Suppose three law enforcement managers are making personnel decisions. One manager approves implementation of an employment standard requiring newly hired female officers to complete a 2-mile run in under 20 minutes. Newly hired male officers must complete the 2-mile run in under 18 1/2 minutes. These maximum times are based on research that indicates an equal quantum of fitness is shown by the different times for males and females because of physical differences between the sexes.

A second manager is making a promotional decision. Two equally qualified candidates, one white and one black, are competing for promotion to captain. In an effort to increase the number of minorities in the department's leadership ranks, the manager chooses the black candidate.

The third manager hopes to enhance the professionalism of the department. This manager elects to adopt a college degree requirement for newly hired police officers.

The Civil Rights Act of 1991, signed into law by President Bush on November 21, 1991, impacts on each of the decisions made by these law enforcement managers. This act amends prior employment discrimination law, primarily Title VII of the Civil Rights of 1964, and effectively overrules judicial interpretation of some key provisions of previous legislation.

The act clarifies the sort of conduct that constitutes intentional employment discrimination and presents, with the provision of new remedies and reallocation of burdens of proof, new challenges to employers who litigate claims of employment discrimination. This article discusses the impact of this legislation on law enforcement employers (1) and suggests steps these employers might take to ensure compliance with the new provisions.

Consideration of Forbidden Factors

Prior to the 1991 amendments, Title VII made it unlawful for an employer "... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual' s race, color, religion, sex, or national origin...." Nor could an employer "... limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin." (2) The U. S. Supreme Court described this prohibition as "... the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees." (3)

Nonetheless, the precise impact of this announcement was a matter of dispute prior to the 1991 amendment. For example, in Price Waterhouse v. Hopkins, (4) Hopkins, a former senior manager in the accounting firm, filed suit against Price Waterhouse alleging that it had, in its decision to deny her partnership, discriminated against her on the basis of her sex in violation of Title VII. Evidence presented by Hopkins showed that at the time it declined to make her a partner, Price Waterhouse had 662 partners, 7 of whom were women. Of 88 persons proposed for partnership that year, Hopkins was the sole female.

In the materials considered by Price Waterhouse in the partnership decision were a number of accolades for Hopkins indicating a considerable record of achievement as an employee of the firm. Also present were statements indicating that Hopkins, at times, had difficulty with other staff members and was sometimes abrupt and abrasive in these relations.

Included as well were comments indicative of sexual prejudice. One partner negatively characterized Hopkins as "macho." Another speculated that Hopkins "overcompensated for being a woman." A third suggested that she take "a course in charm school."

Furthermore, the messenger from the decisionmaking board, who told Hopkins that her candidacy had been placed on hold, made suggestions to improve her chances for future favorable consideration. …