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Civil Rights Act of 1991

Public Law 102-166
An Act
 
To amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.
 
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
 
SECTION 1. SHORT TITLE.
This Act may be cited as the "Civil Rights Act of 1991".
 
SECTION 2. FINDINGS.
The Congress finds that
(1) additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace;
 
(2) the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) has weakened the scope and effectiveness of Federal civil rights protections; and
 
(3) legislation is necessary to provide additional protections against unlawful discrimination in employment.
 
SECTION 3. PURPOSES.
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.
 
TITLE I FEDERAL CIVIL RIGHTS REMEDIES
 
SECTION 101. PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT OF CONTRACTS.
 
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.  
   
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.  
 
SECTION 102. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION.
The Revised Statutes are amended by inserting after section 1977 (42 U.S.C. 1981) the following new section:
 
SECTION 1977A. Damages in Cases of Intentional Discrimination in Employment.
(a) Right of Recovery.
(1) Civil Rights. In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e - 5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e - 2 or 2000e - 3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.  
   
(2) Disability. In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C.12117(a)), and section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and the regulations implementing section 501, or who violated the requirements of section 501 of the Act or the regulations implementing section 501 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.  

(3) Reasonable Accommodation and Good Faith Effort. In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 or regulations implementing section 501 of the Rehabilitation Act of 1973, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.  
 
(b) Compensatory and Punitive Damages.
(1) Determination of Punitive Damages. A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.  
   
(2) Exclusions From Compensatory Damages. Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.  
   
(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.  
   
(4) Construction. Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1977 of the Revised Statutes (42 U.S.C. 1981).  
   
(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).  
   
(d) Definitions. As used in this section:
(1) Complaining Party. The term 'complaining party' means  
(A) in the case of a person seeking to bring an action under subsection (a)(1), the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or  
   
(B) in the case of a person seeking to bring an action under subsection (a)(2), the Equal Employment Opportunity Commission, the Attorney General, a person who may bring an action or proceeding under section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).  
 
(2) Discrimination Practice. The term 'discriminatory practice' means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a).  
   
SECTION 103. ATTORNEY'S FEES.
The last sentence of section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting "1977A" after "1977".
 
SECTION 104. DEFINITIONS.
Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is amended by adding at the end the following new subsections:
(l) The term 'complaining party' means the Commission, the Attorney General, or a person who may bring an action or proceeding under this title.
 
(m) The term 'demonstrates' means meets the burdens of production and persuasion.
 
(n) The term 'respondent' means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retaining program, including an on-the-job training program, or Federal entity subject to section 717.
 
SECTION 105. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
(a) Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e -2) is amended by adding at the end the following new subsection:
 
(k)
(1)  
(A) An unlawful employment practice based on disparate impact is established under this title 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.  
   
(B)  
(i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.  
 
(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.  
 
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of 'alternative employment practice'.  
 
(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this title.  
   
(3) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.  
 
(b) No statements other than the interpretive memorandum appearing at Vol. 137 Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall be considered legislative history of, or relied upon in any way as legislative history in construing or applying, any provision of this Act that relates to Wards Cove Business necessity/cumulation/alternative business practice.
 
SECTION 106. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES.
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by section 105) is further amended by adding at the end the following new subsection:
 
(1) 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, 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.
 
SECTION 107. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.
(a) In General. Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by sections 105 and 106) is further amended by adding at the end the following new subsection:
 
(m) Except as otherwise provided in this title, 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.
 
(b) Enforcement Provisions. Section 706(g) of such Act (42 U.S.C. 2000e-5(g)) is amended
(1) by designating the first through third sentences as paragraph (1);  
   
(2) by designating the fourth sentence as paragraph (2)(A) and indenting accordingly; and  
   
(3) by adding at the end the following new subparagraph:  
 
(B) On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court  
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m); and  
   
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).  
 
SECTION 112. EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORY SENIORITY SYSTEMS.
Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended
(1) by inserting "(1) before "A charge under this section"; and
 
(2) by adding at the end the following new paragraph:
 
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 title (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.  
 
SECTION 113. AUTHORIZING AWARD OF EXPERT FEES.
(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.  
 
(b) Civil Rights Act of 1964. Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) is amended by inserting "(including expert fees)" after "attorney's fees".
 
SECTION 115. NOTICE OF LIMITATIONS PERIOD UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967.
Section 7(e) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(e)) is amended
(1) by striking paragraph (2);
 
(2) by striking the paragraph designation in paragraph (1);
 
(3) by striking "Sections 6" and inserting "Section"; and
 
(4) by adding at the end the following:
 
If a charge filed with the Commission under this Act is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 11(a) against the respondent named in the charge within 90 days after the date of the receipt of such notice.  
 
SECTION 116. LAWFUL COURT ORDERED REMEDIES, AFFIRMATIVE ACTION, AND CONCILIATION AGREEMENTS NOT AFFECTED.
Nothing in the amendments made by this title shall be construed to affect court ordered remedies, affirmative action, or conciliation agreements, that are in accordance with the law.
 
SECTION 118. ALTERNATIVE MEANS OF DISPUTE RESOLUTION.
Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini trials, and arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.

Last updated: 03/04

 
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