1. 1) What are the purposes of the CRA-91? 2) How are the terms "business necessity" and "job relatedness" defined? 1)What is the burden of proof in adverse impact cases (including the “particularity” requirement?) 4) What does the Act say about proof required for on-the-job (race) bias cases? 5) What does the Act say about challenges to existing consent decrees? 6)What does the Act say about challenges to seniority systems? 7) What are the requirements and conditions in mixed-motive cases? 8) What are the limitations for damages under the Act? 9) What does the Act say about jury trial demands and expert witness fees? 10) What does the Act say about the adjustment of test scores? Civil Rights Act of 1991 --- Key Questions

2. PURPOSES SEC. 3 [42 U.S.C. 1981 note] The purposes of this Act are- (1)to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace; (2) to codify the concepts of “business necessity” and “job related” enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); (3) to confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and (4) 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. 1) What are the purposes of the CRA-91? 2) How are the terms "business necessity" and "job relatedness" defined? Codify: n. To arrange and label a system of laws; to organize into a code or system, such as a body of law. Codified [adj]: Enacted by a legislative body; "statute law"; "codified written laws." Earlier purpose statement: S. 1745: "...to overrule the proof burdens and meaning of business necessity in Wards Cove Packing Co. v. Atonio and to codify the meaning of business necessity used in Griggs v. Duke Power Co...."

3. SIOP Statement (in letter to Augustus Hawkins, May 4, 1990) “The term “required for business necessity” means shown to be (1) predictive of or significantly correlated with work behaviors comprising the job or relevant to the job or job family for which the procedures are in use, or (2) representative of the content of one or more important components of the job.”

4. Previous job-relatedness definitions in bills: First Danforth-Kennedy proposal (Spring 1990): " substantial and demonstrable relationship to effective job performance." S. 2104 (original bill in 1990): " essential to effective job performance." Bill passed by Senate in 1990: " significant relationship to successful performance of the job." S. 1208: "manifest relationship to requirements for effective job performance” Previous court definitions of job-relatedness and business necessity: Griggs: “Any given requirement must have a manifest relationship to the employment in question.” Dothard v. Rawlinson: “… essential to effective job performance” EEOC v. Atlas Box Co.: “The procedure must measure … important skills, abilities, and knowledge that are necessary for the successful performance of the job.” Background on Purpose and Definitions

5. (1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity ; or (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice. SEC. 2000e-2. [Section 703] 3) What burdens exist for plaintiff and companes in adverse impact cases? SEC. 2000e. [Section 701] (m) The term “demonstrates” means meets the burdens of production and persuasion. Was worded as “results in” within the 1990 version

6. Step 1: The challenger must identify a particular employment practice that caused the discrimination in question (disproportionately excludes protected group members) Step 2: The company must demonstrate that the challenged practice is job related and consistent with business necessity Step 3: The challenger must prove that an equally valid, job-related practice exists with less (or no) adverse impact ~ Adverse Impact Process (after CRA 1991)~ If the plaintiff can demonstrate that the elements of a decision- making process are not capable for separation, the process may be analyzed as a whole “Demonstrate” means the burden of both production and persuasion (e.g., prove)

7. PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT OF CONTRACTS SEC. 101 Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended- (1) by inserting “(a)” before “All persons within”; and (2) by adding at the end the following new subsections: “(b) For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 4) What does the Act say about proof required for on-the-job (race) bias cases? >>> Overturns the SC decision in Patterson v. McClean Credit Union (1989)

8. 6) What does the Act say about challenges to seniority systems? SEC. 2000e-5. [Section 706] (e)(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system. >>> Overturned Lorance v. AT&T (1989) 5) What does the Act say about challenges to existing consent decrees? (n)(1)(B) (i) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) a reasonable opportunity to present objections to such judgment or order; or (ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact. >>> Overturned Martin v. Wilkes (1989) City of Birmingham agreed to specific hiring and promotion goals (consent decree) White firefighters claimed that, by following consent decrees, the City engaged in race discrimination in making decisions (alleging Title VII and 14 th Amendment violations). Asserted they were being denied promotions in favor of less qualified black firefighters) SEC. 2000e-2. [Section 703] Consent decrees cannot be challenged if a person had ---

9. (m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices. Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. 7) What are the requirements and conditions in mixed-motive cases?

10. D AMAGES IN CASES OF INTENTIONAL DISCRIMINATION SEC. 102 “(3) LIMITATIONS. - The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party – “(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000; “(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and “(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and “(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. 8) What are the limitations for damages under the Act?

11. Compensatory damages: Damages are awarded to compensate a complaining party for losses or suffering inflicted due to the discriminatory act or conduct. Damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action) Punitive damages (a.k.a. exemplary damages): Damages awarded to punish the respondent and to deter future discriminatory conduct. They are not available against a federal, state, or local government, a government agency, or a political subdivision. Punitive damages are available only where the respondent acted with "malice or with reckless indifference to the federally protected rights of an aggrieved individual."

12. “(c) JURY TRIAL. – If a complaining party seeks compensatory or punitive damages under this section -“(1) any party may demand a trial by jury; and “(2) the court shall not inform the jury of the limitations described in subsection (b)(3). AUTHORIZING AWARD OF EXPERT FEES SEC. 113(a) REVISED STATUTES. - Section 722 of the Revised Statutes is amended- (1) by designating the first and second sentences as subsections (a) and (b), respectively, and indenting accordingly; and (2) by adding at the end the following new subsection: “(c) In awarding an attorney’s fee under subsection (b) in any action or proceeding to enforce a provision of section 1977 or 1977A of the Revised Statutes, the court, in its discretion, may include expert fees as part of the attorney’s fee.” [42 U.S.C. 1988] 9) What does the Act say about jury trial demands and expert witness fees?

13. SEC. 2000e-2. [Section 703] (l) Prohibition of discriminatory use of test scores. It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. 10) What does the Act say about the adjustment of test scores?