Civil Rights Act of 1991

Federal legislation that outlawed employment discrimination practices based on disparate impact

Date Signed on November 21, 1991

The Civil Rights Act of 1991 returned the burden of proof to employers to defend job practices challenged as discriminatory. The law left it to courts to determine what constituted “business necessity” when justifying portended discriminatory practices. The law also opened the way for challenges to affirmative action.

President George H. W. Bush signed the Civil Rights Act of 1991 on November 21, despite having vetoed similar legislation in 1990 for fear of creating too many inducements for hiring quotas. Invoking the undesirability of quotas, the U.S. Supreme Court had effectively undone disparate impact in Wards Cove Packing Company v. Atonio (1989).

Major Provisions

Title I of the 1991 Civil Rights Act prohibited unlawful employment practices based on disparate impact, in which a policy or practice seems neutral but has an adverse effect on a particular group. A complaining party could (1) show that use of a particular employment practice causes a disparate impact on the basis of race, color, religion, sex, or national origin and the employer failed to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity, or (2) identify an alternative employment practice that an employer refused to adopt. For example, recruitment through employee referrals would not be permitted if the majority of employees were white males and this practice resulted in the disproportionate hiring of white males. Race norming—the use of test scores, whether adjusted, with different cutoffs, or otherwise altered—was prohibited in connection with selection or referral of applicants or candidates for employment or promotion. Workers challenging a seniority system as discriminatory were permitted to wait until the adverse impact was felt to bring a lawsuit.

Title I also prohibited all racial discrimination in the making and enforcement of contracts. It provided the right of recovery of compensatory and punitive damages for unlawful intentional discrimination, including disability as specified in the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Title I capped compensatory and punitive damages, varying by company size, and permitted jury trials.

Title II of the Civil Rights Act, known as the Glass Ceiling Act of 1991, addressed the underrepresentation of women and of minorities in management and decision-making positions in business. It established the Glass Ceiling Commission to study how businesses fill management and decision-making positions, the practices used to foster the necessary qualifications for advancement into those positions, and the compensation programs and reward structures used in workplaces.

Title III, known as the Government Employee Rights Act of 1991, provided procedures to protect the right of Senate and related government employees, regarding their public employment, to be free of discrimination on the basis of race, color, religion, sex, national origin, age, or disability. The act also extended procedures for judicial review and related protections to previously exempt state employees.

Impact

Workplace and harassment discrimination cases brought to the Equal Employment Opportunity Commission (EEOC) mushroomed throughout the 1990’s. Sexual harassment claims exceeded ten thousand every year from 1992 onward. Sex discrimination cases exceeded twenty-one thousand cases every year, accounting for 30 percent of all charge filings in the decade, second only to approximately twenty-nine thousand race discrimination annual filings (38 percent). Further, class-action suits, which had declined in number from eighty-one in 1985 to twenty-five in 1992, increased to seventy-five in 1996. Women as a percentage of officials and managers in the private sector rose by about one-half a percentage point each year throughout the 1990’s, from a low of 29.3 percent in 1990 to a decade high of 34.5 percent by 1999.

In 1995, the Regents of the University of California adopted a resolution to end the university’s preferential treatment of disadvantaged ethnic groups in hiring and in school admissions. In the November, 1996 elections, 55 percent of voters in California approved Proposition 209, which eliminated preferential treatment of any job candidate on the basis of race, sex, color, ethnicity, or national origin in state government hiring, public school admissions, and public contracting. The ban took effect in 1997 after the U.S. Court of Appeals for the Ninth Circuit denied attempts to prevent implementation. The U.S. Supreme Court declined to hear challenges to Proposition 209.

Most Supreme Court employment discrimination cases throughout the decade involved women and older persons. In Harris v. Forklift Systems, Inc. (1993), the Court held that to be actionable as “abusive work environment,” conduct need not seriously affect an employee’s psychological well-being or lead the plaintiff to suffer injury. In Landgraf v. USI Film Products et al. (1994), the Court ruled against retroactively applying the Civil Rights Act of 1991. In Romer v. Evans (1996), the Supreme Court struck down Amendment 2 of Colorado’s state constitution, which forbade the extension of official protections to those who experience discrimination on the basis of their sexual orientation. In O’Connor v. Consolidated Coin Caterers Corp. (1996), the Court held that a discharged worker need not show that he or she was replaced by another person under age forty to establish a prima facie case of discrimination under the Age Discrimination in Employment Act of 1967. In Oncale v. Sundowner Offshore Services (1998), the Court ruled that sex discrimination consisting of same-sex harassment is actionable under Title VII of the Civil Rights Act of 1964. In both Sutton v. United Airlines, Inc. (1999) and Murphy v. United Parcel Service, Inc. (1999), the Supreme Court held that a determination of disability under the Americans with Disabilities Act must consider whether a person was substantially limited in a major life activity when using a mitigating measure, such as eyeglasses where the alleged disability is sight.

Subsequent Events

In Grutter v. Bollinger et al. (2003), the Supreme Court affirmed consideration of race in admissions by the University of Michigan’s Law School. Justice Sandra Day O’Connor also expressed her hope that the use of racial preferences would no longer be necessary within twenty-five years.

Bibliography

Fowler, W. Gary, Donald W. Jackson, and James W. Riddlesperger. “Symbolic Politics Revisited: The Bush Administration and the Civil Rights Act of 1991.” Contributions in Political Science 396 (2004): 183-202. Reviews the political and social pressures on George H. W. Bush’s administration to support the act in 1991 despite the veto in 1990.

Shull, Steven A. A Kinder, Gentler Racism? The Reagan-Bush Civil Rights Legacy. Armonk, N.Y.: M. E. Sharpe, 1993. Contends that George H. W. Bush continued and heightened President Ronald Reagan’s efforts to cut back on federal protection of civil rights.

Skrentny, John David. The Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago: University of Chicago Press, 1996. Provides a historical account of the development of affirmative action.

Weiss, Donald H. Fair, Square, and Legal: Safe Hiring, Managing, and Firing Practices to Keep You and Your Company Out of Court. 4th ed. New York: AMACOM, 2004. Provides information aimed at helping employers comply with civil rights laws by avoiding sex discrimination in hiring, sex discrimination and sexual harassment of employees, and mismanagement of older employees and employees with disabilities.