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The Civil Rights Act 1991

The Civil Rights Act of 1991, which amended Title VII of the Civil Rights Act 1964, was passed by Congress at least in part as a reaction to the decision made in Wards Cove Packing Company. This Act returned much of the burden of proof to the defendant and redefined the meaning of ‘business necessity’ for selection procedures. Specifically, the legislation restored both the shifting burden of proof and the legal definition of business necessity as decided in Griggs v. Duke Power Company (Bellenger & Yusko, 2015).

Furthermore, the Act enabled victims of intentional discrimination to sue for punitive damages in addition to previously sanctioned compensatory damages. In addition, employers were not allowed to create normed scores by adjusting test scores according to subgroups of job candidates (i.e., developing separate scores for groupings based on race, sex, colour, religion or national origin) or use different cut scores for these subgroups. This final provision was of particular importance as it addressed a practice many organizations had been following up to this point. In an attempt to promote diversity in their selection procedures, many organizations had used race norming by creating separate lists of candidates based on demographics and selecting the top candidates from those lists. This practice allowed organizations to select the desired number of candidates from each particular demographic, but did not ensure that the selection procedures being used did not have an adverse impact. As such, this provision addressed a major issue in perceptions of fairness by making race-norming illegal.

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