Antidiscrimination Legislation (Update 2a)

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The major piece of recent antidiscrimination legislation is the civil rights act of 1991. (The americans with disability act of 1990 is outside the scope of this comment.) The 1991 act was passed chiefly in response to the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio (1989). That decision undercut the disparate impact theories of discrimination (that is, those which look at the outcome of certain practices without regard to the employer's intention) that had been read into Title VII of the original civil rights act of 1964 in the Court's earlier decision in griggs v. duke power company (1971). Wards Cove appeared to overturn the Griggs rule that employers could only escape disparate impact liability by showing a business necessity for a given practice. Wards Cove then allowed the employer to meet the lower standard of "reasonable business justification," transferring the burden of proof to the employee.

Wards Cove provoked a strong reaction from supporters of Title VII, who, after much negotiation and compromise, regained lost ground with the 1991 act. There Congress first found that Wards Cove "weakened the scope and effectiveness of Federal civil rights protections." In response, Congress added section 803(k)(1)(A) to the 1964 Civil Rights Act which provides that "a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." The 1991 act thus restores, perhaps in its entirety, the law on disparate impact as it was generally understood prior to Wards Cove, by reintroducing the notion of business necessity and by providing that both the burden of production and the burden of persuasion rest on the employer.

One issue left open by the 1991 act was the retroactive application of the 1991 act. That question was important because Wards Cove left in limbo disparate impact cases that were pending when the case was decided. If the 1991 act had applied retroactively, then employees in pending cases could have taken advantage of the 1991 act's provisions that allowed for compensatory and punitive damages provisions in a jury trial. These provisions represent a departure from Congress's decision in 1964 to ban punitive damages, cap damage awards to back-pay, and bar jury trials. In Landgraf v. USI Film Products (1994), the Court held, however, that the general ruleoflaw presumption against retroactive decisions had not been overcome because the 1991 act was silent on the question.

Even though the act is not retroactive, the modifications it contains have removed any doubts as to the statutory ground of the disparate impact test. No longer is it possible to attack the entire notion on the ground that the original 1964 act was limited to cases of intentional discrimination only. Today disparate impact theories have become an indisputable part of the civil rights law. Yet the 1991 act has done nothing to resolve the difficult questions of determining the appropriate occupational and geographical market that defines the boundaries of the labor pool against which any disparate impact claim should be litigated.

Seven years after the 1991 act, disparate impact cases appear to loom less large than before the passage of the act. In part, the relative quiet along the disparate impact front results from heightened emphasis on disputes over affirmative action and sex discrimination in the form of workplace harassment. Yet, the change in legal terrain also results in part because employers since Griggs have been made aware of the serious exposure to disparate impact cases (which easily lend themselves to class actions). They have thus taken, even before Wards Cove, key steps to bring their practices in alignment with Griggs. Their vigilance did not decrease with Wards Cove, because the campaign to overrule it legislatively began in earnest the day it was handed down. In one respect, however, the 1991 act did strengthen the position of employers. Section 703(k)(3) of the act provides that disparate impact theory shall not be used with respect to the rule that applies to testing or use of illegal drugs; in those cases, the employer may be held liable only if the rule is applied "with an intent to discriminate" on the familiar grounds outlawed under the 1964 act.

The 1991 act also ushered in a number of other important changes. Section 703(1) prohibited the practice of "race norming," which reported the percentile scores of individual applicants only with reference to the particular racial group of that applicant. Prior to the act, some employment services would report that an applicant was in the x percentile of those tested, without making it clear that the percentage was adjusted to the applicant's racial group. In this perspective, a black candidate would appear to fall within the higher percentage group than a white candidate who received an equal score. After 1991, employment services must report all scores in relationship to a nation-wide pool. In addition, the 1991 act clarifies in section 703(m) that a case of intentional discrimination can be made by showing that the forbidden ground was "a motivating factor" even if not the sole factor behind the employment decision—a rule that does not apply retroactively. Finally, again on a prospective basis, the act as noted expands the rights to compensatory and punitive damages in jury trials.

Antidiscrimination legislation has continued to expand in ways that go far beyond the contours of the original 1964 Civil Rights Act. This legislation has spilled over into such areas as family leave, health, and disability law. The obvious challenge in this growing area is to find rationales that justify the increased levels of intervention when by all measures the levels of institutional discrimination have declined sharply since the 1960s. This task is compounded especially when it becomes ever more difficult to attribute improvements in wages and employment conditions to the aggressive enforcement of civil rights laws, now that the obvious legislative targets have been overcome. It appears that free entry into competitive markets, now more than ever before, provides the strongest systematic defense against all forms of discrimination, without the immense regulatory drag of the current legal structure.

Richard A. Epstein

(see also: Retroactivity of Legislation.)


Epstein, Richard A. 1992 Forbidden Grounds: The Case Against Employment Discrimination Laws. Cambridge, Mass.: Harvard University Press.

Kelman, Mark 1991 Concepts of Discrimination in "General Ability" Job Testing. Harvard Law Review 104:1158–1247.

Symposium 1993 The Civil Rights Act of 1991: Unraveling the Controversy. Rutgers Law Review 45:887–1141.

——1993 The Civil Rights Act of 1991: Theory and Practice. Notre Dame Law Review 1993: 911–1164.