Software Club 210: Light Red/Club_Software_210_Light_Red_Micro_Star_1997.iso/sba/f128.sbe

Text File | 1997-01-01 | 5KB | 107 lines

@077 CHAP 5

               ┌──────────────────────────────┐
               │  CHANGING CIVIL RIGHTS LAWS  │
               └──────────────────────────────┘

The federal Civil Rights Act of 1991 (CRA91), which
immediately became effective upon enactment on November
29, 1991, is making life a lot more complicated for all
covered employers in the area of employment practices.

The new law's most controversial aspect is in the area of
"disparate impact" cases, where a company's employment
practices, although not shown to be intentionally
discriminatory, have a "disparate" (unequal) impact on
employment of protected groups.

For example, if a company is located in an area where 80%
of the population consists of Native Americans, but only 5%
of its employees are Native Americans, there may be grounds
for a "disparate impact" discrimination claim against the
employer, under prior civil rights law as well as these new
CRA91 provisions, regardless of employer intent.

The huge difference that CRA91 will make in these "disparate
impact" cases is that under prior law, the Supreme Court has
held that the burden of proof is upon the employees who
allege discrimination, to identify a particular business
practice of the employer that resulted in the disparity.
Under the new law, by contrast, the employees are relieved
of this burden of proof if they can simply show that the
employer failed to select an alternative employment practice
(such as hiring quotas) that would not have had a "disparate
impact" -- that is, that would not have had a negative
impact on the minority or other protected group.  Instead,
the burden of proof in these cases is now shifted to the
employer to show that the challenged employment practice
(regarding hiring, promotions, pay, or other aspects of
employment) is "job-related for the position in question
and consistent with business necessity" (whatever the
courts ultimately decide that means).

It is the vagueness of this part of the new civil rights
law that former President Bush initially expressed concerns
over, arguing that many firms would find it easier to
simply adopt minority hiring quotas than to attempt to prove
the "business necessity" defense in court.  Nevertheless,
he eventually signed the bill into law when it was passed
by Congress in 1991.

There are no easy answers as to what policy a company
should adopt to comply with this law, but it does
seem reasonably clear that the only safe way to avoid
discrimination suits under the new law may be to adopt some
sort of quota system, despite the issues of unfairness and
possible employee morale problems that the use of hiring
quotas sometimes entails.

CRA91 also considerably expands the monetary damages that
can be awarded in cases of intentional discrimination.
Before, an employer who lost such a discrimination suit was
usually liable only for back pay, front pay, lost benefits,
attorney's fees and court costs.  Now, under CRA91 (which
may even be retroactive in effect), compensatory damages
may also be allowed in addition to other monetary damages.
CRA91 also overrides a Supreme Court case that had limited
fees recoverable by a claimant for expert witness fees to
the flat $40 limit for "fact" witnesses.

In light of the foregoing changes in the Civil Rights Act
of 1991, the odds, as well as the costs, of losing a
discrimination action have been increased significantly for
employers, and the new rules will make it much more
attractive for plaintiffs to file such suits, both for
claims of intentional discrimination and in "disparate
impact" cases.  Employers are seeing a great many more
such claims being filed, as a result of the 1991 amendments.

@IF015xx]Thus, however fair you may feel your firm's employment
@IF015xx]practices are, your firm is big enough to be subject to the
@IF015xx]Civil Rights Act, so this may be a good time to consult an
@IF015xx]attorney familiar with employment discrimination matters
@IF015xx]to find out what, if any, steps you may need to take to
@IF015xx]protect your business from liability in this area, since the
@IF015xx]amount of such litigation is starting to expand considerably.
@IF015xx]Because your company has over 14 employees, almost all of the
@IF015xx]Civil Rights laws apply to @NAME.
@IF015xx]
@IF100xx]This includes EEO reporting requirements, since you have 100
@IF100xx]or more employees.
@IF100xx]
@IF014xx]NOTE:  Most of the foregoing problems don't apply to your
@IF014xx]business at present, since most of the Civil Rights laws do
@IF014xx]not apply to firms that have fewer than 15 employees, such
@IF014xx]as @NAME.
@IF014xx]
@IF001xx]You have only one employee, so with very limited exceptions,
@IF001xx](such as being a company with federal contracts), you don't
@IF001xx]have to worry much about Civil Rights regulations impacting
@IF001xx]your business.
@IF000xx]You have no employees, so the above discussion will only
@IF000xx]become relevant to you when your business expands and begins
@IF000xx]hiring employees.
@IF201xx]NOTE:  Any firm which has more than one employee (you have
@IF201xx]@EMP) is subject to the provisions of the Equal Pay Act.