President George H. W. Bush vetoed the proposed Civil Rights Act of 1990, asserting that it would force employers to adopt rigid race-and gender-based hiring and promotion quotas to protect themselves from lawsuits. The act had strong bipartisan support in Congress: cosponsors included Republican senators John C. Danforth, Arlen Specter, and James M. Jeffords. Other Republicans, including the conservative Orrin Hatch of Utah, had helped to shape the bill along lines demanded by President Bush. Sixty-six senators, including eleven Republicans, voted to override the veto, one short of the necessary two-thirds majority. A year later, President Bush signed the Civil Rights Act of 1991, which became law on 21 November 1991.
Congress passed both acts in response to the Supreme Court's decisions in Ward's Cove Packing Company, Inc. v. Atonio (1989), Patterson v. McLean Credit Union (1989), and four other cases. These decisions reversed nearly two decades of accepted interpretations of existing civil rights statutes, making it more difficult for minorities and women to prove discrimination and harassment in working conditions and in the hiring and dismissal policies of private companies.
Ward's Cove involved a challenge to hiring practices under Title VII of the Civil Rights Act of 1964.Bya five-to-four vote, the Supreme Court ruled that employers need only offer, rather than prove a business justification for employment practices that had a disproportionate adverse impact on minorities. The decision reversed the precedent in Griggs v. Duke Power Company (1971), which required employers to prove they were not discriminating in hiring practices if a plaintiff could show that actual hirings did not reflect racial balance.
Patterson involved a claim of on-the-job racial harassment brought under Title 42, section 1981, of the U.S. Code, a surviving portion of the Civil Rights Act of 1866. Congress had passed the 1866 act to protect the rights of former slaves; it prohibits discrimination in hiring and guarantees the right to "make and enforce contracts." In Patterson, the Court held that Section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." In other words, the Court said that the law did not apply to working conditions after hiring and hence did not offer protection from on-the-job discrimination or harassment because of the employee's race or gender.
In adopting the 1991 act, Congress reinstated the earlier interpretations of civil rights law. The Supreme Court clearly understood this to be the intent of the act. In Landgraf v. USI Film Products (1994), which interpreted the 1991 act, Justice John Paul Stevens wrote:
The Civil Rights Act of 1991 is in large part a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964. Section 3(4) expressly identifies as one of the Act's purposes "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination."
In addition to rejecting the Supreme Court's interpretation of the 1964 act, Congress also expanded the scope of remedies available under the 1964 Civil Rights Act. The 1991 act allows plaintiffs to ask for a jury trial and to sue for both compensatory and punitive damages up to a limit of $300,000. Before the 1991 act, employees or potential employees who proved discrimination under Title VII could only recover lost pay and lawyer's fees. Yet, discrimination settlements reached through private suits under state tort law ranged from $235,000 to $1.7 million.
In the 1990 bill vetoed by President Bush, Congress provided for retroactive application to cases then pending before the courts or those dismissed after Ward's Cove. Approximately one thousand cases were pending. In the 1991 act, Congress was unclear about retroactivity. Civil rights activists argued that the Court should allow such suits on the ground that the 1991 law reinstated antidiscrimination rules that had existed since adoption of the 1964 Civil Rights Act. After signing the 1991 act, however, President Bush argued that it did not apply to pending cases but only to cases of discrimination that arose after the law. Most federal courts accepted Bush's position, and in Landgraf v. USI Film Products and Rivers v. Roadway Express, both decided in 1994, the Supreme Court did too. The Court decided both cases by votes of eight to one, the retiring Justice Harry Blackmun dissenting. Justice Stevens wrote the majority opinions.
Although President Bush had labeled the proposed 1990 Civil Rights Act a "quota bill," the 1991 law had nothing to do with quotas. It provided protection for job applicants and workers subject to discrimination or harassment. It gave meaning to the right to enter contracts that was guaranteed to African Americans in the Civil Rights Act of 1866 and to the antidiscrimination provisions of the Civil Rights Act of 1964. It reestablished principles that had been part of civil rights jurisprudence for two decades. In short, the scope of the 1991 act was narrow, returning civil rights law to where it had been before the 1989 rulings of the conservative majority on the Rehnquist Court.
Bibliography
Karst, Kenneth L. Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion. New Haven, Conn.: Yale University Press, 1993.
Liebold, Peter M., Stephen A. Sola, and Reginald E. Jones. "Civil Rights Act of 1991: Race to the Finish—Civil Rights, Quotas, and Disparate Impact in 1991." Rutgers Law Review 45 (1993).
Rotunda, Ronald D. "The Civil Rights Act of 1991: A Brief Introductory Analysis of the Congressional Response to Judicial Interpretation." Notre Dame Law Review 68 (1993): 923.
—Paul Finkelman/C. P.
