101st Congress, 2d Session Senate Document 101-35

VETO—S. 2104

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

RETURNING

WITHOUT MY APPROVAL S. 2104, THE CIVIL RIGHTS ACT OF 1990

O c t o b er 22, 1990.—Ordered to be printed

49-011

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1990
To the Senate of the United States:

I am today returning without my approval S. 2104, the “Civil 

Rights Act of 1990.” I deeply regret having to take this action with 

respect to a bill bearing such a title, especially since it contains 

certain provisions that I strongly endorse.

Discrimination, whether on the basis of race, national origin, sex, 

religion, or disability, is worse than wrong. It is a fundamental evil 

that tears at the fabric of our society, and one that all Americans 

should and must oppose. That requires rigorous enforcement of existing antidiscrimination laws. It also requires vigorously promoting new measures such as this year's Americans with Disabilities 

Act, which for the first time adequately protects persons with disabilities against invidious discrimination.

One step that the Congress can take to fight discrimination right 

now is to act promptly on the civil rights bill that I transmitted on 

October 20, 1990. This accomplishes the stated purpose of S. 2104 in 

strengthening our Nation’s laws against employment discrimination. Indeed, this bill contains several important provisions that 

are similar to provisions in S. 2104:

Both shift the burden of proof to the employer on the issue 

of “business necessity” in disparate impact cases.

Both create expanded protections against on-the-job racial 

discrimination by extending 42 U.S.C. 1981 to the performance 

as well as the making of contracts.

Both expand the right to challenge discriminatory seniority 

systems by providing that suit may be brought when they 

cause harm to plaintiffs.

Both have provisions creating new monetary remedies for 

the victims of practices such as sexual harassment. (The Administration bill allows equitable awards up to $150,000.00 

under this new monetary provision, in addition to existing 

remedies under Title VII.)

Both have provisions ensuring that employers can be held 

liable if invidious discrimination was a motivating factor in an 

employment decision.

Both provide for plaintiffs in civil rights cases to receive 

expert witness fees under the same standards that apply to attorneys fees.

Both provide that the Federal Government, when it is a defendant under Title VII, will have the same obligation to pay 

interest to compensate for delay in payment as a nonpublic 

party. The filing period in such actions is also lengthened.

Both contain a provision encouraging the use of alternative 

dispute resolution mechanisms.

The congressional majority and I are on common ground regarding 

these important provisions. Disputes about other, controversial proCD
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visions in S. 2104 should not be allowed to impede the enactment of 

these proposals.

Along with the significant similarities between my Administration's bill and S. 2104, however, there are crucial differences. Despite the use of the term “civil rights" in the title of S. 2104, the 

bill actually employs a maze of highly legalistic language to introduce the destructive force of quotas into our Nation's employment 

system. Primarily through provisions governing cases in which employment practices are alleged to have unintentionally caused the 

disproportionate exclusion of members of certain groups, S. 2104 

creates powerful incentives for employers to adopt hiring and promotion quotas. These incentives are created by the bill's new and 

very technical rules of litigation, which will make it difficult for 

employers to defend legitimate employment practices. In many 

cases, a defense against unfounded allegations will be impossible. 

Among other problems, the plaintiff often need not even show that 

any of the employer's practices caused a significant statistical disparity. In other cases, the employer's defense is confined to an 

unduly narrow definition of “business necessity" that is significantly more restrictive than that established by the Supreme Court in 

Griggs and in two decades of subsequent decisions. Thus, unable to 

defend legitimate practices in court, employers will be driven to 

adopt quotas in order to avoid liability.

Proponents of S. 2104 assert that it is needed to overturn the Supreme Court's Wards Cove decision and restore the law that had 

existed since the Griggs case in 1971. S. 2104, however, does not in 

fact codify Griggs or the Court's subsequent decisions prior to 

Wards Cove. Instead, S. 2104 engages in a sweeping rewrite of two 

decades of Supreme Court jurisprudence, using language that appears in no decision of the Court and that is contrary to principles 

acknowledged even by Justice Stevens' dissent in Wards Cove: “The 

opinion in Griggs made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid 

business purpose."

I am aware of the dispute among lawyers about the proper interpretation of certain critical language used in this portion of S. 

2104. The very fact of this dispute suggests that the bill is not codifying the law developed by the Supreme Court in Griggs and subsequent cases. This debate, moreover, is a sure sign that S. 2104 will 

lead to years—perhaps decades—of uncertainty and expensive litigation. It is neither fair nor sensible to give the employers of our 

country a difficult choice between using quotas and seeking a clarification of the law through costly and very risky litigation.

S. 2104 contains several other unacceptable provisions as well. 

One section unfairly closes the courts, in many instances, to individuals victimized by agreements, to which they were not a party, 

involving the use of quotas. Another section radically alters the remedial provisions in Title VII of the Civil Rights Act of 1964, replacing measures designed to foster conciliation and settlement 

with a new scheme modeled on a tort system widely acknowledged 

to be in a state of crisis. The bill also contains a number of provisions that will create unnecessary and inappropriate incentives for 

litigation. These include unfair retroactivity rules; attorneys fee 

provisions that will discourage settlements; unreasonable new stat­
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utes of limitation; and a “rule of construction" that will make it 

extremely difficult to know how courts can be expected to apply 

the law. In order to assist the Congress regarding legislation in this 

area, I enclose herewith a memorandum from the Attorney General explaining in detail the defects that make S. 2104 unacceptable.

Our goal and our promise has been equal opportunity and equal 

protection under the law. That is a bedrock principle from which 

we cannot retreat. The temptation to support a bill—any bill— 

simply because its title includes the words “civil rights" is very 

strong. This impulse is not entirely bad. Presumptions have too 

often run the other way, and our Nation's history on racial questions cautions against complacency. But when our efforts, however 

well intentioned, result in quotas, equal opportunity is not advanced but thwarted. The very commitment to justice and equality 

that is offered as the reason why this bill should be signed requires 

me to veto it.

Again, I urge the Congress to act on my legislation before adjournment. In order truly to enhance equal opportunity, however, 

the Congress must also take action in several related areas. The 

elimination of employment discrimination is a vital element in 

achieving the American dream, but it is not enough. The absence 

of discrimination will have little concrete meaning unless jobs are 

available and the members of all groups have the skills and education needed to qualify for those jobs. Nor can we expect that our 

young people will work hard to prepare for the future if they grow 

up in a climate of violence, drugs, and hopelessness.

In order to address these problems, attention must be given to 

measures that promote accountability, and parental choice in the 

schools; that strengthen the fight against violent criminals and 

drug dealers in our inner cities; and that help combat poverty and 

inadequate housing. We need initiatives that will empower individual Americans and enable them to reclaim control of their lives, 

thus helping to make our country's promise of opportunity a reality for all. Enactment of such initiatives, along with my Administration's civil rights bill, will achieve real advances for the cause of 

equal opportunity.

George Bush.

The White House, October 22, 1990.

[Memorandum for the President]

Office of the Attorney General,

Washington, DC, October 22, 1990.

S. 2104, the Civil Rights Act of 1990

This memorandum sets forth my views, and those of the Department of Justice, on S. 2104, the “Civil Rights Act of 1990." Although the bill contains some provisions that we both would like to 

see become law, S. 2104 is fatally flawed.

On May 17, 1990, in a Rose Garden speech marking the reauthorization of the Civil Rights Commission, you outlined the principles 

that would guide the approach of your Administration to civil 

rights legislation. You stated that: (1) civil rights legislation must