Author:George Rutherglen

The last edition of this monograph analyzed two major pieces of legislation that profoundly changed the federal law of employment discrimination: the Americans with Disabilities Act of 1990 [1] and the Civil Rights Act of 1991.[2]

Both of these statutes responded to perceived deficiencies in existing law: the first, to the limited coverage of laws protecting the disabled, and the second, to accumulated judicial decisions that had generally restricted the scope and enforcement of previously enacted laws.

The current edition recounts no such landmark changes in the law. The developments of the last decade, mainly judicial decisions, have attempted to assimilate these earlier statutory changes into employment discrimination law and to take account of changes in other, related fields of law. No one of these judicial decisions, by itself, has signaled a decisive shift in employment discrimination law, but cumulatively they have confirmed several trends first evident in the legislation of the early 1990s. The law has evolved toward ever more intricate statutory provisions and correspondingly detailed judicial decisions. It has also relied increasingly on damages as a remedy for employment discrimination and therefore on tort principles to determine liability. Newer statutes have also shifted away from racial discrimination as the principal target of civil rights laws and toward discrimination on other grounds, such as disability. This introductory section places these developments in the context of previously enacted statutes.

The most important of these statutes is Title VII of the Civil Rights Act of 1964.[3]

Title VII is both the broadest federal statute that prohib Section 2000e-2(a) states:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employ its discrimination in employment and the model for many of the narrower statutes. Title VII generally prohibits discrimination in all aspects of employment on the basis of race, color, religion, sex, or national origin by employers, unions, employment agencies, and joint labor-management committees. Despite the breadth of its prohibitions, Title VII was the product of an arduous legislative struggle that led to important compromises in matters of both substance and procedure. These compromises were necessary to secure enactment of the Civil Rights Act of 1964, and in particular, to obtain the two-thirds majority then required to invoke cloture in the Senate.[4]

Because of the controversy surrounding Title VII, its legislative history consists primarily of debates on the floor of each house. In the Senate, the bill that eventually became the Civil...

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