Purpose. The Civil Rights Act of 1991 was passed to reverse a number of U.S. Supreme Court decisions between 1989 and 1991, and amends Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, the Age Discrimination In Employment Act and Section 1981 of the Civil Rights of 1866.

Damages. The Civil Rights Act of 1991 amends Title VII, the ADA and the federal employment section of the Rehabilitation Act to allow the complaining party to recover compensatory and punitive damages in the case of intentional discrimination.1 Compensatory damages is broadly defined to include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses. Punitive damages are authorized only when respondent has acted with malice or with reckless indifference to the federally protected rights of an aggrieved individual.2 The compensatory and punitive damages are limited to $50,000 for an employer with 15 to 100 employees, $100,000 for an employer with 101 to 200 employees, $200,000 for an employer with 201 to 500 employees, and $300,000 for an employer of more than 500 employees.

Jury Trial. The Act also provides that any party may demand a jury trial when a complaining party seeks either compensatory or punitive damages under Title VII, the ADA or the federal employment sections of the Rehabilitation Act. The Act provides that the court may not inform a jury of the statutory limits to the award of compensatory and punitive damages.3

Section 1981 of the Civil Rights Act of 1866. Until the 1989 U.S. Supreme Court decision in Patterson v. McLean Credit Union,4 Section 1981 protected individuals against race discrimination in employment at all stages of the employment process. In Patterson the Court held that Section 1981 only applied to the hiring process. The Civil Rights Act of 1991 amends Section 1981 to make clear that it prohibits racial discrimination at any stage of the employment process.5

Disparate impact cases. The Civil Rights Act of 1991 legislatively confirms that a plaintiff may recover under a disparate impact theory in Title VII litigation. In a disparate impact case, proof of intent of discriminatory motive is not required. If the plaintiff shows that a particular employment practice resulted in a disparate impact on protected class under Title VII, and if the employer fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity, then a violation of Title VII may be established.6 In addition, the Act requires the defendant to demonstrate business justification once the plaintiff has shown that the employer's practice has a disparate impact. Finally, if the employer provides a legitimate business justification for the action, the complaining party may prevail if it demonstrates an alternative employment practice that is not discriminatory and the employer refuses to adopt it.7
The Act also amends Title VII to prohibit changing or modifying scores or race norming when comparing scores on employment-related tests on the basis of race, color, religion, sex or national origin.8

Mixed motive cases. The Civil Rights Act of 1991 provides that an illegal employment practice is established by showing that race, color, religion, sex or national origin was a motivating factor, even though other factors also motivated the practice.9 The employer may then defend his case by establishing that the employer would have made the same employment decision even if it had not been partially motivated by a discriminatory reason. However, this defense merely has the effect of limiting the plaintiff's remedies to declaratory, injunctive relief and attorney fees and costs associated with the claim. The consequence is that the plaintiff cannot recover damages or an order that he/she be hired, promoted or reinstated.10

Challenges to judgments. The Act also limits the circumstances under which a non-party to a litigated or consent judgment or order may later challenge an employment practice that implements and is in the scope of such judgment or order.11

American citizens in foreign countries. The Act amends Title VII and the ADA to include under the definition of employee, United States citizens employed in foreign countries. It creates a presumption that a violation of Title VII or the ADA by a foreign corporation controlled by a U.S. employer is a violation of Title VII by the U.S. employer itself. The Act does provide an exemption for unlawful employer actions if compliance would violate the laws of the foreign country in which the workplace is located.12

Seniority systems. The Act states that with respect to a discriminatory seniority system, a violation of Title VII occurs at any of the following times: When the seniority system is adopted, when an employee becomes subject to the system, or when a person is injured by the application of the system or a provision of the system. Consequently, the limitations period may be considered to begin to run at any of those times.13

ADEA notice and limitations. The Act changes the time period for filing an ADEA action. There is now a requirement that the EEOC notify an aggrieved person if it dismisses a charge or if it otherwise terminates proceedings related to a charge. A civil action may then be brought against the respondent named in the charge within 90 days of receiving the EEOC notice.14 This change eliminates the two-year statute of limitations for non-willful violations and three-year of statute of limitations for willful violations. They are now both governed by the same 90 day period.

Expert witness fees. The Attorney's Award Act of 1976 has been amended by the Act to provide that expert fees may be awarded as part of an award of attorney's fees to a prevailing party.15

The Act does provide a variety of other miscellaneous provisions such as education and outreach, a glass ceiling commission, encouragement of alternative means of dispute resolution and a requirement that the EEOC create a technical assistance training institute whose mission is to provide assistance and training to employers regarding compliance with the equal employment laws.

1. 42 U.S.C. § 1981a.
   
   
2. 42 U.S.C. §§ 1981 a(b).
   
   
3. 42 U.S.C. §§ 1981 a(c).
   
   
4. 491 U.S. 164 (1989).
   
   
5. 42 U.S.C. § 1981(b).
   
   
6. 42 U.S.C. § 2000e-2(k)(1)(A)(i).
   
   
7. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
   
   
8. 42 U.S.C. § 2000e-(l).
   
   
9. 42 U.S.C. § 2000e-2(m).
   
   
10. 42 U.S.C. § 2000e-5(g)(2)(B).
    
    
11. 42 U.S.C. § 2000e-2(n)(1).
12. 42 U.S.C. § 2000e-1, 42 U.S.C. § 12112(c).
    
    
13. 42 U.S.C. § 2000e-5(e)(2).
    
    
14. 29 U.S.C. § 626(e).
    
    
15. 42 U.S.C. § 1988(c).