[Congressional Record Volume 142, Number 103 (Friday, July 12, 1996)]
[Extensions of Remarks]
[Page E1269]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             INTRODUCING THE WORKPLACE FAIRNESS ACT OF 1996

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                         HON. BRIAN P. BILBRAY

                             of california

                    in the house of representatives

                        Thursday, July 11, 1996

  Mr. BILBRAY. Mr. Speaker, the Civil Rights Act of 1964, the Age 
Discrimination in Employment Act, and the Americans with Disabilities 
Act prohibit discrimination in employment because of race, color, 
religion, sex, national origin, age, and disability. I believe that we 
must begin to explore ways to look beyond the traditional model of 
combatting discrimination, which is currently accomplished by 
protecting a class or category of people. Instead, we must begin to 
pass laws which protect the individual from discrimination. A person's 
singular worth and merit should be the yardstick we measure by, rather 
than a person's behavior or characteristics which attach them to a 
group. If we predicate discrimination law on distinctions between 
groups or categories, we negate the original intention of protecting 
against discrimination itself.
  Therefore, I am introducing the Workplace Fairness Act of 1996, which 
will effectively prohibit discrimination on any basis other than an 
employee's individual merit. Instead of continuing a piecemeal approach 
to discrimination law by adding special categories to those now 
protected under title VII of the Civil Rights Act, my legislation 
ensures that the only factors which employers may consider are those 
pertaining to job performance. While this may be considered a radical 
approach to employment law, it is only fair that all employees are duly 
protected under the law, and not subject to being fired for arbitrary 
reasons. Without a legislative remedy such as this, Congress is going 
to be faced with the dilemma of adding special categories to those 
already protected under title VII of the Civil Rights Act, every time 
it is believed that a certain class is being unjustly treated. This is 
no laughing matter, Mr. Speaker, but will left-handed people be added 
to the list next? What about red-headed people? Under current law, such 
cases could indeed be made. Let us consider the logical evolution and 
consequence of this approach.
  Specifically, the Workplace Fairness Act prohibits discrimination in 
a blanket fashion, rather than establishing newly protected classes in 
addition to those which already exist. It does so by establishing that 
employers shall not subject any employee to different standards or 
treatment in connection with employment or employment opportunities on 
any basis other than that of factors pertaining to job performance. My 
legislation defines factors pertaining to job performance, which 
include employment history, ability and willingness to comply with 
performance requirements--including attendance and procedures--of the 
job in question, educational background, drug and alcohol use which may 
adversely affect job performance, criminal records, and conflicts of 
interest.
  The Workplace Fairness Act establishes that merit is the sole 
criterion for consideration in job applications or interviews, hiring 
decisions, advancement, compensation, job training, or any other term, 
condition or privilege of employment. Additionally, those currently 
protected under title VII of the Civil Rights Act will still be able to 
seek redress upon enactment of the Workplace Fairness Act, as my 
legislation avails existing title VII remedies to any individual 
discriminated against under my bill. My legislation also exempts 
religious organizations, prohibits the establishment of quotas on any 
basis other than factors pertaining to job performance, and 
specifically does not invalidate or limit the rights, remedies or 
procedures available under any other existing Federal, State, or local 
law to persons claiming discrimination.
  Under the Workplace Fairness Act, employers and employees will still 
be allowed to enter into an alternate dispute resolution agreed upon 
before the term of employment begins, just as under current law. 
Further, the existing Federal statute in rule 11 of the Federal Rule of 
Civil Procedure states that if a frivolous lawsuit is filed by the 
plaintiff, the employee or prospective employee, than the court may 
rule that the plaintiff may pay the legal expenses of the defendant--
the employer. Additionally, rule 68 of the Federal Rule of Civil 
Procedure is enforced in civil rights cases such as those that would be 
brought about under the Workplace Fairness Act. Rule 68 states that the 
fee burden can be shifted from the employer to the employee, if the 
employee files a frivolous claim, or if the employer is found to not be 
at fault.
  While my legislation will clarify once and for all the civil rights 
of all Americans, it still gives employers adequate flexibility in 
determining who they wish to hire, and ensures that they provide just 
cause for termination that is unrelated to job performance. 
Discrimination law should mirror the goal which it is intended to 
embody. Our laws should reflect a standard governed by individual 
merit, not by an individual's relation to a defined group. The image of 
a discrimination-free society is undermined by a society whose laws 
supercede the value of those they are intended to protect: the 
individual. I urge my colleagues to cosponsor my legislation, and build 
upon our past successes by creating a new model to combat 
discrimination in America.

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