Employment Discrimination: An Overview of the 1989 Supreme Court Term

Abstract

Many of you have seen or heard in the media much discussion about last term's employment discrimination cases. Indeed, last term there was an extraordinary amount of activity in the Supreme Court on employment discrimination. The Court decided four separate cases under Title VII1 (which prohibits employment discrimination) and two cases under related laws. One of those concerned the Equal Protection Clause of the Constitution, and the other involved 42 U.S.C. § 1981, which prohibits discrimination in contractual relations on the basis of race. With all this activity, it does seem like a lot of new law. In fact, however, only one of these six cases announced a significant change in the law. All of the other decisions were continuations of developments that have been occurring for the past five years or more. These were essentially incremental changes in the law, and were quite predictable on the basis of what the Court had been doing for some time. So, despite the media claims, and despite the sheer number of employment discrimination cases before the Court last term, there has not yet been a conservative counterrevolution in employment discrimination law, nor have there yet been major cutbacks in at least the employment aspects of civil rights law.