Reflections on the Supreme Court's 1988 Term: The Employment Discrimination Decisions and the Abandonment of the Second Reconstruction

Abstract

Eight decisions of the 1988 Term effectively rewrote Title VII of the Civil Rights Act of 1964 and threatened to undo the significant gains in equal employment opportunity that had been achieved since its enactment. Established modes of proof, theories of recovery, entitlement to attorneys’ fees, and the enforceability of affirmative action decrees were all significantly altered in ways that advantaged employers and burdened plaintiffs. Congress would later respond with the Civil Rights Act of 1991, restoring and even extending the protections for minorities and women.