A. The Law

The Civil Rights Act of 1991 implemented a series of sweeping changes in federal antidiscrimination laws. The legislation expanded procedural options and remedies available to women and overruled a series of important U.S. Supreme Court decisions that limited employees' legal recourse. In doing so, Congress amended six different statutes that together prohibit discrimination based on race, color, religion, sex, national origin, disability, and age. Those statutes are Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Vocational Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1866 and the Civil Rights Attorney's Fees Awards Act of 1976. Virtually all employers are covered by these laws.

The 1991 Act prohibits discrimination in all aspects of the employment process, including compensation, assignment, classification of employees, demotions, transfers, promotions, wages and working conditions, recruitment, testing, use of company facilities, training programs, fringe benefits, retirement plans, disability leave, hiring, and discharges. An illegal act can be committed by any member of an employer's staff, from the president down to the supervisor and receptionist.

Retaliation and on-the-job harassment are also prohibited. This means that if you file a charge of discrimination in good faith you cannot be fired, demoted, or reassigned while the case is pending. However, if you knew the claim had no merit and filed it in bad faith, you could be fired legally.

Many states have enacted even stronger discrimination laws with greater coverage and penalties. For example, although federal law does not recognize discrimination on the basis of a person's marital status or sexual preference, some state laws do. Thus, it is illegal in some states to fire a female who is a known lesbian. Also, many small employers (defined as companies employing more than 15 persons) not covered by Title VII fall within the jurisdiction of state law. Some local laws offer even greater protection; for example, age discrimination protection may apply to the young as well as those who are over 40, and homosexuals may be protected under local sex discrimination laws.

Counsel Comments:A question frequently asked is: Which law takes precedence? The answer essentially is the law that is the strictest. Thus, to ensure proper protection of your rights, try to be familiar with federal and state laws as well as those governing employment in your local business community or municipality. If there is a difference in coverage on the same subject, seek to enforce the law that is the most favorable to your situation. To learn whether you have greater protection and how it applies, contact an appropriate state or city agency for further details, or speak to a knowledgeable employment lawyer.

Prior to the Civil Rights Act of 1991, claimants typically could only receive their jobs back, together with retroactive job pay and restoration of seniority benefits. Now, in cases where intentional race, sex (including pregnancy), national origin, skin color, religion, or handicap discrimination can be proved, the act also authorizes jury trials, reasonable witness and attorney fees to be paid to the individual harmed, punitive damages, and compensatory damages up to $300,000 depending on the size of the employer. Compensatory damages are defined as money paid to compensate individuals for future pecuniary losses, emotional pain and suffering, inconvenience and mental anguish, loss of enjoyment, and physical pain and suffering. Compensatory damages typically are available only for intentional discrimination and unlawful harassment, and do not apply where a job practice is not intended to be discriminatory but nonetheless has an unlawful disparate impact on women or persons within another protected class, such as workers over 40.

Before we begin an analysis of various forms of discrimination, the following are general rules employers must follow. These rules are recommended by Eric J. Wallach, a New York employment lawyer.

1. All employers must review hiring, promotion, and compensation criteria to ascertain whether they are validly job-related and consistent with business necessity. For example, are there statistical imbalances in the workforce that are directly or indirectly traceable to such standards?
2. Proper documentation, including employment forms, job descriptions, and performance evaluations, must be prepared to adequately support any personnel decisions regarding hiring, promotion, and compensation.
3. Appropriate procedures must be consistently applied in every case, and such decisions must never be made on the basis of a person's sex, race, or religion.
4. Employers with overseas operations must be attentive to whether their managers abroad are enforcing the antidiscrimination laws for all employees who are U.S. nationals.
5. All employment strategies must take into account the demographics of the workplace. Companies must avoid statistical personnel imbalances with regard to women and minorities.
6. Management should consider hiring additional qualified minorities such as females or nonwhites to avoid charges of discrimination.