Vol. 4, No. 1, Pg. 38. The Impact of the Civil Rights Act of 1991 on Employment Litigation.

• Author: By G. Daniel Ellzey and Michael D. Carrouth

South Carolina Lawyer

1992.

Vol. 4, No. 1, Pg. 38.

The Impact of the Civil Rights Act of 1991 on Employment Litigation

38The Impact of the Civil Rights Act of 1991 on Employment LitigationBy G. Daniel Ellzey and Michael D. Carrouth"CRA 91 specifically overturns eight recent decisions by the United States Supreme Court and amends four federal civil rights statutes, making it one of the most significant federal laws affecting employment litigation in the private sector enacted in the last 25 years."

On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991 (CRA 91). Pub.L. No. 102-166, 105 Stat. 1071 (1991). CRA 91 specifically overturns eight recent decisions by the United States Supreme Court and amends four federal civil rights statutes, making it one of the most significant federal laws affecting employment litigation in the private sector enacted in the last 25 years.

This article discusses how Title I of CRA 91 has changed the employment discrimination laws applicable to private employers and how this will affect the litigation of employment discrimination claims.

Expanded Damages and Right to a Jury Trial

Before enactment of CRA 91, Title WI allowed a successful plaintiff to recover equitable relief (reinstatement, hire, promotion, etc.), lost wages or salary, lost benefits, attorney's fees and certain litigation cost and interest. 42 U.S.C. § 2000e-5(g) and (k). When reinstatement was not an available remedy, some courts interpreted Title WI to provide a successfulplaintiff projected future earnings or "front pay." See, e.g., Mosely v. Clarksville Memorial Hospital, 574 F.Supp. 224 (MD. Tenn. 1983). On the other hand, courts generally interpreted Title VII to preclude the recovery of compensatory and punitive damages and the right to a jury trial. See, e.g., DeGrace v. Rumsfiekl, 614 F.2d 796 (1st Cir. 1980); Grayson v. Wickes Corp., 607 F.2d 1194 (7th Cir. 1979). To some extent, CRA 91 removes these limitations.

* Right to Compensatory and Punitive Damages: Section 102 of CRA 91 amends Title VII and allows the award of compensatory and punitive damages for claims of intentional discrimination on the basis of sex, religion and national origin. Such expanded damages are not available for unintentional discrimination. An award of punitive damages under § 102 requires a finding that the intentional discrimination was committed "with malice or with reckless indifference to the federally protected rights of . . . [the] aggrieved individual."

Section 102 provides the same right of recovery for successful claims of intentional disability discrimination asserted under107(a) of the Americans with Disabilities Act of 1990 (the ADA), 42 U.S.C. § 12117(a), and § 505(a)(1) of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)(1). CRA 91 provides, however, that employers can avoid liability for compensatory and punitive damages in cases involving intentional disability discrimination by showing they made a "good faith" effort to reasonably accommodate the disabled person.

* Cap on Damages: In an apparent effort to prevent excessive damage awards, CRA 91 caps the amount of compensatory and punitive damages that can be awarded against an employer based on the employer's size: Employer's Cap onSize Damages 15 - 100 employees $ 50,000 101 - 200 employees $100,000 201 - 500 employees $200,000 Over 500 employees $300,000

CRA 91's limits on compensatory and punitive damages do not apply to awards for back pay, front pay or past pecuniary losses, such as medical costs. In addition, CRA 91's limits on compensatory and punitive damages do not apply to

39 awards received under § 1981 of the Civil Rights Act of 1866.

Right to a Jury Trial:

Section 102 of CRA 91 also provides an employee the right to a jury trial in cases involving intentional discrimination in which compensatory and punitive damages are sought. If an intentional discrimination claim reaches the jury, however, CRA 91 precludes the court from informing the jury of the damage limitations applicable to compensatory and punitive damages.

Although Congress may have intended to deter intentional discrimination by allowing the expansion of recoverable...