Antidiscrimination Legislation (Update 2a)

• Author: Richard A. Epstein
• Pages: 99-100

Page 99

The major piece of recent antidiscrimination legislation is the CIVIL RIGHTS ACT OF 1991. (The AMERICANS WITH DISABILITY ACT OF 1990 is outside the scope of this comment.) The 1991 act was passed chiefly in response to the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio (1989). That decision undercut the disparate impact theories of discrimination (that is, those which look at the outcome of certain practices without regard to the employer's intention) that had been read into Title VII of the original CIVIL RIGHTS ACT OF 1964 in the Court's earlier decision in GRIGGS V. DUKE POWER COMPANY (1971). Wards Cove appeared to overturn the Griggs rule that employers could only escape disparate impact liability by showing a business necessity for a given practice. Wards Cove then allowed the employer to meet the lower standard of "reasonable business justification," transferring the burden of proof to the employee.

Wards Cove provoked a strong reaction from supporters of Title VII, who, after much negotiation and compromise, regained lost ground with the 1991 act. There Congress first found that Wards Cove "weakened the scope and effectiveness of Federal civil rights protections." In response, Congress added section 803(k)(1)(A) to the 1964 Civil Rights Act which provides that "a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." The 1991 act thus restores, perhaps in its entirety, the law on disparate impact as it was generally understood prior to Wards Cove, by reintroducing the notion of business necessity and by providing that both the burden of production and the burden of persuasion rest on the employer.

One issue left open by the 1991 act was the retroactive application of the 1991 act. That question was important because Wards Cove left in limbo disparate impact cases that were pending when the case was decided. If the 1991 act had applied retroactively, then employees in pending cases could have taken advantage of the 1991 act's provisions that allowed for compensatory and PUNITIVE DAMAGES provisions in a jury trial. These provisions represent a departure from Congress's decision in 1964 to ban punitive damages, cap...