Civil Rights Act of 1991 - Changes Made By The Act

Changes Made By The Act

The Patterson case had attracted much criticism since it appeared to leave employees who had been victimized by racial harassment on the job with no effective remedies, as they could not prove a violation of Section 1981 and could rarely show any wage losses that they could recover under Title VII. In addition, the Court's narrow reading of the phrase "make or enforce contracts" also eliminated any liability under Section 1981 for lost promotions and most other personnel decisions that did not constitute either a refusal to hire or a discharge on the basis of race or color.

Congress addressed this issue by redefining the phrase "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship". Congress also clarified that Section 1981 applied to both governmental and private discrimination, the issue that the Supreme Court originally announced it would decide in Patterson, but never reached.

Congress also believed that the Wards Cove case made it too difficult to prove disparate impact claims under Title VII. It therefore amended the Act to provide that an employee could prove his or her case under this approach by showing either that an individual practice or group of practices resulted in "a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such practice is required by business necessity". Congress added, however, that "he mere existence of a statistical imbalance in an employer's workforce on account of race, color, religion, sex, or national origin is not alone sufficient to establish a prima facie case of disparate impact violation."

While the majority in Congress supported the burden-shifting rule in Price Waterhouse, it was uncomfortable with an employer's ability to use proof that it would have made the same decision in any event as a complete defense in a case in which it had been shown that race or gender or another unlawful factor played a significant role in its decision. Congress amended the Act to provide that the employer's proof that it would have made the same decision in any case was a defense to backpay, reinstatement and other remedies, but not to liability per se. The practical effect of this change was to allow a party that proved that the employer discriminated, but could not show that it made any practical difference in the outcome, could still recover attorney's fees after showing that the employer discriminated, even if no other remedy was awarded.

Finally, Congress limited the rights of non-parties to attack consent decrees by barring any challenges by parties who knew or should have known of the decree or who were adequately represented by the original parties.

The Court also authorizes jury trials on Title VII claims and allows Title VII plaintiffs to recover emotional distress and punitive damages, while imposing caps on such relief under Title VII. The 1991 Act also made technical changes affecting the length of time allowed to challenge unlawful seniority provisions, to sue the federal government for discrimination and to bring age discrimination claims, while allowing successful plaintiffs to recover expert witness fees as part of an award of attorney's fees and to collect interest on any judgment against the federal government.