Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.
Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent manifestations of judicial decisionmaking that has disadvantaged civil rights and employment discrimination plaintiffs over the past fifteen years. Moreover, the determinations encompass restrictive interpretations by the Supreme Court and lower federal courts of the Federal Rules of Civil Procedure, fee-shifting legislation, and procedural provisions in civil rights and employment discrimination statutes.
In short, the whole picture for civil rights and employment discrimination litigation has been more than the sum of the procedural parts. The federal judiciary's decisionmaking has adversely affected civil rights and employment discrimination plaintiffs, who Congress intended to serve as private attorneys general, but whose lack of resources for litigating often makes them risk averse. Because these judicial determinations threatened the progress that minorities and women have achieved through litigation, Congress enacted the new civil rights and employment discrimination legislation which rectifies or ameliorates certain procedural difficulties faced by civil rights and employment discrimination plaintiffs. Unfortunately, Congress did not treat a number of important procedural problems that significantly disadvantage civil rights plaintiffs. This essay addresses those omissions.
The article initially examines procedural developments that have detrimentally affected civil rights plaintiffs over the last decade and a half. The piece then analyzes the Civil Rights Act of 1991, emphasizing how that measure fails to remedy numerous procedural complications which confront these plaintiffs. Accordingly, the essay affords suggestions for additional change that would respond to the procedural difficulties which remain.
Carl Tobias, Civil Rights Procedural Problems, 70 Wash. U. L. Q. 801 (1992)