@077 CHAP 5 旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴커 � NEW CIVIL RIGHTS LAWS � 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴켸 The new federal Civil Rights Act of 1991 (CRA91), which im- mediately became effective upon enactment on November 29, 1991, is certain to make life a lot more complicated for all covered employers in the area of employment practices. The new law's most controversial aspect will be in the "disparate impact" cases, where a company's employment practices, although not shown to be intentionally discrim- inatory, have a "disparate" (unequal) impact on employment of protected groups. For example, if a company is located in an area where 80% of the population consists of Native Americans, but only 5% of its employees are Native Americans, there may be grounds for a "disparate impact" discrimination claim against the employer, under prior civil rights law as well as these new CRA91 provisions, regardless of employer intent. The huge difference that CRA91 will make in these "disparate impact" cases is that under prior law, the Supreme Court has held that the burden of proof is upon the employees who allege discrimination, to identify a particular business practice of the employer that resulted in the disparity. Under the new law, by contrast, the employees are relieved of this burden of proof if they can simply show that the employer failed to select an alternative employment prac- tice (such as hiring quotas) that would not have had a "disparate impact" -- that is, that would not have had a negative impact on the minority or other protected group. Instead, the burden of proof in these cases is now shifted to the employer to show that the challenged employment practice (regarding hiring, promotions, pay, or other as- pects of employment) is "job-related for the position in question and consistent with business necessity" (whatever the courts ultimately decide that means). It is the vagueness of this part of the new civil rights law that President Bush initially expressed concerns over, arguing that many firms would find it easier to simply adopt minority hiring quotas than to attempt to prove the "business necessity" defense in court. There are no easy answers as to what policy a company should adopt in this regard, but it does seem reasonably clear that the only safe way to avoid discrimination suits under the new law may be to adopt some sort of quota system, despite the issues of unfairness and possible employee morale problems that the use of hiring quotas sometimes entails. CRA91 also considerably expands the monetary damages that can be awarded in cases of intentional discrimination. Be- fore, an employer who lost such a discrimination suit was usually liable only for back pay, front pay, lost benefits, attorney's fees and court costs. Now, under CRA91 (which may even be retroactive in effect), compensatory damages may also be allowed in addition to other monetary damages. CRA91 also overrides a Supreme Court case that had limited fees recoverable by a claimant for expert witness fees to the flat $40 limit for "fact" witnesses. In light of the foregoing changes in the Civil Rights Act of 1991, the odds, as well as the costs, of losing a discrimi- nation action have been increased significantly for employ- ers, and the new rules will make it much more attractive for plaintiffs to file such suits, both for claims of in- tentional discrimination and in "disparate impact" cases. Employers can now expect a great many more such claims to be filed, as a result. @IF015xx]Thus, however fair you may feel your firm's employment prac- @IF015xx]tices are, your firm is large enough to be subject to the @IF015xx]Civil Rights Act, so this may be a good time to consult an @IF015xx]attorney who is familiar with employment discrimination mat- @IF015xx]ters to find out what, if any, steps you may need to take to @IF015xx]protect your business from liability in this area, since the @IF015xx]amount of such litigation is going to expand significantly. @IF015xx]Because your company has over 14 employees, almost all of the @IF015xx]Civil Rights laws apply to @NAME. @IF015xx] @IF100xx]This includes EEO reporting requirements, since you have 100 @IF100xx]or more employees. @IF100xx] @IF014xx]NOTE: Most of the foregoing problems don't apply to your @IF014xx]business at present, since most of the Civil Rights laws do @IF014xx]not apply to firms that have fewer than 15 employees, such @IF014xx]as @NAME. @IF014xx] @IF001xx]You have only one employee, so with very limited exceptions, @IF001xx](such as being a company with federal contracts), you don't @IF001xx]have to worry much about Civil Rights regulations impacting @IF001xx]your business. @IF000xx]You have no employees, so the above discussion will only be- @IF000xx]come relevant to you when your business expands and begins @IF000xx]hiring employees. @IF201xx]NOTE: Any firm which has more than one employee (you have @IF201xx]@EMP) is subject to the provisions of the Equal Pay Act.