The Civil Rights Act of 1991

The effect of CRA 1991 was to roll back equal employment law to where it stood before the 1980s decisions and to place more responsibility on employers. Burden of proof—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. Once an aggrieved applicant or employee demonstrates that an employment practice has an adverse impact on a particular group, then the burden of proof shifts to the employer, who must show that the challenged practice is job related.

Before CRA 1991, victims of intentional discrimination (which lawyers call disparate treatment) who had not suffered financial loss and who sued under Title VII could not then sue for compensatory or punitive damages. All they could expect was to have their jobs reinstated (or to get a particular job). They were also eligible for back pay, attorneys’ fees, and court costs. CRA 1991 makes it easier to sue for money damages in such cases. It provides that an employee who is claiming intentional discrimination can ask for compensatory damages.

They can also ask for punitive damages, if they can show the employer engaged in discrimination with malice or reckless indifference to the federally protected rights of an aggrieved individual. Some employers in “mixed-motive” cases had taken the position that even though their actions were discriminatory, other factors like the employee’s dubious behavior made the job action acceptable. Under CRA 1991, an employer cannot avoid liability by proving it would have taken the same action—such as terminating someone—even without the discriminatory motive. If there is any such motive, the practice may be unlawful.