Civil Rights Act of 1991
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The Civil Rights Act of 1991 is a United States statute that was passed in response to a series of United States Supreme Court decisions limiting the rights of employees who had sued their employers for discrimination. The Act represented the first effort since the passage of the Civil Rights Act of 1964[1] to modify some of the basic procedural and substantive rights provided by federal law in employment discrimination cases: it provided for the right to trial by jury on discrimination claims and introduced the possibility of emotional distress damages, while limiting the amount that a jury could award.
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[edit] Predecessors of the Act
The 1991 Act combined elements from two different civil rights acts of the past: the Civil Rights Act of 1866[2], better known by the number assigned to it in the codification of federal laws as "Section 1981", and the employment-related provisions of the Civil Rights Act of 1964, generally referred to as "Title VII", its location within the Act. The two statutes, passed nearly a century apart, approached the issue of employment discrimination very differently: Section 1981 prohibited only discrimination based on race or color, while Title VII also prohibited discrimination on the basis of sex, religion and national origin. Section 1981, which had lain dormant and unenforced for a century after its passage, allowed plaintiffs to seek compensatory damages and trial by jury; Title VII, passed in the 1960s when it was assumed that Southern juries could not render a fair verdict, allowed only trial by the court and provided for only traditional equitable remedies: backpay, reinstatement and injunctions against future acts of discrimination. By the time the 1991 Act was passed both allowed for an award of attorneys fees.
[edit] Impetus for the Act
Congress had amended Title VII once before, in 1972, when it broadened the coverage of the Act. It was moved to overhaul Title VII in 1991 and to harmonize it with Section 1981 jurisprudence, by a series of Supreme Court decisions:
- Patterson v. McLean Credit Union, , which held that an employee could not sue for damages caused by racial harassment on the job, because even if the employer's conduct were discriminatory, the employer had not denied the employee the "same right . . . to make and enforce contracts . . . as is enjoyed by white citizens," the language that Congress chose when passing the law in 1866.
- Wards Cove Packing Co. v. Atonio, , which made it more difficult for employees to prove that an employer's personnel practices, neutral on their face, had an unlawful disparate impact on them by requiring that they identify the particular policy or requirement that allegedly produced inequalities in the workplace and show that it, in isolation, had this effect.
- Price Waterhouse v. Hopkins, , which held that the burden of proof shifted, once an employee had proved that an unlawful consideration had played a part in the employer's personnel decision, to the employer to prove that it would have made the same decision if it had not been motivated by that unlawful factor, but that such proof by the employer would constitute a complete defense for the employer.
- Martin v. Wilks, , which permitted white firefighters who had not been party to the litigation establishing a consent decree governing hiring and promotion of black firefighters in the Birmingham, Alabama Fire Department to bring suit to challenge the decree.
Each of these decisions proved controversial.
In addition, electoral politics played a part in the passage of the law. President Bush had vetoed a similar bill the year before. However, with a presidential election only a year away and the candidacy of David Duke, an avowed white nationalist who had run for United States Senate from Louisiana in 1990 on the Republican ticket, making the Republican Party sensitive to claims of racism, Bush signed a slightly watered down version of the bill in 1991.
[edit] Changes made by the Act
The Patterson case had attracted much criticism since it appeared to leave employees who had been victimized by racial harassment on the job with no effective remedies, as they could not prove a violation of Section 1981 and could rarely show any wage losses that they could recover under Title VII. In addition, the Court's narrow reading of the phrase "make or enforce contracts" also eliminated any liability under Section 1981 for lost promotions and most other personnel decisions that did not constitute either a refusal to hire or a discharge on the basis of race or color.
Congress addressed this issue by redefining the phrase "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship". Congress also clarified that Section 1981 applied to both governmental and private discrimination, the issue that the Supreme Court originally announced it would decide in Patterson, but never reached.
Congress also believed that the Wards Cove case made it too difficult to prove disparate impact claims under Title VII. It therefore amended the Act to provide that an employee could prove his or her case under this approach by showing either that an individual practice or group of practices resulted in "a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity". Congress added, however, that "[t]he mere existence of a statistical imbalance in an employer's workforce on account of race, color, religion, sex, or national origin is not alone sufficient to establish a prima facie case of disparate impact violation."
While the majority in Congress supported the burden-shifting rule in Price Waterhouse, it was uncomfortable with an employer's ability to use proof that it would have made the same decision in any event as a complete defense in a case in which it had been shown that race or gender or another unlawful factor played a significant role in its decision. Congress amended the Act to provide that the employer's proof that it would have made the same decision in any case was a defense to backpay, reinstatement and other remedies, but not to liability per see. The practical effect of this change was to allow a party that proved that the employer discriminated, but could not show that it made any practical difference in the outcome, could still recover attorney's fees after showing that the employer discriminated, even if no other remedy was awarded.
Finally, Congress limited the rights of non-parties to attack consent decrees by barring any challenges by parties who knew or should have known of the decree or who were adequately represented by the original parties.
The Court also authorizes jury trials on Title VII claims and allows Title VII plaintiffs to recover emotional distress and punitive damages, while imposing caps on such relief under both Title VII and Section 1981. The 1991 Act also made technical changes affecting the length of time allowed to challenge unlawful seniority provisions, to sue the federal government for discrimination and to bring age discrimination claims, while allowing successful plaintiffs to recover expert witness fees as part of an award of attorney's fees and to collect interest on any judgment against the federal government.
