Remedies

• Pages: 193-209
• Author: George Rutherglen

193

Chapter 9

REMEDIES

Once a violation of Title VII has been established, the plaintiff’s

case moves from allegations and evidence of discrimination to the

need to devise appropriate remedies for the violations of the law that

have already been found. The issue is no longer whether the

defendant is liable, but by how much and for which remedies. The

burden of proof undergoes a corresponding shift, from being

primarily on the plaintiff to falling primarily on the defendant.

Subject to only a few exceptions, the plaintiff is now presumed to be

entitled to a broad array of remedies and the defendant subject to

equally broad liability.

For reasons having to do more with history than logic, Title VII

initially authorized only judicially ordered equitable relief. Such

relief could take the monetary form of back pay, but not damages,

which can be awarded in federal court only if accompanied by the

right to jury trial. Both damages and the right to jury trial were made

available under Title VII only by the Civil Rights Act of 1991.

1

That

act extended to Title VII the remedy of damages available under the

Reconstruction civil rights acts, particularly section 1981, fi rst

enacted in the Civil Rights Act of 1866.

2

This right to damages carries

with it the right to jury trial, which can be invoked by either party.

Unlike damages under section 1981, however, damages under Title

VII are subject to caps, depending on the size of the employer. In

another, more complete analogy to the Reconstruction civil rights

acts, attorney’s fees have always been available to prevailing

plaintiffs under Title VII.

3

This remedy has obviously increased both

the total liability of defendants and the net recovery of plaintiffs

under Title VII. But more importantly, the availability of attorney’s

fees has also affected the incentives of attorneys to represent

plaintiffs under Title VII and to pursue claims on their behalf.

This chapter will take up each of these types of relief in turn:

equitable remedies, legal remedies, and attorney’s fees. Each reflects

the trend toward granting ever more complete relief under Title VII.

This abstract principle is easily stated and admits of only a few

qualifications, although its application to any concrete case in

computing an award of back pay or damages or in formulating an

injunction can become quite complicated. Moreover, because Title VII

1

42 U.S.C. § 1981a (2018).

2

42 U.S.C. § 1981 (2018).

3

§ 706(k), codified as 42 U.S.C. § 2000e–5(k) (2018).

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REMEDIES

Ch. 9

provides the model for other laws against employment

discrimination, the remedies available under Title VII, and the

issues that they raise, largely determine the scope and nature of

relief under these other statutes.

A. Equitable Remedies

Equitable remedies can take a variety of forms, from injunctions

prohibiting future discrimination or restructuring employment

practices, to individual awards of back pay and seniority. The early

predominance of equitable relief in the enforcement of Title VII

resulted from the presumed disadvantages of jury trial. As originally

enacted, Title VII authorized only “equitable relief,” taking the

traditional equitable form of the injunction as the model for most

remedies, but also including monetary relief in the form of back pay.

4

Following the practice in equity, the nature and amount of the

remedies awarded were left to the discretion of the district court.

Allocating these issues to the court necessarily took them away from

the jury, along with any role in adjudicating the underlying claims of

discrimination. This removed the possibility of jury nullification,

thought to be a significant threat in the South in the years

immediately after enactment of Title VII. Although damages are now

available to remedy violations of Title VII—and with them, the right

to jury trial—questions about the nature and amount of equitable

relief continue to dominate the remedial phase of Title VII cases.

In all its forms, equitable relief is presumptively available to any

proven victim of discrimination. A finding that the defendant has

violated Title VII justifies the issuance of an injunction against the

discriminatory practice,

5

absent changed circumstances that would

make an injunction inappropriate.

6

A finding of violation also

justifies the award of compensatory relief to individual victims of

discrimination. As the Supreme Court has said of back pay, it “should

be denied only for reasons which, if applied generally, would not

frustrate the central statutory purposes of eradicating

discrimination throughout the economy and making persons whole

for injuries suffered through past discrimination.”

7

This principle, which is fundamental to the remedial phase of

Title VII cases, stands in marked contrast with the discretion

traditionally accorded to trial judges in formulating equitable relief.

It is explicable, however, by the complications that inevitably attend

any attempt to devise full compensatory and deterrent relief in a

4

This provision is now found in § 706(g)(1), codified as 42 U.S.C. § 2000e–

5(g)(1) (2018).

5

International Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977).

6

Albemarle Paper Co. v. Moody, 422 U.S. 405, 436 (1975).

7

Id. at 421.