Civil Rights Act of 1991

The Civil Rights Act of 1991 sought to end confusion arising from differing provisions of the Civil Rights Act of 1866, also called Section 1981, and the Civil Rights Act of 1964. The former barred disrimination based solely on race and color, while the latter added the protected categories of sex, religion and national origin. More significantly, Section 1981 allowed for jury trials (though the act went unenforced for a century), and the 1964 Civil Rights Act allowed only for court trials since the authors assumed Southern juries would be biased. Finally, the earlier law provided for relief only in the form of back pay, reinstatement and injunctions against further misconduct but not for attorneys' fees.

Thus individuals seeking legal action for different types of discrimination were subject to different rules. Several court cases sought to reconcile Section 1981 and the Civil Rights Act of 1964, but these decisions in turn established various legal hurdles based on language in Section 1981 and also shifted the burden of proof to the employees (plaintiffs).

The final compromise version of the Civil Rights Act of 1991 ended up allowing for jury trials while leaving employees with most of the burden of proof. Basically, the act allows employers to show that their alleged discriminatory employment decision would still have been made in the absence of any discriminatory intent. This then becomes a defense against backpay, reinstatment and other remedies but not against overall liability, unless the plaintiff can show an actual negative impact in wages or other outcomes. In short, employers could get off most of the hook by showing their decision was not based solely on discriminatory intent, but they would still be liable for paying all attorneys' fees, fixing the loophole in Section 1981.