Retroactivity of the Civil Rights Act of 1991
| Publication year | 1993 |
| Pages | 2401 |
1993, November, Pg. 2401. Retroactivity of the Civil Rights Act of 1991
One of the most divisive issues before the federal courts is whether the Civil Rights Act of 1991 ("Act")(fn1) should be applied retroactively and, if so, to what extent. This issue has caused so much conflict because the Act, signed into law on November 21, 1991, permits plaintiffs to claim compensatory and punitive damages for discrimination based on sex, race or disability and to demand a jury trial when such damages are sought.(fn2)
Because so much is at stake, invocation of the Act is invariably hotly contested. Courts have considered legislative history, statutory language, administrative guidelines and other federal precedent to reach their own, often conflicting, decisions.
In passing the Act, Congress intended to reverse U.S. Supreme Court precedent, which was seen by many as too harsh against plaintiffs seeking redress for employment discrimination.(fn3) The Democratic and Republican parties agreed that the judicial system had to be more receptive to such cases. However, they did not agree with respect to retroactivity.
The Republicans argued for prospective application, while the Democrats advocated retroactivity.(fn4) Ultimately, Congress agreed to disagree, passing the Act with imprecise language and intentionally leaving the courts to struggle with the issue.(fn5) As a result, nearly every court which has considered the issue has turned to, and then abandoned as useless, a review of the Act's legislative history.(fn6)
The language causing so much confusion is found in § 402(a) of the Act, which provides that
[e]xcept as otherwise specifically provided, this Act and the amendments made by this Act shall take effect up on enactment.(fn7)
Despite the ambiguous language, a few courts claim to have ascertained Congress' intent with respect to retroactivity.
In Davis v. City and County of San Francisco, the Ninth Circuit held that the language of the Act reveals Congress' clear intention that the majority of the Act's provisions be applied to cases pending at the time of its passage.(fn8)
However, in Fray v. Omaha World Herald Co., the Eighth Circuit held that when a bill mandating retroactivity fails to pass, and a law omitting that mandate is then enacted, "the legislative intent was surely that the new law be prospective only. . . ."(fn9)
Nevertheless, the majority of courts have abandoned statutory interpretation in favor of other precedent.
Citing the absence of clear legislative intent, many courts have relied on the EEOC's pronouncement that it would not seek damages under the Act for events occurring before November 21, 1991.(fn10) However, the EEOC has recently voted to rescind the pronouncement. Although a subsequent internal memorandum issued by the EEOC chairman declared the vote invalid, the future of the pronouncement is unclear.(fn11)
Most courts addressing the issue have relied on general U.S. Supreme Court precedent discussing the retroactivity of statutes. Nevertheless, they have reached conflicting results. For example, in Bowen v. Georgetown University Hospital,(fn12) the Supreme Court suggested that legislation will not have retroactive effect unless the language specifically provides for it, as retroactivity is not favored in the law. Most federal courts relying on Bowen deny retroactivity.(fn13)
However, the Supreme Court also has issued an opinion which contradicts Bowen in Bradley v. Richmond School Board. In Bradley, the Court stated:
[A] court is to apply the law in effect at the time it renders a decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.(fn14)
Courts following Bradley usually allow retroactive application of the statute.(fn15)
Several cases specifically addressing retroactivity of the Act have reached the Supreme Court, which has yet to rule on this issue.(fn16) However, the Court recently announced that it will review two federal circuit court rulings on retroactivity(fn17)---Rivers v. Roadway Express, Inc.(fn18) and Landgrafv. USI Film Products.(fn19)
Rivers is a Sixth Circuit decision holding that...
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