Author:George Rutherglen

Civil Rights Act of 1991

The Civil Rights Act of 1991 greatly expanded the remedies available under Title VII by authorizing the award of damages for intentional discrimination.[524] With the award of damages, the Act also granted the right to trial by jury.[525] Together these changes moved the litigation of Title VII claims ever closer to the model of personal injury litigation:

More is at stake and more is determined by the jury. The provision that contains these changes was enacted as a separate section of the United States Code, section 1981a, partly because it also extended the same remedies to plaintiffs who alleged discrimination on the basis of disability under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.[526] Partly, too, Congress wanted to emphasize the parallel between actions for damages under Title VII and actions for damages under section 1981, which are, unlike Title VII claims, limited to discrimination on the basis of race or national origin.[527]

Section 1981a establishes a damage remedy for discrimination on the basis of sex, religion, or disability similar to that already available for discrimination on the basis of race or national origin under section 1981.

Despite the parallel with damages under section 1981, section 1981a itself is limited in several respects. First, damages can be recovered under section 1981a only if they cannot be recovered under section 1981.[528] Second, damages under section 1981a are available only for claims of disparate treatment, not for claims of disparate impact.[529]

Third, recovery of punitive damages is available only against private employers and only upon proof that the defendant acted "with malice or with reckless indifference to the federally protected rights of an aggrieved individual.""[530] Fourth, monetary relief that can be recovered under Title VII, mainly in the form of awards of back pay, cannot be recovered under section 1981a.[531] Fifth, the total recovery for future pecuniary damages, nonpecuniary damages, and punitive damages is capped at different amounts depending on the size of the employer, from $50,000 for employers with more than 14 but fewer than 101 employees, to $300,000 for employers with more than 500 employees.[532]

Of these provisions, the most frequently litigated concerns the award of punitive damages, and in particular, the circumstances in which an employer can be held liable for the wrongful acts of its supervisors and other employees. In Kolstad v. American Dental Association,[533] the Supreme Court held that section 1981a does not require proof that the underlying discrimination was egregious. It is sufficient that the employer engaged in discrimination "in the face of a perceived risk that its actions will violate federal law."[534] The Court went on to address the question of exactly who must perceive this risk, among all those who act for an organizational employer. It held that an employer is not vicariously liable for decisions of managerial agents that are contrary to the employer's "'good-faith efforts to comply with Title VII.'"'[535] This standard of vicarious liability is decidedly more favorable to an employer than the analogous standard for most claims of sexual harassment, which imposes absolute liability upon the employer, subject at most to an affirmative defense."[536] Nevertheless, one court has held that punitive damages for sexual harassment can be awarded without an award of compensatory damages.[537]

These limits on damages, while significant, do not impose equally strict limits on the right to jury trial. Awards of back pay and injunctive relief still are made by the judge, because they are forms of equitable relief. Under the Seventh Amendment, however, the judge is bound by the jury's decision on all issues common to the requests for legal and equitable relief.[538] When the plaintiff alleges intentional discrimination, seeks damages, and requests a jury, the issue of liability is submitted to the jury. Only on claims of disparate impact is the issue of liability determined by the judge.

A further limitation on section 1981a is increasingly only of historical interest. It concerns cases that arose before the Civil Rights Act of 1991 became effective on November 21, 1991. In Landgraf v. USI Film Products,"[539] the Supreme Court held that section 1981a does not apply to claims that arose before the Act's effective date. This holding might be generalized to other "substantive" provisions of the Act,[540] but it probably does not apply to "procedural" provisions. The Court relied heavily on "the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment."[541] It also warned, however, that different provisions of the Act might take effect at different stages of a case and that, for instance, a purely procedural right would apply to claims that arose before the effective date of the Act but were filed after it.[542]

Wholly apart from the issue of damages, the Civil Rights Act of 1991 also modified the remedies available under Title VII in various ways. The only common theme in these provisions is that they overruled, either partially or wholly, decisions of the Supreme Court. First, the Act introduced the partial defense that the plaintiff would have been rejected for an entirely legitimate reason even if the employer had not engaged in discrimination.[543] This provision allows the award of declaratory relief, prospective injunctive relief, and attorney's fees and costs, even if the defense is made out, thereby partially overruling a decision that had recognized a full defense on the same grounds.[544]

What appears mainly to have been at stake was the award of attorney's fees to...

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