On October 22, 1990 President Bush vetoed the Civil Rights Act of 1990.2 The Senate failed by one vote to override the veto.' The Act embodied the congressional response to a series of 1989 United States Supreme Court cases decided by a new conservative majority of Justices. Finding that these decisions drastically limit civil rights protections, Congress accordingly introduced the Civil Rights Act of 1990 to restore those protections. Congress then spent almost a year refining the controversial bill to make it palatable to the President and the business community. Despite congressional efforts, the President op- posed several aspects of the bill and, in conjunction with his veto, proposed his own version of the legislation for congressional consideration. Because the bill was couched in civil rights terms, its proponents branded opponents of the bill, including the President, as hostile to civil rights. Unfortunately, the rhetoric that accompanied discussion of the bill in both Congress and the media obscured the complex and technical legal issues addressed in the bill. Despite the veto of the bill in 1990, Congress clearly is not ready to concede defeat. Likewise, the President remains willing to enact a civil rights bill if a compromise can be reached.
This Note examines the most controversial issues raised by the defeated legislation and proposes compromise solutions that would increase the probability of agreement in the future. Part II analyzes the dispute over the disparate impact theory of discrimination by tracing the evolution of the doctrine in the courts, which culminated in the controversial Wards Cove Packing Co. v. Atonio decision, and identifying the most divisive issues such as allocation of burdens of proof, the definition of business necessity, and specificity requirements. Part II also outlines the responses of Congress and the President to Wards Cove and proposes a restructuring of disparate impact analysis that would serve the interests of both plaintiffs and employers.
Part III examines the problem with equitable remedies under Title VII of the Civil Rights Act of 196413 (Title VII) and the solutions pro- posed by Congress and the President. Part III also discusses the applicability of section 1981 of Title 42 of the United States Code to employment discrimination cases, describes its emasculation by the Supreme Court in Patterson v. McLean Credit Union, and analyzes the attempts of Congress and the President to overturn Patterson. Part III then proposes a partial solution to resolve the debate over Title VII remedies.
Part IV addresses the controversy over consent decrees and the impermissible collateral attack doctrine. Part IV focuses on the demise of the collateral attack doctrine in Martin v. Wilks and the response of Congress and the President to Wilks. Part IV then proposes an alternative solution. Finally, Part V addresses the controversy over the attorney's fee provisions in the Act. The controversy concerns both waiver of attorney's fees in settlement agreements and third-party liability for plaintiffs' fees when the third party challenges a judgment or order. This Note concludes that although Congress will face formidable obstacles in fashioning a successful compromise bill, it can construct a civil rights bill that all parties will accept by giving weight to important civil rights interests without compromising competing societal concerns.
Cynthia L. Alexander,
The Defeat of the Civil Rights Act of 1990: Wading Through the Rhetoric in Search of Compromise,
44 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol44/iss3/5