In the late 1980's and early 1990's, civil rights activists and litigants experienced mounting frustration over the ineffectiveness of Title VII in achieving its goals. The frustration focused on the inadequacy of existing remedies to realize the twin goals of compensation of victims and deterrence of discrimination, and on the Court's recent decisions narrowing the protections of the Act. The Civil Rights Act of 1991, like the original enactment, illustrates the workings of the crucible of political compromise essential to mustering majority support for civil rights legislation. It also highlights the relationship between the Court and Congress in interpreting Title VII. As Justice Blackmun commented in reflecting on the Court's decision in United Steelworkers v. Weber, an early affirmative action case, "And if the Court has misperceived the political will, it has the assurance that because the question is statutory Congress may set a different course if it so chooses." (1)After the 1988 Supreme Court term there was a general feeling among civil rights groups, women's groups, and plaintiffs' lawyers, that the Court had seriously "misperceived the political will" and Congress quickly began the process of setting a different course.
Sweeping amendments, including unlimited compensatory damages, were initially proposed in 1990 and generated significant public controversy and legislative debate. President Bush vetoed the act as passed by Congress in 1990, characterizing it as a bill that would force employers to establish hiring quotas to ward off litigation. After the veto, the civil rights community attempted to negotiate compromise language with major corporate business coalitions, and on Capitol Hill, Republicans and Democrats seeking veto-proof legislation that would avoid the label "quota bill" offered several compromise amendments. Senator Danforth and others offered up a bill in September 1991 that was placed directly on the Senate calendar rather than going through the normal process of committee scrutiny, and with some changes it was passed by both houses and then signed by the President on November 21, 1991. The President said in his signing statement that, "[t]his historic legislation strengthens the barriers and sanctions against employment discrimination" and that "[s]ince the Civil Rights Act was enacted in 1964, our Nation has made great progress toward the elimination of employment discrimination." He expressed the hope and expectation that "this legislation will carry that progress further."
Although the 1991 proposed amendments responded to seven Supreme Court decisions, two received the most attention – Wards Cove Packing Co. v. Atonio and Price Waterhouse v. Hopkins. In Wards Cove, the Court had reformulated the standards and burdens of proof for a disparate impact claim, making it more difficult for plaintiffs to prevail. In Price Waterhouse, the Court held that even when a plaintiff proves that an adverse decision was made for discriminatory reasons, the employer can escape liability by proving it would have made the same decision even if it had not been motivated by discriminatory animus. The amendments responded to these two decisions by codifying the disparate impact theory of discrimination as originally articulated in the Griggs v. Duke Power decision, and clarifying that whenever a plaintiff in a "mixed-motive" case proves that discrimination motivated an employment decision, she has established a violation of Title VII. In such cases, employers can only avoid some forms of relief, but not liability, if they can prove they would have made the same decision even without the discriminatory animus.
The most significant change effected by the Civil Rights Act of 1991 was the addition of compensatory and punitive damages to the panoply of remedies available to victims of intentional discrimination. The damages have caps calibrated to the size of the employer. With the new availability of damages, Title VII cases also became eligible for trial by juries because the Seventh Amendment mandates the availability of jury trials whenever damages may be awarded. The impetus for adding damages to the remedies available did not derive from a Supreme Court decision, but from the long-standing belief that, for certain discrimination plaintiffs, existing remedies were simply inadequate. An example commonly discussed during the debates on the Civil Rights Act was the victim of a hostile work environment who, unless driven from the workplace by the intolerable conditions, could expect only injunctive relief and attorneys fees at the conclusion of a successful challenge to the harassment. It was thought that such limited remedies would not inspire people to stand up for their right to be free from harassment. The floor debates on the damages provision in the Civil Rights Act are replete with comments about the importance of providing appropriate remedies to victims of sexual harassment, and many supporters of the damages provision said their support derived from this concern. Another identified reason for adding damages to Title VII was the disparity in treatment of relief under Title VII and section 1981, which had long provided compensatory and punitive damages for victims of race discrimination.
In part because of the controversy surrounding this legislation and the speed with which the compromise was adopted, there is very little legislative history explaining what Congress intended to accomplish, and that, of course has meant that there are many questions for the courts to resolve. The first question left unresolved by Congress was whether the new damages were to be available in cases challenging discrimination that occurred before passage of the Civil Rights Act. The Supreme Court decided in 1994 that such retroactive application was not warranted absent a clear expression by Congress that it intended that outcome. The disparate impact provision of the Civil Rights Act, which generated so much controversy because of the assumption that it made the statute a "quota bill" has received very little attention in the courts, perhaps because litigants are more inclined to pursue claims of intentional discrimination where damages are available if violations can be proven. The congressional response to the Price Waterhouse case led the lower courts to assume that the new rule – that liability attaches when discrimination is shown to have motivated a decision and the burden shifts to the defendant to avoid damages by proving it would have made the same decision anyway–only applies when the plaintiff has "direct" evidence of discrimination. In 2003, in Desert Palace v. Costa, the Court unanimously rejected this misreading of the statute, and held that there is no heightened evidentiary requirement to establish a "mixed-motive" violation of Title VII.
(1) 443 U.S. 193, 216 (Blackmun, J., concurring).
This page was last modified on June 24, 2004.
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