In 1991, Title VII was amended 96 in response to the United States Supreme Court's decision in Ward's Cove Packing Co. v. Antonio.97 In Wards Cove, the Court weakened the scope and effectiveness of federal civil rights protections by requiring an employment discrimination plaintiff to identify the specific employment practice that is challenged, and to illustrate how that practice creates a "disparate impact."98 After the plaintiff satisfies this burden, the Court explained that the employer would receive an opportunity to rebut the prima facie case by demonstrating that the challenged practice serves, in a significant way, legitimate employment interests.99 In summary, the Court determined that under a disparate impact theory of employment discrimination, the ultimate burden of proof is on the plaintiff.100
Congress amended Title VII to require an employer to justify its employment practices that caused a disparate impact.101 This amendment was intended to overrule Wards Cove.102 In effect, then, after the plaintiff demonstrates that an employment practice has a disparate impact, typically through the use of statistical data, the entire burden of proof shifts to the employer.
The Act also provides that a demonstration of business necessity will no longer protect an employer engaging in intentional discrimination.103 Thus, by shifting the burden of proof, Congress reaffirmed its interest in requiring employers to maintain equal employment opportunity by eschewing employment practices having discriminatory effects.
Overall, nothing in the federal statutes requires a private firm to incorporate affirmative action programs into its employment strategy. The private sector can only be required to undertake affirmative action when ordered by a court, upon a finding that the employer engaged in intentional discrimination.104 Upon such a finding, a court will have authority to order the non complying firm to take "affirmative action" to remedy the situation.105 Therefore, Congress intended Title VII to prohibit...