COLUMN RIGHT : Democrats Do Real Harm to Spirit of 1964 : A generation ago, Congress banned hiring by race. Now preferential treatment is praised.

By TERRY EASTLAND

June 4, 1991 12 AM PT

<i> Terry Eastland is resident fellow at the Ethics and Public Policy Center and co-author of "Counting by Race": Equality From the Founding Fathers to Bakke and Weber."</i>

The least-reported aspect of this week’s legislative battle over employment discrimination is that House Democrats aim not simply to overturn a 1989 Supreme Court decision interpreting Title VII of the 1964 Civil Rights Act, but also to rewrite that landmark statute itself. Indeed, Title VII rejected what today’s Democrats now propose.

In passing Title VII, which created a right to equal employment opportunity, the 1964 Congress could have embraced the Democrats’ current theory of discrimination. The members were well aware of the Illinois case of Myart vs. Motorola, in which an employment test that was neutral and free of intentional discrimination, but which had a disparate impact upon minorities, had been struck down.

But the 1964 Congress rejected Motorola’s theory of so-called unintentional discrimination, instead outlawing only the purposeful kind. Thus, Title VII requires that for a violation of law to occur a court must find that the defendant has “intentionally engaged in or is intentionally engaged in an unlawful employment practice.” And the statute explicitly protects against the possibility of a Motorola case by stating that it is not an unlawful employment practice “to give and to act upon the results of any professionally developed ability test” that “is not designed, intended or used to discriminate because of race.”

The 1964 Congress also guarded against hiring by race. Title VII states that nothing in it “shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group” on account of racial imbalance in the workplace.

Today’s Democrats plainly differ. If they prevail, Title VII will be amended to include the statistical theory of discrimination, outlaw virtually all tests having a disparate impact upon minorities and legalize percentage hiring. The Bush Administration has agreed with the first of these purposes, which has been affirmed in Supreme Court decision but, wisely, not the second or the third.

The Democrats’ attack on testing--and therefore their departure from the protection Title VII originally gave tests--is indicated in its newfound animus against “within-group scoring,” known as “race-norming.” The Democrats understand that failure to oppose race-norming could have severe political costs. But for them, not only must the practice be eliminated but so too must any test that does not “validly and fairly” predict a person’s “ability to perform the job.” Meeting this requirement could prove so onerous and costly that few employers would bother; it would prove simpler to abandon tests altogether.

As for quotas, the Democrats would amend Title VII to make a quota an “unlawful employment practice.” But what is a quota? “A fixed number (their bill proposes) or percentage of persons of a particular race, color, religion, sex or national origin which must be attained or which cannot be exceeded regardless of whether such persons meet necessary qualifications to perform the job.”

Thus, an un fixed number is not a quota. Employers may hire and promote an unfixed number or percentage of officially preferred persons who meet only basic qualifications, and against this practice a non-preferred person with more-than-basic qualifications may not sue, at least not under Title VII.

The Democrats have defined quotas so strictly in order to approve the kind of preferential treatment that the original law outlawed--and that today is practiced in too many workplaces. And with the effective ban on almost all tests, employers would have even less choice than they now do in this matter of hiring and promoting by “unfixed numbers.”

Of the old (still on the books) Title VII, it is well to remind ourselves what then-Sen. Hubert H. Humphrey said in 1964: “(It) does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group.” Humphrey would have a horrible case of indigestion if he were served the pages of the new Title VII.

This week some Humphrey-like Democrat ought to do his party, and the nation, the favor of proposing a civil-rights bill framed according to the great principles of non-discrimination and non-preference found in the original Title VII. If no such Democrat is available, perhaps some Republican will perform this useful deed. The burden rests on Democrats who agitate for change in our civil-rights laws to explain why Title VII must be rewritten to sanction and encourage hiring and promoting by race and sex.