Speech #1010179501

Rule 301. specifically. with respect to the burden of persuasion and production. and that we not rely upon a definition of disparate impact to establish an unfair labor practice and unlawful employinent practice. The reason is very simply that the present language. whether it is intended to do so or not. inescapably will have the effect of driving employers. and particularly small employers. to the defensive tactic of hiring by quota and engaging In manifest unfairness. They will do so in much the same way that we feared small employers would engage in discriminatory hiring in order to avoid sanctions under the employer sanction provisions of the Immigration Reform and Control Act. In that case. we were troubled by the prospect of the employer being faced with two job applicants. of whom one might look and sound foreign. even though a United States citizen. What we feared was that the employer. in order to avoid the chance of being prosecuted. would hire someone who did not look or sound foreign. for fear that he otherwise would find himself at least under Investigation. and perhaps being prosecuted. for having hired an illegal alien. Indeed. we were so concerned about It that the author of the underlying bill authored an amendment to the Immigration Reform and Control Act in which I joined him as a cosponsor. his amendment sought to determine after a certain period of time whether or not the Immigration and Control Act had brought about defensive discriminatory practices by small employers seeking to avoid the acts employer sanctions. In much the same way. we need to be concerned that employers. and particularly small employers without the resources to defend themselves In court against Federal prosecution in a civil rights case. will seek to avoid prosecution by the defensive mechanism of hiring by quota. They will say. "Who need It?