The Catholic University of America

Summary of Federal Laws

Employment

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EO Officer

Equal Employment Opportunity

Civil Rights Act of 1991 (amends Title VII)

42 U.S.C. § 1981a and 42 U.S.C. §§ 2000e-2(k) - (n)

Allows for compensatory and punitive damages and jury trials when intentional employment discrimination can be shown with respect to one of the Title VII protected classes or with respect to protection offered by the Americans with Disabilities Act or the Rehabilitation Act. Places caps on the amounts that can be awarded. Prohibits use of different cut-off scores based on race in employment tests. However, the EEOC has not offered any policy guidance on this part of the law and how it meshes with affirmative action requirements. Codified the statistically defined adverse impact definition of discrimination (see guidelines on employee selection procedures at 29 C.F.R. § 1607) and states that employer must prove a close connection between disparate impact and the ability to actually perform the job in question. See 42 U.S.C. § 2000e-2(k). This law also clarifies that discrimination is established when race, color, religion, sex or national origin is a motivating factor for any employment practice, even though other factors also motivated the practice.

Selected Case Law
CBOCS West, Inc v. Humphries, No. 06-1431 (2008)
The respondent Humphries claimed that his employer dismissed him because of his race and because he complained to managers that a black co-employee was also dismissed on the basis of race. Humphries brought suit under Title VII and 42 USC § 1981. The Title VII case was dismissed on procedural grounds.
 
In ruling on the 1981 claim, the Court found that an employee of a private employer can bring a retaliation claim under 42 U.S.C. § 1981, which gives "[a]ll persons…the same right…to make and enforce contracts…as enjoyed by white citizens." The basic question before the Court was whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person's contract-related "right." The Court based its reasoning on Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), where § 1982, which provides that "all citizens…shall have the same right, …, as is enjoyed by white citizens…to inherit, purchase, lease, sell, hold, and convey real and personal property," was said to encompass retaliation claims. Since 1991, federal appeals courts have uniformly interpreted § 1981 as encompassing retaliation actions, and have also repeatedly construed §§ 1981 and 1982 similarly. 1981 has a longer statute of limitiations than Title VII, and also contains no limitations on the amount of punitive and pain and suffering damages. In addition, a plaintiff has four years to file a suit under 1981, unlike the 300 statute of limitations under Title VII. For more see Supreme Court Gives Green Light for Retaliation Claims under Two Civil Rights Statutes, by Jackson Lewis, posted May 28, 2008.
 
 
In this case the Supreme Court considered the effects of the 1991 Civil Rights Act on jury instructions in cases where both legal and non-legal motives influenced the employment decision. These cases are referred to as mixed motive cases. In a case prior to the 1991 Civil Rights Act, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court had ruled that an employer could avoid liability in a mixed motive case if could prove it would have made the same decision even if it had not allowed a discriminatory reason to play a role. Despite passage of the 1991 Civil Rights Act, which was intended to clarify the law in this area (see 42 U.S.C.§2000e-(2(m)) a number of lower courts had divided on the burden of proof issue in mixed motive cases. Many lower courts continued to hold that a plaintiff must prove by direct evidence that an impermissible consideration was a motivating factor in any adverse employment action. The Supreme Court accepted the Costa case to clarify the confusion.
 
In the Costa case, the employee claimed both sex discrimination and sex harassment, and the court allowed the claim for sex discrimination to go to the jury. The jury instructions provided as follows:
 
"[t]he plaintiff has the burden of proving … by a preponderance of the evidence that she 'suffered adverse work conditions' and that her sex 'was a motivating factor in any such work conditions imposed upon her.' "
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"You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision. "

Based on these instructions, the jury issued a verdict in favor of the Plaintiff (here Respondent) Costa.

The Supreme Court upheld the ruling that the trial court did not abuse its discretion in giving the mixed motive instruction to the jury. The holding was written by Justice Thomas for a unanimous court. The decision was based on the plain language of the 1991 amendment to the Civil Rights Act, which the Court found wholly abrogated any requirement of direct (as opposed to circumstantial) evidence as to discrimination before the jury could find for the plaintiff in a mixed motive case. The end result is that it will be easier for employees to win discrimination cases when an illegal motive (a decision based on race, sex, national origin, etc.) is one of several factors (including a permissible factor) in an adverse employment action.

For more see the Jackson Lewis commentary on the case.

Resources
Statement on the Signing of the Civil Rights Act of 1991
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Updated 6/11/03 to add Costa case
updated 11/16/07 AAA
links updated 6/13/08 rab
updated to add CBOC West case
CFR updated 10/22/08 RAB
links checked and compliance partner added by mlo 3/1/09
compliance box links updated 6/2/09 rab
Links checked July 1st, 2010, FJL.
links checked and updated 07/08/10 TOL