsuits next week, Republicans will try to attach proposals that will undermine most antidiscrimination suits.

The groups, including the National Association for the Advancement of Colored People, the Lawyers Committee for Civil Rights and other public-interest organizations, are particularly alarmed by a bill introduced earlier this month by Sen. Orrin Hatch (R., Utah), chairman of the Senate Judiciary Committee. They say they believe Sen. Hatch's proposal - which would affect all civil cases brought in federal courts, and many in state courts-would effectively make the cost and risk of bringing lawsuits for race, sex or age discrimination prohibitive to all but the wealthy. In addition, the proposal would also significantly curb employee actions under federal whistleblower, pension and other laws, they say.

The groups fear that they haven't had time to coordinate and counter lobbying by business groups in its favor. "This is very, very troublesome," says Edward Haile, counsel for the NAACP, which is just beginning to mobilize grassroots opposition. "To the extent that the [Hatch] bill will broadly limit access to the courts for the poor and racial minorities, it makes our battle over affirmative action seem really minimal," he adds.

* * *

"While it has become something of a cliche to state that one proposal or another would set this country back 30 years or more," in the case of Sen. Hatch's bill "it is literally true," says Barry D. Roseman of the National Employment Lawyers Association, a group that primarily represents employees in discrimination actions.

* * *

Specifically, the Hatch bill would preclude punitive damages in all but the rarest circumstances, in part because it would require a plaintiff to prove that an employer or other defendant actually intended the discrimination or other misconduct to continue, or acted recklessly in not taking action to prevent it. In certain circumstances, it may also cap punitive damages at $250,000.

In addition, before even being allowed to ask for punitive damages in a complaint, the plaintiff would have to prove at a costly, separate hearing that he is likely to receive them at trial. There would be extra hurdles if another employee- in an earlier suit not necessarily even related to the current one - failed to win punitive damages. The hurdles would include extensive fact-finding about the earlier case.

The Hatch bill also includes a "loser pays" provision that would effectively reverse two Supreme Court decisions that require plaintiffs in discrimination cases to pay the defendant's attorneys fees only if the claim was found to be "frivolous or - groundless." The provision would require any winning plaintiff to pay the attorneys' fees of the defendant if the judgment at trial was even $1 less than a rejected settlement.

Further, the proposal would prevent an injured person from collecting full damages from those only partly responsible. While eliminating what is known as "joint and several liability" apparently would apply only to personal-injury cases, lawyers who represent employees fear this would encourage employers to try to avoid large damage awards by building their defense against a harassment charge by placing most of the blame on an individual manager or worker - who might not be able to afford to pay any award.

Public-interest groups also fear that claims would be chilled by a provision calling for mandatory sanctions on lawyers who bring suits considered "frivolous, groundless and vexatious." Many discrimination suits could fall into that category, because the complaints tend to be general until plaintiffs are given access to employer records in pretrial fact-finding, the lawyers say. * * *


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