Civil Rights Act of 1991
10 July 2006Civil Rights Act of 1991, 29 U.S.C. §§621 et seq.,
42 U.S.C. §§1981, 1989, 2000e et seq., and 12101 et seq.
Coverage and Prohibition: The Civil Rights Act of 1991 was originally described by its sponsors as legislation to overrule certain Supreme Court decisions dealing primarily with the scope of Section 1981 of the Civil Rights Act of 1866 (see above) and with various legal issues arising in litigation under Title VII of the Civil Rights Act of 1964 (“Title VII”) (see above). The final version went well beyond this purpose and also made a number of significant changes in the enforcement structure of these and several other federal antidiscrimination statutes. The Act amended Section 1981 so that it applies to all types of employment decisions or practices claimed to be racially biased, including discharges, discipline, unequal benefits, or claims of racial harassment, as well as refusals to hire or promote.
The Act amends the coverage of Title VII to make it unlawful, in connection with the selection of applicants for employment or promotion, to adjust the scores of, use different cutoff scores for, or alter the results of, employment related tests based on the race, color, religion, sex, or national origin of the test taker. This bars the practice of treating the test scores of minority applicants differently (i.e., “race norming”) in order to increase the pool of minority candidates. The Act also amends both Title VII and the Americans with Disabilities Act (see above) to cover U.S. citizens employed overseas by U.S. controlled companies unless that coverage would violate the law of the foreign country. The Act does not affect court-ordered remedies, affirmative action, or conciliation agreements that comply with the law.
Enforcement: The Act made a number of significant changes in legal principles governing the enforcement of federal antidiscrimination laws, particularly Title VII. Changes were made to ease the plaintiff’s burden of proof in two types of Title VII discrimination cases where the Supreme Court had imposed a more difficult burden.
First, the Act provides that in “disparate impact” cases unlawful discrimination is established if the employee shows (usually statistically) that a facially neutral practice (such as a test), or analytically inseparable group of practices, causes an unintended, adverse, disparate impact on a protected group. This discrimination will be found unless the employer proves that: (1) there is no causal connection between the practice and the statistical result; or (2) the practice is job-related and consistent with business necessity. Second, the Act provides that in “mixed motive” cases an employer violates Title VII by using an impermissible factor, such as race or sex, to make an employment decision. A violation will be found even if the employer proves that it would have made the same decision without considering the impermissible factor.
Finally, one of the Act’s most significant changes was the creation of the right to demand a jury trial in cases involving requests for damages.
Remedies: Prior to the Act, complainants could not seek monetary damages as a remedy. The Act permits monetary damages for intentional (not disparate treatment) discrimination against the disabled (under the Americans with Disabilities Act and the Rehabilitation Act of 1973). Additionally, Title VII plaintiffs whose claims are not covered by Section 1981 (generally, those claiming sex or religious discrimination) also may recover damages.
Employees proving intentional discrimination of the types described above may recover compensatory (e.g., pain, suffering, loss of enjoyment) and punitive damages in addition to the traditional remedies of back pay with interest, reinstatement, and other injunctive relief. Punitive damages are permissible when the employer is shown to have acted with malice or with reckless indifference to the rights of the employee.
The total amounts of compensatory and punitive damages awarded for each complainant are capped and may not exceed the following limitations:
Employer’s
Number of Employees Maximum Dollar Recovery
15 - 100 $50,000
101 - 200 $100,000
201 - 500 $200,000
Over 500 $300,000
These limitations do not apply to suits alleging race discrimination brought under Section 1981, or under both Section 1981 and Title VII. If an employee seeks compensatory or punitive damages, either party may demand a jury trial.
The Act also amended Title VII and the Civil Rights Attorney’s Fees Awards Act (42 U.S.C. §1988) to provide that reasonable expert witness fees may be included in the attorneys fees awarded to successful complainants under Title VII, Section 1981, or the new remedial provision dealing with intentional discrimination described above.
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