The 1991 Civil Rights Act, which was passed by a Democratic congress and, with some reluctance, signed into law by President Bush, overturned the decision in Ward´s Cove packing v. Atonio by limiting the ability of employers to use “business necessity” as a defense against discrimination claims under Title VII. It also overruled the court’s decision in Patterson v. McLean Credit Union where the court had invalidated a black woman’s attempt to seek relief from racial harassment under the 1866 Civil Rights Act.

These developments have led to different approaches to legitimize affirmative action implementation. In addition, indicators for monitoring the proportionality and constitutionality of affirmative action policies have been developed.