Biting questions, unreality in the desert, the lawyers' favorite legislation, and other matters. THE LAWYERS ARE SALIVATING

(FORTUNE Magazine) – We have bad news from Billcast: The Civil Rights Act of 1990 looks like a winner. Billcast, the legislative forecasting system admiringly described in these columns a while back (February 26), says one version of the bill (S.2104) has an 81% chance of passing the Senate and a 56% chance of passing the House. Being paid to make predictions and too shy to venture normative judgments, Billcast tells you nothing about the depraved thinking that went into the legislation in question, sponsored by Teddy Kennedy in the Senate and Gus Hawkins of California in the House, so that task devolves upon your servant. Teddy and Gus claim that their work is merely meant to restore certain civil rights allegedly erased by a series of Supreme Court decisions last year. In fact, Kennedy-Hawkins does far more than establish the status quo ante. If Congress passes it, and the President signs it (his intentions are murky at this writing), civil rights law will be more perverse than ever, which is saying a lot, and especially in two ways: First, civil rights will open up a vast new playground for lawyers. For the past quarter-century, most disputes about employment discrimination have been settled under laws -- including the Civil Rights Act of 1964 -- that effectively limited the employer's liability. If he was found guilty, the law required him to make the employee ''whole,'' which might involve rehiring and back pay. It did not, however, contemplate a right to jury trials and the all- too-attendant possibility of unlimited damage awards, mainly because Congress recognized in 1964 the potential these held for overwhelming the courts. Only plaintiffs alleging age discrimination have had the right to jury trials. ; The Civil Rights Act of 1990 changes all this. It gives every plaintiff a right to a jury trial, the right to damages for pain and suffering, and the additional right to punitive damages when victorious. If Kennedy-Hawkins passes, the lawyers of America will soon enough be telling the fired and unhired workers of America that they are piteous discriminatees entitled to pots of gold from the nearest jury. Our own favorite example of the potential in this area is supplied by a case last year in, of all places, Las Vegas. It seems the Las Vegas Hilton fired 37 blackjack dealers and other casino employees with whose performance it was not thrilled. The employees turned around and charged discrimination, and since some of them were talking about age discrimination, the 37 won the right to a federal jury trial. By the time their peers had rendered justice, the 37 had collectively won over $40 million from the house, $30 million of it in punitive damages. The second major change in Kennedy-Hawkins is more perverse. It would enormously increase the pressure for quotas. Under the old law, employers could not set standards that had an ''adverse impact'' on women or minorities unless the standards were justified by business necessity. Kennedy-Hawkins will make it easier for the plaintiffs to prove adverse impact. The real bad news, however, is the bill's insidious new definition of ''business necessity.'' In the past, this term has been construed by the Supreme Court to mean only that the employment standard had some logical relation to the job. Kennedy- Hawkins sneakily changes the rules. Where the standard had an adverse impact on women or minorities or veterans or the handicapped -- 70% of the labor force is now a ''protected class'' of one kind or another -- the new law would require proof that it was quite literally ''essential to effective job performance.'' Essential? What's essential? How do you prove that over-the-road truck drivers need an IQ of at least 85? Or that newspaper reporters need college degrees? Would the paper fold if the standard was abolished? Would any employer in his right mind argue the case before a jury? Or would he find it just a whole lot simpler to take the only road promising freedom from adverse- impact suits -- the road to more and larger quotas? Which is the road we are on, according to Billcast.