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@077 CHAP 5
┌──────────────────────────────┐
│ NEW CIVIL RIGHTS LAWS │
└──────────────────────────────┘
The new federal Civil Rights Act of 1991 (CRA91), which immediately
became effective upon enactment on November 29, 1991, is certain to
make life a lot more complicated for all covered employers in the area
of employment practices.
The new law's most controversial aspect will be in the "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
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. There are no easy answers as to what policy a company
should adopt in this regard, 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 em-
ployer 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 can now expect a
great many more such claims to be filed, as a result. Thus,
however fair you may feel your firm's employment practices are,
if your firm is large enough (15 or more employees, generally)
to be subject to the Civil Rights Act, this may be a good
time to consult an attorney who is familiar with employment
discrimination matters to find out what, if any, steps you may
need to take to protect your business from liability in this
area, since the amount of such litigation is going to expand
significantly.