Civil Rights Act of 1991

Civil Rights Act of 1991The Civil Rights Act of 1991 is compromise legislation passed after a heated two-year political struggle and ambitiously amended Title VII of the Civil Rights Act of 1964 (referred to as “Title VII”); the Americans with Disabilities Act of 1990; Section 1981 of the Civil Rights Act of 1866 (referred to as “Section 1981”); the Attorney’s Fees Award Act of 1976; and the Age Discrimination in Employment Act of 1967 (ADEA). President George H. W. Bush had vetoed an earlier version of the bill in 1990, based on what he perceived to be its encouragement of quota-based hiring.

However, the struggle continued, and after the much-publicized Clarence Thomas confirmation hearings in the summer of 1991, the president signed a newly passed Civil Rights Act of 1991. In large part, the act counters a succession of seven significant Supreme Court decisions that had made it more difficult for employees to prove discrimination and provides for compensatory and punitive damages in cases of intentional discrimination.

Prior to the passage of the Civil Rights Act of 1991, the Supreme Court had reached several decisions involving employment discrimination, five of them in 1989 alone. The act was intended to address these rulings. One such ruling was the 1989 decision of Wards Cove Packing Co. v. Antonio, involving a claim of disparate impact, which until this time had existed only by judicial creation. In Wards Cove, the Supreme Court held that the plaintiff employee has the burden of proving both that the challenged practice disproportionately affects a protected group and that the employer does not have any legitimate business justification for the practice at issue. If the plaintiff is unable to prove that the challenged practice does not have any legitimate business purpose, he or she can still prevail by proving that there are alternatives to the practice that did not have a disparate impact. This test places the whole burden on the plaintiff and proved very difficult for a plaintiff to meet.

The Civil Rights Act of 1991 reversed a portion of the Wards Cove decision by codifying the disparate-impact claim and shifting some of the burden to the employer. Once the plaintiff establishes that the challenged practice has a disparate impact on a protected group, the burden of proof shifts to the employer to prove that the practice is justified by business necessity. The act clarifies that the employer must demonstrate that the challenged practice is “job-related for the position in question and consistent with business necessity.” Neither job-related nor business necessity is defined by the act.

These definitions, or lack thereof, were at the heart of the controversy that had surrounded earlier versions of the Civil Rights Act. Previous versions had included a definition of “job-related” that required a much closer relationship between the challenged practice and the job in question than the loose “any legitimate business objective” standard that existed under Wards Cove. Opponents of the 1991 act believed that the combined effect of shifting the burden to the employer and requiring a high degree of relatedness between the challenged practice and the job at issue would force employers to adopt quotas in order to avoid litigation under the disparate-impact theory. The enacted version of the act thus does not include any definition of “job-related,” leaving the issue undecided. On the other hand, the act does decide that an employee who cannot pinpoint a particular practice that caused the disparate impact but can demonstrate that the “elements of a respondent’s decision making process are not capable of separation for analysis” can challenge the whole process as one practice, a method not permitted under Wards Cove.

The passage of the Civil Rights Act of 1991 also clarified what had been a hotbed of confusion: the mixed-motive claim of intentional discrimination. In the 1989 Supreme Court case Price Waterhouse v. Hopkins, the Court held that an employee is prohibited from recovering in cases where he or she alleges that the employer had both legitimate and discriminatory reasons for its challenged practice if the employer demonstrates that it would have made the same decision for nondiscriminatory reasons. Under the Civil Rights Act of 1991, it is unlawful if the protected characteristic was a “motivating factor” in the employer’s decision, even if the employer would have made the same decision based solely on a legitimate business decision. However, if the employer does demonstrate that he or she would have made the same decision, the employee is not entitled to damages and can receive only declaratory relief, attorney’s fees, and costs of the action.

On the subject of damages, the Civil Rights Act of 1991 provided that for the first time, employees who could successfully prove intentional employment discrimination under Title VII could be awarded with monetary damages and could seek a trial by jury. A plaintiff can recover compensatory damages, and if the employer has acted “with malice or reckless disregard” for the plaintiff’s rights, that person can also recover punitive damages. The act caps the amount of total damages at a rate dependent on the number of employees, ranging from $50,000 for a company of 15 to 100 employees to $300,000 for a company with more than 500 employees.

The Civil Rights Act of 1991 contains several other significant provisions, including applying Title VII to employees working abroad for American companies; prohibiting the use of “race norming,” or adjusting test scores based on a protected characteristic; and extending the statute of limitations for certain cases under Title VII and the ADEA. The act also allows unhappy employees to challenge prior-consent decrees entered to remedy discriminatory conduct only if they had not received prior notice that the settlement would hurt their interests; permits successful plaintiffs in Title VII and Section 1981 claims to recover expert fees and attorney’s fees; and applies Section 1981 to racial discrimination in all phases of the contractual relationship, not just hiring decisions as previously held. Finally, the act creates the Glass Ceiling Commission, to study the barriers to the advancement of women and minorities, and the EEOC’s Technical Assistance Training Institute to assist in the implementation of the act. The Civil Rights Act of 1991 is a sweeping legislation that, even with its ambiguity, reduces the obstacles to establishing discrimination and provides disincentives to employers for violation of the rights of their employees.

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References:

  1. Oyer, P. and Schaeffer, S. 2002. “Sorting, Quota, and the Civil Rights Act of 1991: Who Hires When It’s Hard to Fire?” Journal of Law and Economics 45(1):41.
  2. Piskorski, T. J. and Warner, M. A. 1992. “The Civil Rights Act of 1991: Overview and Analysis.” The Labor Lawyer 8(1):9.
  3. Richey, C. 2004. Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts. Eagen, MN: West.