The Civil Rights Act of 1991: From Conciliation to Litigation- How Congress Delegates Lawmaking to the Courts

• Author: Major Charles E. Henricz
• Pages: 01

1. Introduction

In OUT demommy, there w M last word, M closed isme 0'

final resolution. There is only the wzl word, a new twist or nuance, plan m ideo which displaces OUT colle~tizle unde'standing of wkat is the mmand establuhes a newstandard in its place. 1

Nearly thirty years have passed since the civil nghts movement of the 1860s brought Americans "equal employment opportunity" through Title VI1 remedies far employment discrimination based onrace, color, religion, sex, and national origin.2 This promise of race and gender neutrality in employment has evolved with societal

*Judge Advocate General's Corps, United Stater Amy. Currently BIslgned

e.!

Instructor, Admmirmtwe and Civil Law Dlvlmon. The Judge Advocate Generals Sehool, Uluted Stater Amy This mlcle 1s bared on a. wntten diaertarian that the author iubmltted to %ausfy, In part. the Mpster of Lewo degee requirements for the llsi Judae Advocate Officer Graduate CourselMlehael E Sohrne h James L Waker T h N m Wold C o w ~ ~ z o n o i RqDonsetoSu~CourlSfalufDIyDenBi-. 6 5 h i ~

L REV 426(18821

expectations and has became better defined UI over a quarter century of application. In the 1991 amendment to Title VIl,3 however, Congress has radically altered the evoiutmn of employment discnmi-nation law and thrust on the courts the task of fostering Its iii-conceived creation

The original intent of Titie VI1 was to remedy personal injustice caused by individual acts of disparate treatment-particulaily for blacks.' It was hailed as the "Magna Carta" for black Amenca; mclw smn of sex discrimination in Titie VII was actually a laat moment attempt to defeat the bill m voting.s In an address to a joint session of Congress, President Johnson proclaimed, "Their cause must be our cause, too. Because it's not just Negroes, but it's really all of us who must overcome the clippiing legacy of bigotry and injustice And, we shall overcome.''B

The Civil Rights Act of 1964 (1064 Act) created a new commis-mn,the Equal Employment Opportunity Commission (EEOC). with broad powers and responsibilities for administration and enforcement of the new laws.' The 1964 Act required an ameved individual to negotiate a series of administrative hurdles beginning with the

SCivdRlghfsAefof 1881, Pub.L No 102-166, l06Stat 107i(i991)(codifledaJ mended m scattered semuns of 28 US C. and 42 U S C j

'See B h n a ~ n ~

L SCeLEi & Pill ORollMAV, EMPLmMEhT DISCRrYI\.ITION LAW 2 IZd ed 1984)(citmgS Rep Yo 91-1137, SlrtCong 2dSeu 411970))("1n 1864. empbs ment discnrninatian tended ro be viewed BJ a aeries of isolated and lndlrlingulPhable events, for rhe most part due Lo 111 will on the pan of =me identifiable individual or organization 'I In Gnw Y Duke Power Co . 401 LS 424. 428-30 (1871). Chief Jvmce Burger irate for the Coun that "Illhe objective of Congress in the enactment of Title VI1 18 plain from the language of the statute It w a ~

Io achieve equality of emoloyment omartunitlei and remove barnen that haw Owrated ~n the ~ i u t to

opponents of the Act ' I

15 18651

"Prendenr Lyndan Barnes Johnson. Address to B Joint J ~ S I ~ O ~ of Can~ess

(Mar

'Civil Rights Act of 1964. 55 701-713 (codified at 42 U 5 C $9 2000e-4- 2000e-12 11888))

filing of a "charge" with the EEOC within thirty days of the aiieged discriminatory act.8 The EEOC thenwas allowed 180 days to Lnvesti-gate and resolve the charges, during which the charging party could not bring suit.* An aggrieved person who was not satisfied with the EEOC resolution could file suit only after 180 days had passed, pravided that the filing was within ninety days of the EEOC "right to sue" letter lo

The Supreme Court extrapolated an the individual rights contained in Title VI1 to recognize p u p rights through a "disparate mpact" theory of discrimination. In Griggs u. Duke POWM Co. ,11 the Court recognned that certain "practices, procedures, or te8ts neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory practices." This concept became known as "disparate impact" for its disproportionate effect on a recognized minority without intentional discrimination. After years of refinements by the Court, Congess has codified the GTiggs model of disparate impact analysis, with a few twists, in the Civil Rights Act of 1991 (1991 Act).12

lzClvd Rlghts Act of 1891 5 106 (coddled at 42 US C. 5 2OOOe-Z(kXIj (1882)). me iTd7fro Jectlon 111 (additional drscussionl Congesional BCLLO~ to "restore' the disparate impact law was prompted by the Coun's decman In Ward8 Cove Packing Cov Atonia, 490 U S 642 (18891. Some commentators beheve that Congesa apecifieally rwected SOUP theories of Llabllity, such e.6 disparate mpacl. when n enacted Tltle VI1 See, e I, HEWAh BEU, E W A L ~

Tn*~smnum A Q ~ ~ r n r C ~ h ~ r u ~ u

OF AFFIMATIIE

AmAllAmi% Amoh 17 (18811 ("The Civil Rights Am of 1964 we.6 intended to esfabhih color-blind equal emplayment oppoII~Mythrough a combination of volunfan corn-plianee. agency ~~n~dlafmn.and judicld enforcement In e1vU lingation of the per-

Until 1978, the Supreme Court consistently held that the phrase "equal employment opportunity" was to be read literally. It interpreted the law as intending "to eliminate ail practices which operate to disadvantage the employment opportunities of any group protected by Titie VII, including Ca~casians."'~

In a series of dew sions beginning with the monumental case of Regents of University of Caltfornia 1-.. Balike,l4 the Court abandoned its "color-blind" analysis under Titie VI1 and interpreted the law as ailawing the mi-unlaw adoption of programs that provided advantages to specific minorities This policy of "affirmative action'' has never been incorporated into Title V11, and Its continued validity under the 1991 Act is questionabk'j

The addition of soup protection by disparate impact analysis and creation of voluntaw affirmative action programs constituted radical changes to Title VI1 analysis that eventually became widely accepted and generally understood. The 1991 Act contains, how-ever, B more fundamental, yet not specifically articulated, change in employment discrimination theow-the transformation from an admimstranve system of remediation to a litigation-oriented cause of action for damages. One of "the most basic and far-reaching" of the 1964 Act's provisions was the emphasis on empioyer-employee conciliation that was manifested by the law's restrictions on litigation and by enforcement by the EEOC The 1991 Act shifts the emphasis of Title VI1 from conciliation with equitable remedies to litigatmn with tort.like damage awards. Congress made this left turn from the freeway of fundamental civil rights theory without provid-ing a clear indication of direction or even a likely destination. The burden of navigating therefore falls on the already overburdened courts.

The Civil Rights Act of 1991 was an eiecnon-year politicai compromise between a beleaguered Republican White House and a Dem-ocratically controlled Con@ess.l7 Congress passed the Civil Rights Act af 1990 (1990 Act), which was intended to ''restore'' the law in

19931six specific Supreme Court cases decided in the 1088 term. When it failed to muster the votes to overnde President Hush's veto of the 1990 Act,L* Congress reconsidered a shghtly modified version of the 1000 Act in 1091.20

The controversy surrounding the Clarence Thomas Supreme Court confirmation debate and hearings caused the Hush Admmmstration to become far more amenable to compromise.z~ Members of Congress who had extended and embarrassed themselves in the hearings also were looking for an opportumty for redemptmn.22 Thesame members of Congress and the Administration who had closed their eyes and minds to a case of sexual harassment by a proposed Supreme Court Justice now were scrambling to establish greater protections far victims of such haras~ment.~~

Frenzied negotiations culminated m what many call the "Anita Hili Civil Rights Act of

IBH R 4000, S 2104, lOlst Cow., 26 Sess (19901 The ~ a e i me Psffemm Y

YeLean Credit Union, 481 C S. 164 (19881 (construmg 42 US C. 5 1081 not to ewer on-the-job racial har-mentl. Wards Cave PacklngCo v Atoruo, +so u s 642 (IBBsl (placing the burden of proof 00 piamtiff m a disparate-impact clam under htle VI1 to shorn lack Of busine- necessirsl. Price Waterhause V. Hopkmr. 490 U.S. 228 (1889) (shlftmg burdens of proof and llmltlng llablllty in mued.rnotwe clam UnderTifle \TI) hrance v A T.&I Technologes, 1°C 480 U S BOO (18881 (detenang ~cemsl oh

Tltie VIi setion agamst allegedly unlawful iemonfy ssiternl, Manin v Wllki 490 U S766 (18891 (permntmg collateral attack agalnst B consent decree 'ontaht4 an affa-mafive Betion plan) and Independent Fedn of Flight Attendants V. 2lpes 481 U.S754 (18881 (fmdmg inteNenOls not Unbie for Bttorneys' fees in Title VI1 B&], The I890 Act also would have reversed 01 rnodlfled several other Supreme court dew Elms SeeSteven R Greenbergel ClvllR~ghtsondLheAIl~t~sfS~hltorylnterpniation.62U.CoLo.L.REl 37&n ll(lB9ll(toralof lOcaJesaffeetedbsl99GAct)

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