In Wards Cove Packing Co. v. Atonio (1989), a five-member Court majority implicitly overturned its earlier interpretation of Title VII of the 1964 Civil Rights Act in Griggs v. Duke Power Co. (1971) and held that the burden of proving that a defendant company's employment practice discriminates against a protected group always remains with the plaintiff and does not shift to the defendant. In this act, Congress rejects the Court's holding in Wards Cove and places the burden of proving that its employment practices do not discriminate squarely on the defendant.

SECTION 1. SHORT TITLE

This Act may be cited as the "Civil Rights Act of 1991."

SEC. 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.

SEC. 3. PURPOSES

The purposes of this Act are-

1. to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace;
2. (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
3. 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.

SEC. 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 retraining program, including an on-the-job training program, or Federal entity subject to section 717."

SEC. 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 decisionmaking process are not capable of separation for analysis, the decisionmaking 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 [the date of Wards Cove], with respect to the concept of ‘alternative employment practice.’"