Equal Employment opportunity (U.S. Laws)

Civil Rights Act of 1991 (CRA 1991):

It places burden of proof back on employers and permits compensatory and punitive damages.

The Civil Rights Act of 1991:

Several subsequent Supreme Court rulings in the 1980s had the effect of limiting the protection of women and minority groups under equal employment laws. For example, they ratcheted up the plaintiff’s burden of proving that the employer’s acts were in fact discriminatory. This soon prompted Congress to pass a new Civil rights act. President George H W Bush signed the Civil Rights Act of 1991 (CRA 1991) into law in November 1991. The effect of CRAW 1991 was to roll back equal employment law to where it stood before the 1980s decisions, and in some respects to place even more responsibility on employers.

First CRA 1991 addressed the issue of burden of proof. Burden of proof in this case, what the plaintiff must show to establish possible illegal discrimination, and what the employer must show to defend its actions plays a central role in equal employment cases. Today, the heaviest burden is again on the employer. In particular the process of filing a discrimination charge goes something like this. The plaintiff (say, a rejected applicant) demonstrates that an employment practice (such as a test) has a disparate (or adverse) impact on a particular group. Disparate impact means that an employer engages in an employment practice or policy that has a greater adverse impact [effect] on the members of a protected group under Title VII than on the employees regardless of intent. Requiring a college degree for a job would have an adverse impact on some minority groups, for instance. Disparate impact claims do not require proof of discriminatory intent the plaintiff’s burden is to show two things. First, he or she must show that a significant disparity exists between the proportion of (say) women the available labor pool and the proportion hired. Second, he or she must show that an apparently neutral employment practice, such as word of mouth advertising or a requirement that the jobholder be able to lift 100 pounds is causing the disparity.

Then, once the plaintiff fulfills his or her burden of showing such disparate impact, the employer has the heavier burden of proving that the challenged practice is job related. For example, the employer has to show that lifting 100 pounds is actually required for effectively performing the position in question, and that the business could not run efficiently without the requirement that it is a business necessity.

Money damages: CRA 1991 also makes it easier to sue for money damages in some cases. It provides that an employee who is claiming intentional discrimination (called disparate treatment) can ask for (1) compensatory damages and (2) punitive damages, if it can be shown the employer engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.” Before CRA 1991, victims of intentional discrimination who had not suffered financial loss and who sued under Title VII could not sue them for compensatory or punitive damages. All they could expect was to have their jobs reinstated (or be awarded a particular job). They were also eligible for back pay, attorneys’ fees, and court costs.

Mixed Motives Finally, CRA 1991 also states:

An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

The last phrase is pivotal. Now, an employer cannot avoid liability by proving it would have taken the same action such as terminating someone even without the discriminatory motive.

Mixed motive case:

A discrimination allegation case in which the employer argues that the employment action taken was motivated not by discrimination but by some non-discriminatory reason such as ineffective performance

If there is any such motive, the practice may be unlawful. Plaintiffs in such so called “mixed motive” cases then gained further advantage from the Supreme Court decision in Desert Palace Inc V Costa. Here the Court decided that the plaintiff, a warehouse worker, did not to provide evidence of explicitly discriminatory conduct (such as discriminatory employer statements) but could provide circumstantial evidence (such as lowered performance evaluations) to prove the mixed motive case.

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