The Civil Rights Act of 1964 (CRA 1964) is a landmark piece of legislation that created the legal basis for nondiscrimination in housing, education, public accommodations, federally assisted programs, and employment. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on an individual’s race, color, religion, sex, or ethnic origin. This prohibition applies to a wide range of employment actions, including hiring, promotion, training, compensation, disciplinary actions, discharging of employees, and other actions pertaining to the “terms, conditions, or privileges of employment” as set forth in the act. Title VII also makes it unlawful for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII; filing a discrimination charge; or testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. The act generally applies to all employers with 15 or more employees; the U.S. government, however, is the most notable exception (federal employees are protected from discrimination by other legislation).
Title VII is the single most influential fair employment law in the United States. It is credited with improving the availability of meaningful employment opportunities for women and minorities and reducing the wage disparities these groups historically experienced. With the passage of Title VII, employers could no longer make biased employment decisions with impunity. The legal obligations imposed on employers by Title VII—and the greatly increased threat of employment litigation—prompted employers to reconsider their employment practices and, in many instances, make changes that were improvements from a behavioral science perspective (e.g., greater efforts to use criteria with demonstrable job-relatedness).
Since its enactment, Title VII has been amended several times. The most far-reaching amendments were made by the Civil Rights Act of 1991 (CRA 1991). The following sections discuss Title VII and its interpretation by the courts, both before and after the 1991 amendments.
The CRA 1991 was enacted in response to a series of U.S. Supreme Court decisions that were widely viewed as adversely affecting victims of employment discrimination. In addition to making far-reaching amendments to Title VII, the CRA 1991 also amended aspects of the Americans With Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), and the Civil Rights Act of 1866 (CRA 1866).
Extended Coverage of Fair Employment Laws
The CRA 1991 broadened the coverage of U.S. fair employment laws in two ways. First, it extended the application of Title VII and the ADA to U.S. citizens working abroad for U.S.-based employers. This provision reversed the Supreme Court’s 1991 decision in EEOC v. Arabian American Oil Co., which held that Title VII does not apply outside the United States. Second, the CRA 1991 extended the application of all major federal fair employment laws (e.g., Title VII, the ADA, and the ADEA) to previously unprotected Senate employees, allowing them to redress employment discrimination claims through an internal procedure and a limited right of appeal in federal court (employees in the House of Representatives were already covered).
Required Proof in Employment Discrimination Cases
Title VII, the ADA, and the ADEA all recognize two basic theories of discrimination: disparate treatment and disparate impact. The CRA 1991 includes several provisions that either reversed or codified Supreme Court decisions regarding procedural and evidentiary requirements in these two distinct types of cases.
Disparate Impact Cases
Disparate impact discrimination claims involve employer policies or practices that appear neutral on their face but have a substantially greater negative impact on a group that is protected by fair employment legislation (e.g., gender, race, age, disability) when put into effect. For example, although an employer’s use of height requirements in its hiring decisions appears to be race neutral on its face, the requirement was found to have a substantially greater impact in screening out Hispanic and Asian job applicants because those two groups tend to be shorter than White applicants.
The Supreme Court’s 1989 decision in Wards Cove Packing Co. v. Atonio made it significantly more difficult for plaintiffs to prove disparate impact by holding that it is not enough for a plaintiff to show there is a racial, ethnic, or gender imbalance in the employer’s workforce; rather, the plaintiff must identify the specific policy or requirement that produced the disparate impact. For example, a plaintiff could not merely show that significantly fewer women hold entry-level jobs compared to the proportion of females in the relevant labor market; instead, the plaintiff would have to identify the specific recruiting or selection practice that has differentially kept women from being hired.
The CRA 1991 made the plaintiff’s burden in disparate impact cases somewhat easier to meet by providing that if the plaintiff can demonstrate that the elements of an employer’s decision-making process are not capable of separation for analysis, it is not necessary for the plaintiff to identify the specific policy or practice causing the disparate impact. For example, if it is not possible to determine the criteria used to screen applicants or select employees because of a highly subjective hiring process, the plaintiff may make a prima facie case of disparate impact discrimination without identifying the specific policy or practice.
Even if a plaintiff is able to establish that an employer’s practice has had a disparate impact on a protected group, a finding of illegal discrimination does not automatically follow. Instead, the employer is permitted to attempt to justify the use of the challenged practice. In addition to making it harder to prove disparate impact by requiring plaintiffs to identify the specific practice causing it, the Wards Cove decision also made it easier for employers to avoid liability because all an employer needed to do to justify such a practice was to produce some proof the challenged practice was “reasonable.”
In response to the Wards Cove ruling, the CRA 1991 made it more difficult for employers to establish a legal defense for a practice found to have a disparate impact. First, the act increased the employer’s burden by requiring that once a plaintiff establishes the fact of disparate impact, the employer must demonstrate that the challenged practice is both job related and necessary for business. Although the CRA 1991 does not define these terms, it is well settled that it is not enough for the employer to show that it acted in good faith, that it had some nondiscriminatory reason for the practice, or that the practice was merely reasonable. Instead, the employer must produce credible evidence showing that the requirement is related to performance on the job. For example, although formal validation studies are not necessarily required, if it is shown that an employer’s use of a selection test has a disparate impact on the hiring of minorities, evidence of significant correlation between applicant scores on the selection test and performance on the job would allow the employer to establish a defense.
The CRA 1991 also made it more difficult for employers to establish a defense to a showing of disparate impact by making it clear that the employer not only has to produce some evidence indicating the challenged practice is job related and consistent with a business necessity, the employer must also persuade the court of that alleged fact. As a practical matter, this means that if the plaintiff produces contradictory evidence of equal quality, the employer would fail to establish a legal defense (i.e., “ties” go to the plaintiff).
Mixed-Motive Disparate Treatment Cases
Disparate treatment discrimination claims involve intentional discrimination in that the employer is alleged to have intentionally used race, gender, or another protected characteristic as a factor in an employment decision or action. In a “mixed-motive” disparate treatment case, there is evidence that the protected characteristic in question was only one of multiple factors influencing the employer’s decision; in other words, a discriminatory motive was a factor, but not the only factor contributing to the employment action in question.
The 1989 Supreme Court decision in Waterhouse v. Hopkins made it more difficult for plaintiffs to meet their burden of proving disparate treatment in mixed-motive cases by holding that the plaintiff loses in such cases if the employer can show the same decision would have been made even without the unlawful motive (for example, because the plaintiff was objectively less qualified). The CRA 1991 clarified that intentional discrimination occurs when race, color, sex, religion, or national origin is a motivating factor in an employment decision, even if there are other nondiscriminatory reasons for the decision. Although an employer’s proof that it would have made the same decision in any event is no longer a complete defense in mixed-motive cases, such a showing is a partial defense in that, if established, the damages available to the plaintiff are limited.
Damages Available to the Successful Plaintiff
Prior to the passage of the CRA 1991, remedies for discrimination under Title VII and the ADA were limited to “make-whole” relief (e.g., back pay, lost future earnings, attorneys’ fees, court costs) and injunctive relief. The CRA 1991 added compensatory damages and punitive damages in certain circumstances. Compensatory damages (e.g., emotional distress, mental anguish, loss of enjoyment of life) may be recovered by victims of disparate treatment or intentional discrimination under Title VII and the ADA. Punitive damages may be recovered if the employer is shown to have acted with malice or reckless indifference for the law. However, the total amount of compensatory and punitive damages available for victims of intentional discrimination is capped at $50,000 to $300,000, depending on the size of the employer.
The damages available to plaintiffs in Title VII and ADA cases may be further limited in mixed-motive intentional discrimination cases if the employer is able to establish the “same-decision” defense. That is, even if it is established that an employer had a discriminatory motive (e.g., gender was a motivating factor in the decision), if the employer can show that the discriminatory intent did not have any practical effect because the employer would have reached the same decision even without the discriminatory intent, then the plaintiff is not entitled to reinstatement, back pay, or compensatory or punitive damages. However, the plaintiff may receive declaratory and injunctive relief, as well as attorneys’ fees and costs.
Right to a Jury Trial
When Title VII was passed in 1964, there was concern that some Southern juries would not be able to render a fair verdict in discrimination cases. As a result, jury trials were not permitted under Title VII as it was originally enacted—the judge assigned to the case decided both questions of law and issues of fact (e.g., did the employer intentionally discriminate?). Under Title II, the CRA 1991 permits jury trials at the request of either the plaintiff or the defendant when compensatory or punitive damages are sought. Because compensatory and punitive damages are unavailable in disparate impact cases, jury trials are not available either.
Other Provisions
The CRA 1991 also includes the following provisions:
- Banning race norming, the practice of adjusting scores, using different cutoff scores, or otherwise altering the results of employment-related tests based on race, color, religion, sex, or national origin to ensure that an employer has a minimum number of minority applicants
- Establishing the Glass Ceiling Commission to study the opportunities for and artificial barriers to the advancement of women and minorities to management and decision-making positions in business
- Broadening protection against private race discrimination based on Section 1981 of the CRA 1866
- Expanding the right to bring claims challenging discriminatory seniority systems
- Limiting the rights of nonparties to attack consent decrees in employment discrimination cases by barring any challenges by parties who knew or should have known of the decree or who were adequately represented by the original parties
Impact of the CRA 1991
The CRA 1991 significantly expanded the legal rights and remedies available to victims of discrimination in the American workplace. The objective increase in the likelihood that a plaintiff could succeed at trial, as well as the substantial increase in monetary damages potentially available to plaintiffs, prompted employers to become more concerned with the threat of employment discrimination litigation. Empirical evidence indicates that the perceived greater threat of employment litigation was, in fact, realized. For example, research examining employment lawsuits filed before and after the passage of the CRA 1991 indicates the number of federal cases alleging discrimination in employment more than doubled from 1991 to 1995; the greatest increase came from lawsuits by former employees alleging discrimination in a firing decision (a trend that had begun before the passage of the CRA 1991). The amount of monetary awards received by plaintiff workers in employment discrimination cases also increased dramatically over the same period, although there is evidence that media reporting contributed to a greatly inflated perception of these awards.
The effect of the CRA 1991 on employment levels for women and minorities was less dramatic. Critics of the CRA 1991 argued that the threat of hiring-based disparate impact lawsuits would force employers to hire by quota. That is, employers would simply hire representative percentages of applicants from protected groups—with little or no regard for applicants’ actual job qualifications—to avoid statistical disparities that might lead to a disparate impact claim. However, others argued that the cost of discharge litigation would motivate employers to avoid hiring minorities and women because of the perceived greater risk associated with firing employees in those groups. Overall, studies looking at the impact of the CRA 1991 on the employment of women and minorities suggest that quota-based hiring fears were unfounded. However, unlike Title VII, the CRA 1991 does not appear to have significantly improved the employment level of women and minorities in industries with traditionally low representations of those groups, nor does it appear to have led to significant gains in wages. In fact, a recent study suggests that employers with greater susceptibility to employment discrimination litigation actually reduced their hiring of protected workers after the passage of the CRA 1991.
Finally, as a result of the increased threat of litigation following the passage of the CRA 1991 and the act’s emphasis on the need for employers to provide credible evidence of the job-relatedness of their employment practices, the role of industrial and organizational psychologists and well-trained human resource professionals within an organization has taken on greater importance. As others have argued, it appears that the best approach to dealing with the increased litigation threat posed by the CRA 1991 is to use the type of sound employment practices developed and promoted by these groups of professionals.
References:
- Bennett-Alexander, D. D., & Hartman, L. P. (2004). Employment law for business (4th ed.). New York: McGraw-Hill.
- Lindeman, B., & Grossman, P. (1997). Employment discrimination laws (3rd ed.). Washington, DC: Bureau of National Affairs.
- Oyer, P., & Schaefer, S. (2003). The unintended consequences of the ’91 Civil Rights Act. Regulation, 26(2), 42-68.
- Robinson, R. K., Franklin, G. M., & Wayland, R. (2002). The regulatory environment of human resource management. New York: Harcourt College.