What to Expect from the Civil Rights Act

Article excerpt

President Bush opposed new civil rights legislation successfully for almost three years, because such legislation, he argued, would lead to "quotas." He finally relented in November 1991 and approved the Civil Rights Act of 1991 (CRA '91).

Bush caved in when it became apparent that, if he tried once again to block such legislation, he would be vulnerable to criticism that he was insensitive to the legitimate concerns of women--an issue that figured prominently in Judge Clarence Thomas' Supreme Court confirmation hearing--and that George Bush, David Duke, and the Republican party were in favor of bias and discrimination against minorities and women. Another factor contributing to Bush's decision was that many Republicans who had previously stood with the President on this issue told Bush they no longer could afford to do so in an election year.

When the legislation finally passed both houses and was sent to the President, most members of Congress were relieved. Interest groups on both sides of the civil rights issue expressed reservations about CRA '91, but conceded that it probably was the best piece of legislation that could be enacted in the present environment. Jack Brooks, chairman of the House Judiciary Committee, remarked, "I didn't think we'd ever get it done."

John Lewis (D-Georgia), a civil rights activist, said after the bill was passed, "It isn't perfect, it isn't a panacea, but it is a step in the right direction."

David K. Rehr, a lobbyist for the National Federation of Independent Businesses (NFIB), a small business group, said, "In our view, this isn't a grand compromise," indicating NFIB's continued opposition to the bill. Rehr did however concede that "They've (Congress) come a long way from last year" when the provisions of the civil rights bill were far more harsh on employers.

The Civil Rights Act of 1991 reverses seven U.S. Supreme Court decisions and creates rights to compensatory and punitive damages, as well as a jury trial, for victims of intentional discrimination as defined by Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA). Most experts are of the opinion that CRA '91 will increase litigation concerning hiring, firing, promotion and such on-the-job behavior as sexual harassment, because some discrimination charges are now easier to prove, and more lucrative damage awards are now possible.

Ellen Vargyas, a senior counsel at the National Women's Law Center, points out that similar predictions were made when the Civil Rights Act of 1964 was passed. A study commissioned by the National Women's Law Center, however, identified only three civil rights cases decided during the '80s in which race bias awards for punitive and compensatory damages exceeded $200,000.

The Employment Policy Foundation, a pro-management group, in a study of civil rights awards between 1985 and 1990, found the average award was $128,000, well below the limits established by CRA '91 for compensatory and punitive damages for victims of sexual harassment, religious and ethnic discrimination, or discrimination based on disability.

A major impact of the new legislation is its reversal of the Supreme Court decision in the 1989 case of Wards Cove Packing Co. v. Antonio. Before the 1989 Wards Cove ruling, federal courts applied the criteria established in Griggs v. Duke Power Company in determining whether an employer unintentionally discriminated against employees. Unintentional discrimination cases typically involve such practices as requiring job applicants to have a high school diploma or to be able to lift a specified weight, which appear to be non-discriminatory or neutral on their face but have a disparate impact on members of certain groups. Such employment practices seem fair because they're applied consistently to all applicants or employees, but their effect is to eliminate from consideration or adversely affect the employment opportunities of a disproportionate number of minorities, women or members of other groups that are protected by the Civil Rights Act of 1964. …