The Civil Rights Act of 1991: Expanding Remedies in Employment Discrimination Cases
| Publication year | 1992 |
| Pages | 881 |
| Citation | Vol. 21 No. 5 Pg. 881 |
1992, May, Pg. 881. The Civil Rights Act of 1991: Expanding Remedies in Employment Discrimination Cases
President Bush signed into law the Civil Rights Act of 1991 ("Act")(fn1) on November 21, 1991, ending a two-year struggle with Congress. The motivation for the 1991 legislation was to reverse five U.S. Supreme Court decisions handed down in 1989. The decisions were perceived by many as unfavorable to those seeking relief from employment bias. The legislation, which also reversed two decisions from the 1991 Supreme Court term, sends a clear congressional message that the Supreme Court's views on civil rights are not as expansive as those on Capitol Hill.
The key provisions of the Act permit:
1) Compensatory and punitive damages---previously available only to racial and ethnic minorities---for victims of intentional discrimination based on sex, religion or disability. Such damages are capped depending on the size of the employer's workforce.
2) Jury trials where a plaintiff claims compensatory or punitive damages.
3) An easing of the burden of proof in disparate impact cases.
4) An expansion of the coverage of Title 42 U.S.C. § 1981 ("§ 1981") to include claims of racial discrimination in the form of on-the-job harassment and discharge.(fn2)
In addition, the Act spells out the legal standard for mixed motive cases, clarifies when consent decrees may be challenged, extends the coverage of TitleVII of the Civil Rights Act of 1964 ("Title VII")(fn3) to protect U.S. citizens working abroad for U.S. employers, specifies the starting point of Title VII's charge-filing period for challenging discriminatory seniority systems, bars the adjustment or "race norming" of test scores, and authorizes recovery of expert fees in certain cases. This article reviews the major provisions of the Act that affect employment discrimination cases.
Perhaps the most significant provision of the Act expands the remedies for victims of intentional discrimination based on sex, religion or disability. Under Title VII, victims of discrimination have been limited in the past to recovering equitable relief: generally lost back pay and benefits.(fn4) As a result, workers who were not discharged or denied a job could recover no damages; Title VII did not permit recovery of damages such as for emotional distress or punitive damages.(fn5) Likewise, the Rehabilitation Act of 1973 ("Rehabilitation Act")(fn6) provided no such relief for discrimination against the disabled and the Americans With Disabilities Act of 1990 ("ADA"),(fn7) scheduled to take effect for most employers on July 26, 1992, limited recovery to the equitable relief permitted by Title VII.(fn8) By contrast, victims of race discrimination could recover compensatory and punitive damages under § 1981, the post-Civil War statute prohibiting
However, the Civil Rights Act amends Title VII, the Rehabilitation Act and the ADA to permit victims of intentional discrimination on the basis of sex, religion or disability to recover compensatory and punitive damages and to demand a jury trial.(fn9) Such damages are not recoverable in cases involving unintentional discrimination due to the disparate impact of neutral employment practices, job standards or criteria.(fn10) Likewise, such damages are not recoverable by a plaintiff who can recover under § 1981.(fn11) The Act does not address whether a plaintiff, who has let the statute of limitations under § 1981 expire, may claim compensatory and punitive damages under the Act.
Compensatory damages include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses.(fn12) Back pay, interest on back pay and other types of equitable relief authorized by Title VII are excluded from the definition of compensatory damage, but are still available to a prevailing plaintiff.(fn13)
Plaintiffs may recover punitive damages (unless they sue a government, governmental agency or political subdivision), if they show that the employer acted with malice or reckless indifference to the employee's federally protected rights.(fn14) The Act limits recovery of compensatory and punitive damages, according to the size of the employer, as follows:
The Act apparently imposes no limit on compensatory damages for past pecuniary losses. Damages under § 1981 for racial discrimination are not restricted. The Act instructs that a court should not inform the jury of the limitations listed above.(fn16)
Plaintiffs alleging intentional discrimination on the basis of disability for failure to provide reasonable accommodation under the Rehabilitation Act or the ADA may be limited in their recovery. The plaintiff may recover no compensatory or punitive damages if the employer shows good faith efforts, in consultation with the person with the disability, to identify and make available reasonable accommodations that would have provided an equally effective opportunity and would not have caused undue hardship on the employer.(fn17)
In Patterson v. McLean Credit Union,(fn18) a black teller and file coordinator who had worked for a credit union for ten years sued her employer under § 1981 for race discrimination, alleging she had been harassed on the job, denied a promotion and then discharged. The U.S. Supreme Court, with Justice Kennedy writing for the majority, held that § 1981 forbids discrimination in hiring and certain promotions, but that racial harassment in the course of employment is not actionable under the statute.(fn19) Since Patterson, the Tenth Circuit has held that § 1981 does not cover claims for discriminatory discharge.(fn20) However, the Act reverses Patterson and its progeny by permitting claims for racial discrimination in the making, performance, modification and termination of employment contracts, as well as the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.(fn21) It is not clear whether the statute covers claims for retaliation.
Before Patterson, employees had found it to their advantage to sue under § 1981 for racial discrimination because that statute, unlike Title VII, permitted them to recover for compensatory and punitive damages. Suits for racial discrimination under § 1981 will continue to be favored, because such damages are not available under Title VII to employees who can recover under § 1981 and damages under § 1981 are not capped.(fn22) There will be a disparity between damage awards possible for racial and ethnic claims as compared to claims argued by women. This disparity is already the subject of much criticism, but will remain unless the caps are lifted. A bill has been introduced in the Senate (S.B. 2053) to do just that.
One of the most controversial sections of the Act is § 105, which overrules Wards Cove Packing Co., Inc. v. Atonio.(fn23) In Wards Cove, a class of non-white cannery employees filed suit under Title VII, alleging that their employer's hiring and promotion practices were responsible for work force segregation. The unskilled jobs were filled predominantly by non-whites and the skilled jobs were filled predominantly by whites. The workers claimed the practices denied them employment as skilled workers on the basis of race.
In Wards Cove, the U.S. Supreme Court established a proof scheme that made it difficult for employees to prove that neutral employment practices or standards had an unintentional but unlawful impact on women and minorities. The Court held that to prevail in such "disparate impact" cases, plaintiffs must identify specific employment practices that cause a statistical imbalance in the workplace.(fn24) Plaintiffs could not merely point to a statistical imbalance between the number of minorities in the employer's cannery and the number in non-cannery, skilled jobs to prove their case; rather, they had to show an imbalance by comparing the number of qualified minorities in the job market with those in skilled jobs.(fn25) Once the plaintiffs showed a specific practice caused a relevant statistical imbalance, the employer had to produce evidence that the practice had a legitimate business reason behind it. However, the employer did not have to show that the employment practice was essential or necessary, as pre-Wards Cove cases had required. The employee retained the burden of proof throughout.(fn26)
The Act leaves untouched the portion of Wards Cove spelling out the statistical standards in disparate impact cases. Moreover, the Act requires plaintiffs to continue to identify particular practices of an employer that cause a disparate impact, unless they can show that the employer's decision-making method is not capable of separation. In such cases, the decision-making process may be analyzed as one employment practice.(fn27)
However, the Act does return to pre-Wards Cove law governing the burden of proof in disparate impact cases. Once an employee demonstrates that an employer uses a particular practice that causes a disparate impact, the employer must show that the "challenged practice is job related for the position in question and consistent with business...
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