The Evolution of Employment Discrimination Law in the 1990s: A Preliminary Empirical Investigation

Abstract

Two major pieces of employment discrimination legislation were passed in the early 1990s: the 1991 Civil Rights Act and Americans with Disabilities Act. Using some simple regression models, we examine the effects of this legislation on the volume, content, and outcomes of employment discrimination cases filed in federal courts. We find, first, that the volume of discrimination cases nearly doubled between 1992 and 1997, in contrast to a 10% decline during the previous 8 years, and despite a sharply falling unemployment rate that—in the past—would have substantially reduced the amount of litigation. We also observe a significant shift in the composition of suits filed, with race and age discrimination cases declining substantially as a share of the total and sex and disability discrimination cases increasing. We tie these developments, as well as changes in the relationship between plaintiff win rates and the business cycle, to changes in the law that diminish the importance of back-pay damages. We conclude by tentatively suggesting how the meaning of and protection afforded by employment discrimination law have changed over the past 35 years.

This work was completed while Donohue was at Stanford Law School and Siegelman was at Fordham Law School. We benefitted from helpful comments by seminar participants at UConn. Law School, Fordham Law School, the American Bar Foundation, and conference participants at the American Law and Economics Association. Thanks to Katie Bilodeau and Jinhui Pan for excellent research assistance.