Antidiscrimination Legislation (Update 2b)

• Author: Robert A. Sedler
• Pages: 100-101

Page 100

Racial and gender EMPLOYMENT DISCRIMINATION has been a major factor in producing a condition of racial and gender inequality in the United States. Congress made a strong national commitment to bringing an end to racial and gender employment discrimination by the enactment of Title VII of the CIVIL RIGHTS ACT OF 1964. In the first two decades of its operation, the Supreme Court interpreted Title VII expansively in order to accomplish Congress's remedial purpose. The Court held that Title VII not only prohibited intentional discrimination, but also prohibited employment practices that were neutral in form, but that had a "disparate impact" on the employment opportunities of racial minorities and women. Under the rule of GRIGGS V. DUKE POWER COMPANY (1971), whenever an employment practice had such an impact, it violated Title VII unless the employer could show that the practice was justified by "business necessity." At the same time the Court held that because the underlying purpose of Title VII was to increase employment opportunities for racial minorities and women in areas from which they had traditionally been excluded, Title VII permitted employers to give express preference to racial minorities and women in hiring and promotions?that is, AFFIRMATIVE ACTION?where minorities or women were manifestly underrepresented in a traditionally segregated job category of the employer's workforce. Under UNITED STEELWORKERS OF AMERICA V. WEBER (1979) and JOHNSON V. TRANSPORTATION AGENCY (1987), such preferences must be reasonable and must not "unfairly trammel" the interests of white or male employees.

In its 1988?1989 term, the Court rendered a series of decisions that were widely perceived as making it more difficult for racial minorities and women to establish Title VII discrimination claims against employers, particularly in regard to "disparate impact" claims. Congress responded by enacting the CIVIL RIGHTS ACT OF 1991, which overruled aspects of all these decisions, and added other provisions that expanded significantly the protections against employment discrimination afforded by federal law. In regard to "disparate impact" claims for example, the 1991 act provides that employment practices having an identifiable "disparate impact" are prohibited unless the employer can establish that the challenged practice "is job-related for the position in question and consistent with business necessity." At the same time...