CRS Issue Statement on Civil Rights and Discrimination

CRS Issue Statement on Civil Rights and Discrimination

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CRS Issue Statement on Civil Rights and
Discrimination
Jody Feder, Coordinator
Legislative Attorney
January 14, 2010
Congressional Research Service
7-5700
www.crs.gov
IS40265
CRS Report for Congress
P
repared for Members and Committees of Congress

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CRS Issue Statement on Civil Rights and Discrimination

nder federal law, an array of civil rights statutes, as well as several constitutional
provisions, are available to protect individuals from discrimination. Notably, the types of
U discrimination that these laws prohibit and the circumstances under which they operate
vary considerably. Whether to amend these statutes and how to respond to constitutional
developments in this area are two important questions that will confront the second session of the
111th Congress as it considers whether it wishes to expand or contract the civil rights of protected
individuals.
One civil rights issue in which Congress has demonstrated a long-standing interest is race
discrimination, and the 111th Congress is no exception. For example, Congress is likely to remain
interested in affirmative action issues and may wish to consider additional strategies to promote
minority opportunity in jobs and governmental contracting. In the wake of a Federal Circuit
ruling curtailing the use of minority contracting preferences, Congress may also wish to consider
legislative changes that encourage constitutionally permissible methods of promoting racial
diversity in government programs. Meanwhile, in light of various discrimination lawsuits filed
against the U.S. Department of Agriculture by black, Native American, Hispanic, and female
farmers, Congress may also wish to consider legislative options for assisting minority farmers
who may have suffered discrimination when seeking to obtain farm loans.
Issues involving sex discrimination are also high on the congressional agenda. For example, some
Members have a longstanding concern about the comparatively low pay of women and the pace
at which the gender wage gap has shrunk, and the 111th Congress has already taken significant
action on two bills relating to such pay discrimination. One of these bills, which would amend the
Equal Pay Act, has passed the House of Representatives and may be taken up by the Senate
during the second congressional session. The other bill, the Lilly Ledbetter Fair Pay Act of 2009,
has already been enacted into law. This legislation supersedes the controversial 2007 Supreme
Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., that made it more difficult for
employees to sue for pay discrimination under Title VII of the Civil Rights Act. The Supreme
Court has also recently issued decisions in at least three other cases involving sex discrimination,
and Congress may wish to continue monitoring legal developments in this area.
In recent years, the debate about the rights and protections that should be afforded to gay people
has been intense, and the second session of the 111th Congress is likely to confront controversial
questions regarding this issue. For example, current employment discrimination laws exclude
sexual orientation as a protected class, and legislation that would amend such laws to cover
sexual orientation passed the House in the 110th Congress and may be taken up again by the 111th
Congress, which has already held several hearings on the proposed Employment Non-
Discrimination Act. Meanwhile, although legal developments regarding same-sex marriage and
same-sex adoption have largely taken place at the state level, Congress may contemplate federal
legislation on these subjects. Congress may also take action on other legislative proposals that
address issues involving sexual orientation, including a bill that would repeal the current ban on
gays in the military, a bill that would extend certain federal benefits to the domestic partners of
federal employees, and a bill that would repeal the Defense of Marriage Act. Finally, the 111th
Congress passed legislation that expands the scope of hate crime statutes to cover crimes based
on sexual orientation or gender identity, and legislators may wish to monitor the implementation
of these amendments.
In addition to these controversial legislative proposals, other civil rights issues may appear on the
congressional agenda during the second session. For example, as a result of the recent Supreme
Court decision in Gross v. FBL Financial Services, Inc., it may be more difficult for employees to
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CRS Issue Statement on Civil Rights and Discrimination

bring claims under the Age Discrimination in Employment Act (ADEA) when age is only one of
several factors motivating an adverse employment decision. As it did in response to the Ledbetter
decision, the 111th Congress may wish to legislatively repeal the Gross decision by amending the
ADEA, and several bills that would do so have been introduced. In addition, the issue of whether
religious organizations that receive federal funds may discriminate on the basis of religion when
hiring has generated significant legislative controversy in recent years and may continue to do so
during the second session of the 111th Congress. Meanwhile, amendments to the Americans with
Disabilities Act were enacted in the 110th Congress to respond to Supreme Court decisions that
limited the definition of disability. Proposed regulations have been published regarding the
definition of disability, and the 111th Congress will continue to be involved in oversight. Congress
may also want to consider reauthorizing the U.S. Commission on Civil Rights, which has been
reauthorized a number of times since its creation in 1957. Although Congress has continued to
appropriate funds for the Commission, its most recent authorization expired on September 30,
1996. Finally, a recent Supreme Court decision restricted the protective scope of Section 2 of the
Voting Rights Act to minority groups that constitute less than half the population of a legislative
district, and this case may result in Congress considering legislation on the topic. This voting
rights decision, as well as many other civil rights issues, may be addressed during the second
session of the 111th Congress.

Issue Team Members

Jody Feder, Coordinator
Garrine P. Laney
Legislative Attorney
Analyst in Social Policy
jfeder@crs.loc.gov, 7-8088
glaney@crs.loc.gov, 7-2518
Cynthia Brougher
Linda Levine
Legislative Attorney
Specialist in Labor Economics
cbrougher@crs.loc.gov, 7-9121
llevine@crs.loc.gov, 7-7756
David F. Burrelli
Alison M. Smith
Specialist in Military Manpower Policy
Legislative Attorney
dburrelli@crs.loc.gov, 7-8033
amsmith@crs.loc.gov, 7-6054
Todd Garvey
Joyce Thorpe
Legislative Attorney
Information Research Specialist
tgarvey@crs.loc.gov, 7-0174
jthorpe@crs.loc.gov, 7-9081
Nancy Lee Jones
Carol J. Toland
Legislative Attorney
Legislative Attorney
njones@crs.loc.gov, 7-6976
ctoland@crs.loc.gov, 7-4659
William J. Krouse
L. Paige Whitaker
Specialist in Domestic Security and Crime Policy
Legislative Attorney
wkrouse@crs.loc.gov, 7-2225
lwhitaker@crs.loc.gov, 7-5477

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