Civil Rights Act of 1991

Civil Rights Act of 1991 was the most complete civil rights legislation since the Civil Rights Act of 1964. The federal law was passed into law by Congress on Nov. 21, 1991, following two years of debate, and prohibited discrimination for job applicants and workers, based on race, gender, religion, color or ethnic characteristics.

More Facts: Civil Rights Act of 1991

While the 1991 Act was an amendment of the 1964 law, it did not replace it. Instead, the Civil Rights Act (CRA) of 1991 strengthened the previous law, particularly in terms of the liability on employers and the burden of proof. The new legislation also:

  • Modified some basic procedural and substantive rights under federal law in the area of employment discrimination
  • Offers a trial by jury option in discrimination cases
  • Presented the first opportunity to collect emotional distress damages
    • Limited how much juries could dole out

The new CRA was largely in response to a 1989 decision of the Supreme Court that diminished workers’ ability to sue employers for discriminatory reasons. The 1991 legislation not only brought back some of this capability for employees but also added new methods of suing employers. For these reasons, many people view the Civil Rights Act of 1991 as being a loss for corporations regarding their interests regarding discrimination law.

Civil Rights Act of 1964

The 1964 CRA prohibited workplace discrimination based on religion, sex, color, and also on national origin. The legislation did not enable damages or compensation, other than retroactive pay or similar, that the injured party could collect. The passage of the 1964 law was a step forward in affirmative action as it encouraged the hiring of females and minorities in companies and institutions. The response from some organizations was to alter their employment tests so that underprivileged minorities would get better scores.


In recent decisions on employment discrimination cases, as they relate to federal law, the U.S. Congress has limited the range and usefulness of civil rights safeguards. Solutions and protections under federal legislation are not enough to prevent illegal discrimination, as well as falling short on compensation available to victims, contends Congress.


The Civil Rights Act of 1991 was enacted to:

  • Provide suitable solutions for purposeful discrimination and illegal employment harassment
  • Categorize the terms “job-related” and “business necessity” articulated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and in decisions before Wards Cove Packing Co. v. Atonio, 490 U.S. 652 (1989)
  • Clearly state statutory authority and guidelines for disparate impact suit judgments under the 1964 CRA’s Title VIII
  • Extend the range of civil rights statutes after recent Supreme Court decisions so that victims would get enough safeguards from discriminatory treatment

Effects of the Ruling

The decision in the Ward’s Cove case was the main motivator behind the 1991 CRA being passed. The court ruling had blurred legal precedents regarding which party in this kind of suit has the burden of proof in the courtroom. The ruling made it, so employees with civil rights claims had to build persuasive court cases based on a cohesive list of facts. For the plaintiffs, the expectation was that they provide persuasive facts that met all legal necessities, instead of providing a more general claim and leaving it up to the company’s to use facts to disprove it.

The Ward’s Cove ruling shifted the burden of proof from employer to employee, which made it more difficult to provide discrimination. If the plaintiff illustrated that an employer action did harm to a protected group, then an employer had to prove that its actions were a “business necessity.” The Supreme Court decided plaintiffs had to do more than illustrating disparate income; they had to show a direct link between the employer activities and the discriminatory result. The Court also replaced the defense of business necessity with a broader one of business justification. The decision was overturned by the Civil Rights Act of 1991.

Democratic Failure

When Representative Augustus F. Hawkins and Senator Edward M. Kennedy introduced a civil rights bill called the Kennedy-Hawkins Civil Rights Act of 1990, it was received with controversy. This debate over it continued right up until President George Bush vetoed it in the fall of 1990. Bush had been against the 1964 CRA and had also opposed a bill introduced by the Democratic Party under worries that it could result in racial hiring measures. This anxiety came after the Kennedy-Hawkins Civil Rights bill’s regulation that punitive and compensatory damages were payable to employees when discrimination was proven in court. The fear was that companies would avoid this legal risk by creating hiring quotas.

With more sexual harassment cases popping up across the U.S. and the unpopularity of Bush’s decision, Bush provided a civil rights bill to the House that was similar to the 1990 bill. Interestingly, a small number of civil rights advocates expressed outcry over the bill because it was in favor of the middle-class, well-educated middle-class minority adults and didn’t help the underclass.

Republic Compromise

In the Republican version of the bill that President Bush submitted, he included the guideline that moved the burden of proof in cases involving discrimination to the employer rather than the employee, but he did not include the retroactivity clause. But because of the similarity between the two bills, the Republicans were critics as much of this bill as the former one. This led to Bush ultimately saying he would veto the bill, however, what stopped him was the harsh political influence of the Clarence Thomas Supreme Court nomination hearings, which involved Anita Hill accusing Thomas of workplace sexual harassment. This was not a time for Bush to veto the bill.

Mixed-Message Law

When passing the Civil Rights Act of 1991, Democrats included a provision strictly limiting employers from taking race, ethnic, gender, or religious factors into consideration during employment activities. Republicans opposed to it stated that this undid federal affirmative action initiatives. Meanwhile, Democratic favoring the bill explained that was not their intention, and they responded by including a “saving clause” that strengthened the legality of affirmative action provided it did not go against the CRA. Others criticized the bill still, saying this addition did little as no definition of affirmative action had been made.

Features of the 1991 CRA

This 1991 legislation included:

  • The ability to provide the injured parties with punitive and compensatory damages
  • Employee can select a trial by jury rather than just judge alone
    • 1964 CRA allowed only for judge decisions
  • Provided the employee the ability to collect these damages if the case had a jury
  • Maximum set for damages, which applies to each person suing
    • If three people from one company are suing, then the amount awarded increases threefold
  • Strengthened the 1964 law regarding employment discrimination based on race, color, gender, and religion being unlawful

However, the Civil Rights Act of 1991 did not apply its rules to business with less than 15 employees. It also did not address employment discrimination based on sexual orientation. Essentially, the 1991 CRA covers employment law and provides big repercussions if discrimination is proven.

Discrimination as Factor, Not Cause

When the Civil Rights Act of 1964 passed, it still allowed race and gender to be employment factors, so long as color, gender and religious attributes were proven not to have played a role. With the passage of the Civil Rights Act of 1991, however, any discriminatory consideration was illegal in employment activities, whether or not the case could be proven for it not causing harm to the plaintiff. But, while the new CRA punishes for discriminatory employment practices, discrimination lawsuits are rarely straightforward.

Most of these cases are “mixed-motive” or “dual-motive,” meaning an employee can sue the employer for gender playing a role in the discriminatory workplace action. This means that even if the employer can prove another factor was involved, the company may lose the case still, as per the 1991 Act. The jury, though, could not award the highest amount of damages to the injured party.

For example, if a security company stated specific height and weight criteria for jobs were excluding women and Hispanic people from applying or being hired, the company could be sued for damages, even if the company provided it did not intend to discriminate. Although it would be hard for a company to prove they required these specific attributes for job performance, it is possible.


When the 1991 CRA passed, it means that employment discrimination cases currently pending in the legal system were not covered by the Act. In other words, it was not retroactive. However certain attorneys, law teachers, and civil rights proponents criticized this situation as the Act was passed to help the pending cases.

Ambiguous Protections

  • What is Affirmative Action?

Those people in favor or retroactivity have criticized the Civil Rights Act of 1991 for its failure to give “affirmative action” a specific meaning, in spite of the legislation containing a saving clause for gender and race. In addition to gender and race, ethnic background, color, and religious stance were all also amongst the factors prohibited for use by employment firms and employers.

  • Racial Hiring Quotas: Allowed or Not?

Following the 1991 CRA, some businesses withdrew employee tests and replaced them with scores that favored disadvantaged minorities. The law was ambiguous as it stated in one section that this skewed scoring was illegal while it seemed to allow it when it is beneficial for protected groups by upholding affirmative action.

  • What is Sex Discrimination?

Also, the Act did not define sexual harassment, so it was not clear how employers could prove their case in employment-related disputes with sex discrimination claims. In fact, there was not even a mention of sexual harassment in the 1991 CRA.

Accomplishments of the Act

As for what the act has accomplished, it is publicly viewed by many people today to have advanced the rights of women and minority persons. It also was part of the process in creating educational policies, so men would better understand stereotypes about women that had been part of society for so long. The Act aided in stopping obvious sexual harassment in work environments too.

Given these views on the Civil Rights Act of 1991, it is clear that lawmakers had an intent to dispel employment discrimination and there has not, at least at this point, been any worse-case situations resulting from the Act’s passage. There has not, for example, been any disbanding of affirmative action programming or racial hiring quotas by all companies.

The 1991 CRA has instead driven up the number of discrimination cases against employers. Over 42,000 complaints of civil rights violations had been filed in U.S. District Courts in 1998, which was a whopping 125 percent increase from 1990. In comparison, noncivil rights cases rose by under 8 percent. Of the increase in civil rights lawsuits, two-thirds of them were in employment discrimination.  See the Bureau of Statistics for a full report.

As you can see, the effects of the 1991 CRA have been far-reaching and substantial for small businesses and corporations. It may be small companies that are most affected by the legislation as they have more limited resources than corporations if they face a lawsuit, and often they lack employment procedures.

Proof of Unlawful Employment Practices in Disparate Impact Cases

Here are the different standards of proof:

  • If a complainant shows that employment practices (one or several) lead to a disparate impact based on gender, religion, color, race, or national background, and the employer fails to show that this practice is required as a business necessity, then it is considered unlawful
  • If, however, the party complaining shows that several employment practices create a disparate impact, this party need not show exactly which practice(s) with in the group led to the resulting disparate impact
  • When the respondent proves that a certain employment practice in a group of employment practices in no ways adds up to disparate impact, the respondent has no requirement to show this practice was necessary by business necessity
  • Should the court decide that the complainant can provide which practice(s) led to the disparate impact, this complainant must show which exact practice(s) let to the impact

This can be shown during discovery, for example

  • Business necessity only need be shown by the respondent when the complainant illustrates that certain practice(s) have led to the disparate income
  • If a complainant shows that a different employment practice(s) would be fine for a respondent too then, it means this overrides the business necessity illustrated by employment practice(s), and such practice(s) are then deemed illegal
  • Using a defense that employment practice occurs by business necessity is only allowed against a claim under Title VII of the 1991 Act
  • Under the 1991 changes to Title VII, employing a person who uses drugs knowingly or possesses illegal drugs is deemed an unlawful employment practice under this title only if this rule is adopted or applied with the intention to discriminate due to sex, national origin, color, religion, or race
  • If the employees are not balanced by way of gender, color, race, religion, or national background within an employer’s workforce, the alone does not constitute a prima facie case of unlawful disparate impact.

A paper notice from a source of the suggested litigated or consent judgment or order is given to the person for whom the judgment or order may affect them, and an opportunity is given to object to that order or judgment. If the court determines that enough effort was put toward providing notice to the person, then a determination must be made before entering the order or judgment. The exception is if the order or judgment was entered before the date of when the Act’s subsection about this was made; in that case, the determination can be done at any time.

This finality section applies to (1) the rights of parties to the action involved in the entered judgment or order, or (2) people in a represented class in the action, or (3) people in a group who wanted to be represented by the action, or (4) people in a group who had relief sought for them by the federal government. If an activity happens that may go against an employment practice it will be brought to the court that entered that order or judgment. These guidelines are in place so that an order or judgment will not be challenged on the grounds it was done fraudulently or via collusion, or that it was invalid or not the correct jurisdiction.

Alternative Means of Dispute Resolution

If disputes come from this title or Federal guidelines, alternative means of resolutions can be sought, provided they are appropriate and legal. Examples are:

  • Conciliation
  • Mediation
  • Mini-trials
  • Settlement negotiations
  • Arbitration
  • Fact finding
  • Facilitation

Discriminatory Practices Prohibited

Section 302 of the 1991 CRA’s Title III outlines prohibited discriminatory activities. Personnel actions affecting employees must not discriminate based on sex, color, race, religion, or national origin, as per the 1964 CRA’s section 717. Age discrimination is banned as per the Age Discrimination Employment Act of 1967, while disability or handicap discrimination is disallowed within the guidelines of the Rehabilitation Act of 1973 (section 501) and the Americans with Disabilities Act of 1990 (sections 102 F

Government Employee Rights

Title III of the act covers government employee rights. Senate employees must act without discrimination based on sex, race, color, religion, or national origin, given that the CRA 1991 extended fair employment law coverage. Senate personnel were now covered by federal law so they could make Employment discrimination claims either via in-house procedure or a limited right of appeal to a federal court.

As per Title III, a “Senate Employee” is one of the following:

  1. An employee who is paid by the secretary of state
  2. An employee of the Architect of the Capitol, who is assigned to the Superintendent of the Senate Office Buildings or the Senate Restaurants
  3. Any applicant for a position lasting 90 days or longer and occupied by someone in (1) or (2)
  4. A person formerly an employee in (1) or (2) and who has a claim of a violation coming from their Senate employment. A “violation” refers to a practice that defies Title III’s section 302.

CBOCS West, Inc. v. Humphries, No. 06-1431 (2008)

In this case, Humphries put forward the claim that his employer let him go from the workplace because of his race and because he complained to managers that a black co-employment was dismissed based on race too. Humphries sued under Title VII and 42 U.S.C. 1981, the case was dismissed for procedural reasons. The court decision was that an employee could retaliate against a private employer when this action gives all people the same right to create and carry out contracts enjoyed by white citizens.

Desert Palace, Inc. v. Costa, No. 02-679, (2003)

The Supreme Court decided in the Costa case that an employer may not be liable in a mixed-motive case if it is shown to the court that they would have made the same decision even if forbidden a discriminatory reason to play a role. Lesser courts still hold that a plaintiff must prove an unallowable consideration was motivational in any disagreeable employment activity; this must be illustrated by direct evidence. In this case, the employee made claims of sexual discrimination and sexual harassment. The court determined that the sexual discrimination claim would go before a jury.

The Supreme Court considered how the Civil Rights Act of 1991 affected how the jury is given its instructions in mixed-motive cases like the Costa case. The instructions were:

  • If you determine the plaintiff’s sex was a motivator in how the defendant treated the plaintiff, then the plaintiff may, by all means, receive your verdict, even if the defendant’s behavior was also influenced by a legal reason
  • If you determine the way the defendant treated the plaintiff was motivated by lawful reasons and sex, you must decide whether the plaintiff ought to receive damages
  • Entitlement of the plaintiff to damages goes ahead unless the defendant proves by overwhelming evidence that the defendant would have acted similarly toward the plaintiff even if the plaintiff’s sex had no role in the employment action

In Desert Palace, Inc. v. Costa, No. 02-679, (2003), the jury’s verdict was for the plaintiff. This ruling was upheld by the Supreme Court, who stated the trial court did not misuse its discretionary power in instructing the jury in mixed-motive cases. The Supreme Court based its decision on the 1991 amendment to the CRA that revoked any rule of direct evidence regarding discrimination before the jury could issue a verdict in favor of the plaintiff in a mixed-motive case. Thus, it is easier following the Costa case for employees to win discrimination lawsuits where an unlawful decision based on gender, national origin, race, or color, is one of many factors, which includes an allowable factor, in a disagreeable employment decision.

Whether you have a small business, a large corporation, or a business entity that falls somewhere in-between the two, you must consider how federal legislation, such as the Civil Rights Act of 1991, affects business practices, if you want to avoid legal issues down the road. Therefore, it is ideal to seek legal advice on employment law. Connecting with a respected attorney need not be difficult, at least not when you post your legal need in our UpCounsel marketplace. Doing so will provide you with access to lawyers who have the experience to help you create a workplace that is free of discrimination and harassment. The lawyers work for top firms, such as Google, with an average of 14 years of legal experience, and are graduates of highly esteemed schools that include Harvard Law.