On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991 (the "1991 Act"). After two years of heated debate and compromise, Congress passed a comprehensive civil rights package that promises to strengthen and expand Title VII of the Civil Rights Act of 1964 ("Title VII") and Section 1981 of the Civil Rights Act of 18668 ("Section 1981"), largely by restoring anti-discrimination laws to their pre-1989 status as well as by instituting certain procedural changes for the courts to follow.
The 1991 Act provides access to compensatory and punitive damages, as well as trial by jury, to those alleging intentional discrimination based on religion, sex, national origin, or physical or mental disability. Previously, Title VII only allowed for injunctive relief and the recovery of back pay and attorney fees. The 1991 Act also allows prevailing plaintiffs to recover expert witness fees, extends certain statutes of limitation, changes the burden of proof in "mixed motive" and disparate impact cases, and allows certain challenges to consent degrees. In addition, the 1991 Act expands Section 1981 coverage to include conduct that occurs after the formation of an employment contract by adding causes of action for discrimination in the "performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." For the first time, Title VII jurisdiction is expanded to cover United States citizens employed by American companies while working in foreign countries. ...
The purpose of this Article is to provide an overview of the 1991 Act and how it affects recent decisions of the United States Supreme Court that severely narrowed the protections and remedies previously afforded civil rights claimants. This Article analyzes whether the 1991 Act's provisions should apply to claims existing prior to November 21, 1991 through a review of the legislative history, statutory language, Supreme Court authority addressing the application of statutes to pre-existing claims, and recent decisions of the federal circuit courts that have been confronted with the issue. This Article will conclude that, although there is substantial support for not applying the 1991 Act's provisions to pre-existing claims, the statutory language, the remedial nature of the 1991 Act, the legislative history, and Supreme Court decisions considering the retroactive application of procedural and remedial legislation, weigh in favor of applying most of the 1991 Act's provisions to pre-existing claims.
Jennifer Jolly Ryan, Back to the Future: The Application of the 1991 Civil Rights Act to Pre-Existing Claims, 44 Mercer L. Rev. 911 (1993).