Amicus Curiae Brief — Rivers v. Roadway Express, Inc.
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Bupreme Court, U,s
FILED
i
No. 92-757 and No. 92-938 | APR 30 1993
le Thee UFAICE oF THE Clin j
Supreme Court of the United. States
OCTOBER TERM, 1992
BARBARA LANDGRAF,
. Petitioner,
USI Fitm Propucts, et al..
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Fifth Circuit
MAuRICE RIVERS AND ROBERT C. DAVISON,
. Petitioners,
ROADWAY ExpPREss, INC..
Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the Sixth Circuit
BRIEF OF THE NATIONAL WOMEN’S LAW CENTER,
THE WOMEN’S LEGAL DEFENSE FUND,
(Additional Amici Listed on Inside Cover)
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
Of Counsel: JUDITH E. SCHAEFFER
ELLEN J. VARGYAS Counsel of Record
NATIONAL WOMEN’S LAW ALEXANDER WOHL
CENTER DICKSTEIN, SHAPIRO & MORIN
1616 P Street, N.W. 2101 L Street, N.W.
Suite 100 Washington, D.C. 20037
Washington, D.C. 20036 (202) 785-9700
April 30, 1993 Counsel for Amici Curiae
a
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.c. 20001
@ iS". ©
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN
LEGAL ADVOCACY FUND,
AMERICAN CIVIL LIBERTIES UNION,
AMERICANS FOR DEMOCRATIC ACTION,
CALIFORNIA WOMEN’S LAW CENTER,
CENTER FOR WOMEN POLICY STUDIES,
COALITION OF LABOR UNION WOMEN,
EQUAL RIGHTS ADVOCATES, INC.,
FEDERALLY EMPLOYED WOMEN, INC.,
FEMINIST MAJORITY FOUNDATION,
JAPANESE AMERICAN CITIZENS LEAGUE,
NATIONAL COMMITTEE ON PAY EQUITY,
NATIONAL COUNCIL OF JEWISH WOMEN,
NATIONAL COUNCIL OF NEGRO WOMEN, INC.,
NATIONAL ORGANIZATION FOR WOMEN,
NOW LEGAL DEFENSE AND EDUCATION FUND,
NATIONAL WOMEN’S CONFERENCE COMMITTEE,
NATIONAL WOMEN’S PARTY,
NORTHWEST WOMEN’S LAW CENTER,
PEOPLE FOR THE AMERICAN WAY,
U.S. SECTION OF THE WOMEN’S INTERNATIONAL
LEAGUE FOR PEACE & FREEDOM,
WOMEN EMPLOYED,
WOMEN’S LAW PROJECT, AND
YWCA OF THE U.S.A.
TABLE OF CONTENTS
TABLE OF AUTHORITIES 00000... 0... cece
INTEREST OF THE AMICI CURIAE
SUMMARY OF ARGUMENT .
ARGUMENT echeipeiasi
I. THE CIVIL RIGHTS ACT OF 1991 WAS
IT.
ITT.
SPECIFICALLY INTENDED TO PROVIDE
ADEQUATE REMEDIES TO VICTIMS OF
SEXUAL HARASSMENT AND OTHER
FORMS OF INTENTIONAL DISCRIMINA-
TION IN EMPLOYMENT
A. Title VII And Section 1981 As Previously
Interpreted Were Inadequate To Redress
Sexual Harassment And Other Forms Of
Invidious Discrimination In Employment
B. Congress Passed The 1991 Civil Rights Act
Upon An Extensive Record Demonstrating
The Remedial Inadequacies Of The Civil
Rights Laws
1. Sexual harassment
2. Race discrimination
3. TheresponseofCongress....—s
THE FEDERAL COURTS ARE OBLIGATED
TO PROVIDE AN ADEQUATE REMEDY
FOR THE VIOLATION OF A FEDERAL
RIGHT, UNLESS THAT REMEDY IS SPE-
CIFICALLY FORECLOSED BY CONGRESS
—WHICH IS NOT THE CASE HERE
ASSUMING, ARGUENDO, THE APPLICA-
TION OF RETROACTIVITY ANALYSIS,
PRECEDENT REQUIRES THAT THE CIVIL
RIGHTS ACT OF 1991 BE APPLIED TO
PENDING CASES .....
21
ii
TABLE OF CONTENTS—Continued
Page
CONCLUSION ....__. ciasibecesadliniianestiaadiadaaganiaaiiaauedaaliemae 30
APPENDIX
STATEMENTS OF INDIVIDUAL AMICI
CURIAE...___ =, SMe la
iii
TABLE OF AUTHORITIES
Cases: Page
Albemarle Paper Co. v. Moody, 422 U.S. 405
Re a A hinemaanimmabitinss 24
Beesley v. Hartford Fire Ins. Co., 723 F. Supp.
wm CD Ab. ey t—‘(C—CS 18
Bell v. Hood, 327 U.S. 678 ( 1946) _....4, 22, 24, 25
Berry v. Stevinson Chevrolet, 804 F. Supp. 121
(D. Colo. 1992) We PEARED 23
Bowen v. Georgetown University Hospital, 488
5 Ras eae 26
Bradley v. School Board of City of Richmond, 416
U.S. 696 (1974) | vomeiiiaiceaae 4, 25, 26, 27, 28, 29
Brooms Vv. Regal Tube Co., 881 F.2d 412 (7th Cir.
I iain ei tet iiiiaianeediimmaa tliat De. 12, 13
Brown v. Culpepper, 559 F.2d 274 (5th Cir
ERECT ee ee ae aiiashenkenll dieatensiain 27
Cannon v. University of Chicago, 441 U.S. 677
a eka a 22
Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978) scleousaislcieieasleraiaareiilmes ieee saine oes 27
Compston Vv. Borden, Inc., 424 F. Supp. 157 (S.D.
Ohio 1976) _——s—s pibdlaesecsnenunsemnenstebthesstiaiimeenmenss. 19
County of Washington v. Gunther, 452 U.S. 161
RES EAMES Sa LE eae a ney 24
Curran Vv. Portland Superintending Sch. Comm.,
435 F. Supp. 1063 (D. Me. 1977) ae 7
Dangerfield V. Mission Press, 50 F.E.P. Cas. 1171
+ = 17
Davis Vv. Passman, 442 U.S. 228 (1979) 23
EEOC v. Arabian American Oil Co., 111 S. Ct.
EOE le! a axa 23
Franklin v. Gwinnett County Public Schools, 112
S. Ct. 1028 (1992) . .........4, 22, 23, 24, 25, 29
Franks v. Bowman Transp. Co., 424 US. 747
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473
(1981) . ave 29
Harvis v. Roadway Express, Inc., 913 F2a 490
(6th Cir. 1992), cert. granted, 60 Empl. Prac.
Dec. (CCH) © 42036 (U.S. ace aD SD 27
iv
TABLE OF AUTHORITIES—Continued ‘
age
Humphrey Vv. Southwestern Portland Cement Co.,
369 F. Supp. 832 (W.D. Tex. 1973), rev’d on
other grounds, 488 F.2d 691 (5th Cir. 1974). 7
J.1. Case Co. v. Borak, 377 U.S. 426 (1964). __ 22
Johnson V. Railway Express Agency, 421 U.S. 454
Kaiser Aluminum & Chem. Corp. v. Bonjorno,
i 26
Landgraf v. USI Film Products, 968 F.2d 427
(5th Cir. 1992), cert. granted, 61 U.S.L.W. 3580
(U.S. Feb. 23, 1993) Se 4-5, 8, 25, 27
Leong V. Hilton Hotels Corp., 50 F.E.P. Cas. 738
pA A ec 17
Marbury v. Madison, 5 U.S. (1 Cranch) 137
EES ee ee SO 22
Morris v. American Nat'l Can Corp., 730 F. Supp.
1489 (E.D. Mo. 1989), aff'd in part and rev'd
in part on other grounds, 941 F.2d 710 (8th Cir.
ESSER eee he oe a iialensiaia taal ce 15
Patterson Vv. McLean Credit Union, 491 U.S. 164 .
(1989)... siecle iii taal atin aaa passim
Reynolds v. Martin, 985 F.2d 470 (9th Cir. 1993). 4, 26
Stewart v. Thomas, 538 F. Supp. 891 (D.D.C.
_ = SOE eT NN SSI en, EN ae 18
Sullivan vy. Little Hunting Park, Inc., 396 U.S. 229
Re ee Eee eteaee 22
Swanson Vv. Elmhurst Chrysler Plymouth, Inc.,
882 F.2d 1235 (7th Cir. 1989), cert. denied,
493 U.S. 1036 (1990) saiidiebiaiabanaibiailiedaadaiaens 16, 25
Tooles Vv. Kellogg Co., 336 F. Supp. 14 (D. Neb.
ss slain ie 7
United States v. Schooner Peggy, 5 US. (1
Cranch) 108 (1801) aided 28
Wards Cove Packaging Co. Vv. Atonio, 490 U.S. 642
(1989) does ameaee aetna sere eee 23
Williams v. Atchison, Topeka & Santa Fe Ry.,
627 F. Supp. 752 (W.D. Mo. 1986) .——s—s—sist 9
v
TABLE OF AUTHORITIES—Continued
Page
Zabkowicz v. West Bend Co., 589 F. Supp. 780
(E.D. Wis. 1984), aff’d in part and rev'd in
part on other grounds, 789 F.2d 540 (7th Cir.
IDOE? ‘crilessntesnscanieinnmnesibiennntbbtentepineniiia niece 12
Statutes:
Civil Rights Act of 1991, Pub. L. No. 102-166, 105
EAR aay passim
TUITE ieshadensatminibiaeiaesipninimaninianetaiiiaiesice inc ta cet 5, 24
Rb iiiiiaiaiiie SR ee Cir. ag 5, 23, 24
EEE ee ee ee ene 23
EE EE esteciatnaehnienbiaticatinaes 4
Civil Rights Act of 1964, Title Vil, 42 U.S.C.
IR ions ee e e o passim
Faia a eae ea 7
Education Amendments of 1972, Title IX, 20
I I oe LU Le, Meee 22, 29
OGS6 te geet
42US.C.§ 1981 mote... 23
a 5, 7, 19, 23, 24, 29
42U.S.C.§2000enote «ss its a 23
42US.C.§2000e-5(g) 7
Legislative Materials:
The Civil Rights Act of 1990: Hearing on S. 2104
Before the Senate Comm. on Labor and Human
Resources, 101st Cong., 2d Sess. (1990) _ 9, 15, 16,18
The Civil Rights Act of 1990: Joint Hearings on
H.R. 4000 Before the Comm. on Education and
Labor and the Subcomm. on Civil and Constitu-
tional Rights of the House Comm. on the Judi-
ciary, 101st Cong.,-2d Sess. ( 1990)
|, SARS ERTL ETS SE ele ec AA cae eC 16,17
ven 8 ......... satebenenianioactnnseeneiniicnalans ceo, 11-12, 13, 18
Lo Se EE a eae miahtcgienementis 28-29
The Civil Rights Act of 1991: Hearings on H.R.
1 Before the House Comm. on Education and
Labor, 102d Cong., 1st Sess. (1991) 9-10, 14, 17, 18
vi
TABLE OF AUTHORITIES—Continued
Page
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963),
reprinted in 1964 U.S.C.C.A.N. 2391 24
H.R. Rep. No. 644 Part 1, 101st Cong., 2d Sess.
ee en eee » of
S. Rep. No. 315, 101st Cong., 2d Sess. (1990)... 9
H.R. Rep. No. 40, 102d Cong., Ist Sess. (1991)
Part I, reprinted in 1991 U.S.C.C.A.N. 549... 18, 21
Part Il, reprinted in 1991 U.S.C.C.A.N. 694.. 10
137 Cong. Rec. H9526 (daily ed. Nov. 7, 1991)...... 21
137 Cong. Rec. H9532-33 (daily ed. Nov. 7, 1991) .. 20
137 Cong. Rec. 815234 (daily ed. Oct. 25, 1991)... 8
137 Cong. Rec. 815489 (daily ed. Oct. 30, 1991). 20
137 Cong. Rec. 815490 (daily ed. Oct. 30, 1991)... 8
Congressional Quarterly Almanac, Vol. XLVII
SUITE sheila bhi tiated aia aa ie 3
Miscellaneous:
3 Blackstone Commentaries _.......... 22
Sharon T. Bradford, Relief for Hostile Work En-
vironment Discrimination: Restoring Title
Vil’s Remedial Powers, 99 Yale LJ. 1611
EET RSE es eNOS Dene wee Tm 7,8
Comment, Sexual Harassment Claims of Abusive
Work Environment Under Title VII, 97 Harv.
S88 SO ee 8
Judy Trent Ellis, Sexual Harassment and Race:
A Legal Analysis of Discrimination, 8 Journal
of Legislation 30 (1981) 000000 19
James G. Frierson, Serual Harassment in the
Workplace Costly in Production, Absenteeism,
Turnover, 8 Preventive L. Rep. 3 (June 1989). 7
Michael J. Goldberg, Comment, Jmplying Punitive
Damages in Employment Discrimination Cases,
9 Harv. Civ. R.-Civ. Lib. L. Rev. 325 (1974)... 7
Matthew C. Hesse & Lester J. Hubble, Note, The
Dehumanizing Puzzle of Sexual Harassment:
A Survey of the Law Concerning Harassment
of Women in the Workplace, 24 Washburn L.J.
SEPae PIII coctacetensistcisoessddlndandneliedaaeageabiiahiantocunedien ieadala 6
vii
TABLE OF AUTHORITIES—Continued
Page
Cong., 1st Sess. 581-629 (1991) ............ iaidateenies 18
21 Integrated Education 204 - 18
1990, 79 Cal. L. Rev. 775 (1991) 18, 19
IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
No. 92-757
BARBARA LANDGRAF,
) ‘ Petitioner,
USI Fi_m Propucts, et al.,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Fifth Circuit
No. 92-938
MAURICE RIVERS AND ROBERT C. DAVISON,
- Petitioners,
ROADWAY EXPRESS, INC.,
Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the Sixth Circuit
BRIEF OF THE NATIONAL WOMEN’S LAW CENTER,
THE WOMEN’S LEGAL DEFENSE FUND,
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN
LEGAL ADVOCACY FUND,
AMERICAN CIVIL LIBERTIES UNION,
AMERICANS FOR DEMOCRATIC ACTION,
CALIFORNIA WOMEN’S LAW CENTER,
CENTER FOR WOMEN POLICY STUDIES,
COALITION OF LABOR UNION WOMEN,
EQUAL RIGHTS ADVOCATES, INC.,
FEDERALLY EMPLOYED WOMEN, INC.,
FEMINIST MAJORITY FOUNDATION,
JAPANESE AMERICAN CITIZENS LEAGUE,
NATIONAL COMMITTEE ON PAY EQUITY,
NATIONAL COUNCIL OF JEWISH WOMEN,
2
NATIONAL COUNCIL OF NEGRO WOMEN, INC.,
NATIONAL ORGANIZATION FOR WOMEN,
NOW LEGAL DEFENSE AND EDUCATION FUND,
NATIONAL WOMEN’S CONFERENCE COMMITTEE,
NATIONAL WOMEN’S PARTY,
NORTHWEST WOMEN’S LAW CENTER,
PEOPLE FOR THE AMERICAN WAY,
U.S. SECTION OF THE WOMEN’S INTERNATIONAL
LEAGUE FOR PEACE & FREEDOM,
WOMEN EMPLOYED,
WOMEN’S LAW PROJECT, AND
YWCA OF THE U.S.A.
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
INTEREST OF THE AMICI CURIAE
Amici curiae are 26 women’s rights, civil rights, civil
liberties, religious, and labor organizations that share a
strong commitment to the eradication of all forms of dis-
crimination in the workplace, including sexual and racial
harassment. A number of the amici were substantially
involved in presenting evidence to Congress of the need
for the remedial legislation that became the Civil Rights
Act of 1991, and all of the amici desire to present their
perspective on these two extremely important cases.’
Congress passed the Civil Rights Act of 1991 in order
to restore and strengthen federal civil rights protections,
particularly as they pertain to discrimination in employ-
ment. The issue presented here is whether that statute
applies to cases pending at the time of enactment. This
Brief will not restate the analysis of the statute and its
legislative history presented by the petitioners. Rather,
it will focus upon the special concerns of Congress in ad-
dressing the evils of invidious discrimination in the work-
1The petitioners and respondents in both cases have consented
to the filing of this Brief, and copies of the parties’ consent letters
have been filed with the Clerk. Appended to this Brief are state-
ments of the individual organizations that have joined as amici
curiae.
3
place, particularly the sexual harassment of working
women, and upon the determination of Congress to en-
sure that adequate and effective remedies are available
to all victims of such intentional discrimination.
SUMMARY OF ARGUMENT
The Civil Rights Act of 1991 (“the Act” or “the 1991
Act”), Pub. L. No. 102-166, 105 Stat. 1071, was passed
by an overwhelming bipartisan majority of Congress, and
signed into law by President Bush on November 21,
1991.° As confirmed by the congressional statements of
findings and purpose and by the statute’s legislative his-
tory, the Act was a remedial measure designed to close
certain significant gaps in two principal civil rights laws.
Title VII of the Civil Rights Act of 1964 (“Title VII’)
and 42 U.S.C. § 1981 (“Section 1981”).
In particular, the Act was intended to ensure that ade-
quate remedies are available to compensate victims of in-
vidious discrimination in the workplace. As Congress
found, the subjection of employees to sexual, racial and/
or other similar forms of harassment is a pervasive prob-
lem in our society, one that causes significant psycholog-
ical, financial and often physical harm to its victims, as
well as a loss of worker-productivity. Congress also
found that, while such intentional discrimination is plainly
proscribed by Title VII, the pre-Act unavailability of
compensatory and punitive damages under Title VI!
often left victims of harassment without any effective
remedy for the violation of their right to work in an
environment free of such conduct. And although victims
of racial harassment and other racially discriminatory em-
ployment conditions had previously been able to obtain
compensation under Section 1981 for such intentional
wrongdoing, this avenue of relief was foreclosed by the
decision in Patterson v. McLean Credit Union, 491 U.S.
164 (1989).
2 The Act was passed in the Senate and the House by votes of
93-5 and 381-38, respectively. Congressional Quarterly Almanac,
Vol. XLVII, 31-S and 94-H (1991).
4
In order to rectify this situation, the Civil Rights Act
of 1991 provides for compensatory and punitive damages
(within certain monetary limits) for the intentional vio-
lation of Title VII, and amends Section 1981 to make
clear that the latter statute prohibits, inter alia, discrim-
ination on the basis of race in all aspects of an employ-
ment relationship. The Act expressly states (in Section
402(a)) that “[e]xcept as otherwise specifically provided.
this Act and the amendments made by this Act shall take
effect upon enactment.”
The sole issue presented in the instant cases is whether
the Act applies to cases pending on its date of enactment.
Amici respectfully submit that this question is answered
in the affirmative by the plain language of Section
402(a), for the reasons set forth by the Ninth Circuit in
Reynolds v. Martin, 985 F.2d 470 (9th Cir. 1993), and
that this Court’s inquiry should end there. Amici further
submit, for the reasons discussed below, that the same
conclusion is also required by long-standing judicial au-
thority that permits—indeed obligates—the federal courts
to provide an adequate remedy for the violation of
federally-protected rights, absent an explicit prohibition of
the remedy by Congress. See, e.g., Franklin vy. Gwinneti
County Pub. Schools, 112 S. Ct. 1028 (1992); Bell v.
Hood, 327 U.S. 678 (1946). In this case, not only does
no such limitation of remedies exist, but the Act demon-
strates the intent of Congress that all necessary remedies
be available to rectify intentional discrimination in the
workplace. For these reasons, there is no need for this
Court to engage in traditional “retroactivity” analysis.
However, even assuming, arguendo, the relevance of such
analysis, precedent of this Court compels the conclusion
that the Civil Rights Act of 1991 applies to pending
cases. See, e.g., Bradley v. School Bd. of City of Rich-
mond, 416 U.S. 696 (1974).
A contrary holding would continue to subject a plain-
tiff such as petitioner Barbara Landgraf to the situation
in which a federal court found that she had “suffered
Significant sexual harassment,” Landgraf v. USI Film
5
Products, 968 F.2d 427, 429 (Sth Cir. 1992), but no
remedy was available for that egregious and intentional
violation of federal law. Congress appropriately has de-
termined that this situation is intolerable in a society
that is striving for equality of treatment in the workplace,
and there is no justifiable basis upon which that situation
should be perpetuated by this Court.
ARGUMENT
I. THE CIVIL RIGHTS ACT OF 1991 WAS SPECIFI-
CALLY INTENDED TO PROVIDE ADEQUATE
REMEDIES TO VICTIMS OF SEXUAL HARASS-
MENT AND OTHER FORMS OF INTENTIONAL
DISCRIMINATION IN EMPLOYMENT
The Civil Rights Act of 1991 contains two significant
remedial measures regarding invidious discrimination in
employment. In Section 102 (codified at 42 U.S.C.
§ 198la), the Act provides compensatory and punitive
damages for the intentional violation of Title VII. And
in Section 101 (which amends Section 1981 to make
clear, in light of Patterson v. McLean Credit Union, 491
U.S. 164 (1969), that the statute prohibits race discrim-
ination in all aspects of an employment relationship), the
Act effectively restores the availability of the remedies
of Section 1981 to victims of discriminatory conduct that
continued to be unlawful under Title VII after Patterson.
In each instance, Congress was responding to over-
whelming evidence that the remedies available in cases
of intentional discrimination in employment were inade-
quate to redress the injuries caused by such discrimina-
tion. As an examination of the evidence presented to
Congress demonstrates, these remedial deficiencies be-
came most apparent to Congress in cases of sexual har-
assment, a form of discrimination that typically results
in non-wage injuries that could not adequately be rem-
edied by the equitable relief to which the courts had
been limited under Title VII. Although the remedial is-
sues considered by Congress certainly involved cases of
6
discrimination other than harassment, Congress found the
inequities caused by the failure of existing remedies in
harassment cases to be particularly persuasive of the need
to expand those remedies. A review of the legislative
record demonstrates that passage of the 1991 Civil Rights
Act was driven in pertinent part by the response of Con-
gress to such cases and its consequent determination to
ensure the availability of adequate remedies to all victims
of intentional discrimination in employment.
A. Title VII And Section 1981 As Previously Inter-
preted Were Inadequate To Redress Sexual Harass-
ment And Other Forms Of Invidious Discrimination
In Employment
The subjection of female workers to sexual harass-
ment pervades our society; studies have shown that ap-
proximately 50% to 80% of women have experienced
sexual harassment on the job. Matthew C. Hesse & Les-
ter J. Hubble, Note, The Dehumanizing Puzzle of Sexual
Harassment: A Survey of the Law Concerning Harass-
ment of Women in the Workplace, 24 Washburn L.J. 574
(1985) (hereafter “Dehumanizing Puzzle’), at 575.° The
great harms caused by sexual harassment—to the em-
ployers as well as to the victims—cannot be overem-
8 Between 1980 and 1988, more than 38,500 sexual harassment
cases were filed with the EEOC. See H.R. Rep. No. 644 Part 1,
101st Cong., 2d Sess. 40 n.29 (1990). This figure surely under-
represents the number of actual incidents; according to Women
Employed, a Chicago-based organization that has advised and as-
sisted thousands of women with employment discrimination prob-
lems, “approximately 80 percent [of the women whom they counsel |
choose not to file discrimination charges, primarily because it just
does not seem worth it.” The Civil Rights Act of 1990: Joint
Hearings on H.R. 4000 Before the Comm. on Education and Labor
and the Subcomm. on Civil and Constitutional Rights of the House
Comm. on the Judiciary, 101st Cong., 2d Sess., Vol. 2 at 19 (1990)
(statement of Nancy Kreiter). The problem is not confined to the
private sector; according to a 1988 U.S. Merit Systems Protection
Board survey, 42% of women working for the federal government
reported that they had experienced sexual harassment in the two
years prior to the survey. See H.R. Rep. No. 644 Part 1, 101st
Cong., 2d Sess. 40 n.29 (1990).
-
phasized. A recent survey of 160 “Fortune 500” com-
panies, for example, showed an average company loss of
$6.7 million per year in decreased productivity, increased
absenteeism and higher employee turnover caused by
sexual harassment. James G. Frierson, Sexual Harass-
ment in the Workplace Costly in Production, Absentee-
ism, Turnover, 8 Preventive L. Rep. 3, at 3 (June 1989).
Victims of harassment experience personal degradation
and humiliation, anxiety, stress, nervousness, depression,
and loss of self-esteem, and suffer physical problems such
as nausea, insomnia, headaches, loss of appetite and high
blood pressure. See Sharon T. Bradford, Relief for Hos-
tile Work Environment Discrimination: Restoring Title
VII's Remedial Powers, 99 Yale L.J. 1611 (1990 )
(hereafter “Bradford”), at 1615; Dehumanizing Puzzle,
supra, at 575 & n.9; and cases discussed infra pp. 10-16.
Nonetheless, despite the very real and tangible in-
juries caused by harassment, the civil rights laws have
proven inadequate to remedy those injuries. Historically,
Title VII has been interpreted by the courts as providing
only equitable relief (e.g., injunctions, back pay and rein-
Statement) but not legal relief (e.g., compensatory and
punitive damages) to remedy a violation. See, e.g., Cur-
ran \V. Portland Superintending Sch. Comm., 435 F.
Supp. 1063, 1078 (D. Me. 1977).* While so-called
“equitable” relief generally has been sufficient to remedy
the wage-related consequences of discrimination, it has
*The view that compensatory and punitive damages were not
available under Title VII (§ 706(g), 42 U.S.C. § 2000e-5(g)) was
not universal, however. See, e.g., Humphrey v. Southwestern Port-
land Cement Co., 369 F. Supp. 832 (W.D. Tex. 1973) (compensatory
damages available), rev'd on other grounds, 488 F.2d 691 (5th Cir.
1974); Tooles Vv. Kellogg Co., 386 F. Supp. 14 (D. Neb. 1972)
(punitive damages may be available). See also Bradford, supra;
Michael J. Goldberg, Comment, Jmplying Punitive Damages in
Employment Discrimination Cases, 9 Harv. Civ. R.-Civ. Lib. L. Rev.
325, 330-34 (1974). Since the 1991 Civil Rights Act (42 U.S.C.
§ 198la) expressly provides for damages in Title VII cases, the
issue of whether Title VII previously should have been interpreted
to include legal relief is now, of course, academic.
8
proven inadequate to deal with the consequences of in-
vidious harassment and other non-wage-related injuries.
The unavailability of compensatory and punitive dam-
ages under Title VII has left the victims of sexual harass-
ment with no remedy at all for the types of non-wage
injuries caused by such discrimination. See generally
Comment, Sexual Harassment Claims of Abusive Work
Environment Under Title VII, 97 Harv. L. Rev. 1449,
1464-65 (1984); Bradford, supra, at 1613-19. This
unavailability of adequate remedies was described by
Senator Kennedy, a principal sponsor of the 1991 Civil
Rights Act, as “one of the most serious loopholes in
existing law.” 137 Cong. Rec. $15234 (daily ed. Oct.
25, 1991). Accord 137 Cong. Rec. $15490 (daily ed.
Oct. 30, 1991) (statement of Sen. Durenberger terming
the inadequacies of Title VII's remedies a “gigantic loop-
hole in our discrimination laws” ).
The sexual harassment case at bar epitomizes the in-
adequacy of the equitable remedies to which Title VII
plaintiffs have been restricted. Barbara Landgraf, a ma-
chine operator at a production plant, was subjected at
work to “continuous and repeated inappropriate verbal
comments and physical contact,” as the trial court de-
termined and as the respondents herein did not dispute
at trial. Landgraf, 968 F.2d at 429, 432. Ms. Land-
graf resigned and sued her employer under Title VII.
However, because the trial court concluded that the resig-
nation was not itself the result of discrimination, Ms.
Landgraf received no equitable relief (such as back
pay). Id. at 429-32. And even though Ms. Landgraf
was the adjudicated victim of an intentional and undis-
puted violation of Title VII, she received no compensa-
tion for the humiliation and suffering caused by that
violation—the harassment itself.
Barbara Landgraf’s plight has been all too common.
As Congress learned in considering the legislation that
became the 1991 Civil Rights Act, see infra pp. 10-16,
the unavailability of an adequate remedy for sexual ha-
rassment under Title VII created a class of persons whose
9
federal rights unquestionably had been violated but who
could not obtain adequate relief for that violation. Em-
ployees who were subjected to a similar evil—racial
harassment—fared no better under Title VII. See, e.¢.,
Williams v. Atchison, Topeka & Santa Fe Ry., 627 F.
Supp. 752 (W.D. Mo. 1986) (African American male
employee who was forced to endure racial slurs and
“jokes” such as posting of Ku Klux Klan application on
company bulletin board received judgment that employer
had violated Title VII but was awarded no damages un-
der Title VII for his resulting emotional and psycholog-
ical problems, a situation the court “regretted” ).
Section 1981 historically has offered more expansive
remedies to victims of race discrimination than has Title
VII, including compensatory and punitive damages. See,
e.g., Johnson vy. Railway Express Agency, 421 U.S. 454,
460 (1975). See also The Civil Rights Act of 1990:
Hearing on S. 2104 Before the Senate Comm. on Labor
and Human Resources, 101st Cong., 2d Sess. (1990)
(hereafter “Civil Rights Act 1990 Senate Hearing”), at
160-65 (statement of Prof. Eleanor Holmes Norton).
However, this Court's decision in Patterson v. McLean
Credit Union terminated the right of plaintiffs to sue un-
der that statute for race discrimination involving the con-
ditions of employment (such as racial harassment), as
distinct from discriminatory practices in the creation of
the employment contract itself. The combination of Par-
terson and the limited remedies then allowed under Title
VII thus meant that victims of certain forms of inten-
tional race discrimination in employment likewise had no
adequate remedy for that wrongdoing.’
5 As of 1990, more than 200 claims of race discrimination had
been dismissed by the federal courts as a result of the Patterson
decision. S. Rep. No. 315, 101st Cong., 2d Sess. 13 (1990) (citing
statement of Julius Chambers, Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc.). See also Women’s Legal
Defense Fund, The Unjust Workplace: The Impact of the Patterson
Decision on Women (reprinted in The Civil Rights Act of 1991:
eee tenner,
10
B. Congress Passed The 1991 Civil Rights Act Upon
An Extensive Record Demonstrating The Remedial
Inadequacies Of The Civil Rights Laws
In response to Patterson and several other decisions of
this Court “that sharply cut back on the scope and ef-
fectiveness of these important federal laws” (i.e., Title
VII and Section 1981), see H.R. Rep. No. 40 Part II.
102d Cong., Ist Sess. 2 (1991), reprinted in 1991
U.S.C.C.A.N. 694, at 694, and in response to the re-
medial inadequacies of Title VII, Congress undertook to
amend those statutes. In considering the proposed legis-
lation that ultimately became the Civil Rights Act of
1991, Congress heard testimony from, inter alia, numer-
ous individuals who had been sexually harassed at work
in violation of Title VII, and/or who had been victimized
by race discrimination in employment, yet who had re-
ceived no compensation for the injuries that they had
suffered as a consequence of that intentional wrongdoing.
Many of these witnesses presented facts that had been ad-
judicated by federal courts as constituting intentional dis-
crimination in violation of federal law. The painful tes-
timony that they gave before Congress was a ringing
indictment of the inadequacies of the laws to remedy
such discrimination, and formed the basis on which Con-
gress then acted.
1. Sexual harassment
For example, Carol Zabkowicz, a warehouse worker
with the West Bend Company in Oak Creek, Wisconsin,
described the vicious sexual harassment to which she had
been subjected at work:
My co-workers would constantly pull on my bra
straps. One of my co-workers left a handwritten
poem on my desk regarding my sex life with my
husband. Another man would often call me a “sexy
Hearings on H.R. 1 Before the House Comm. on Education and
Labor, 102d Cong., 1st Sess. 770-92 (1991) ).
11
bitch” or “H and H,” which I discovered meant
“Hot and Horny.” Still another would grab his
penis in front of me and ask me if I could handle
his “25 pounder.” He would also call out to me.
When I looked in his direction, he would be standing
with his buttocks exposed.
Another man also ex his buttocks to me, and
on occasion, would lift up the leg of the cutoff
Shorts he was wearing, call my name, and expose
his testicles to me. This same man made a huge
cardboard cutout of a penis, with which he would
pretend to poke me in the buttocks when my back
was turned.
Yet another man would post drawings of caricatures
of myself. These drawings would depict me naked,
often performing sexual acts with either a human
being or an animal. My initials would be written
on the drawings.
Because I knew these acts were wrong, I repeatedly
reported this outrageous behavior to my immediate
supervisor and my manager, but to no avail... .
During this time, my emotional and physical health
suffered. I was anxious, nervous, had poor concen-
tration and cried easily. I suffered vomiting, severe
nausea, diarrhea and cramping. My doctor testified
at my trial that I suffered from a gastrointestinal
disorder as a result of the harassment at work, and
the judge accepted this as fact.
In 1982, when I was pregnant with my second child,
the harassment was still going on. My health con-
tinued to decline, and I started to lose weight. My
OB-GYN, who was aware of my horrendous work-
ing conditions, told me that for the sake of my
health. and the health of the child that I was carrv-
ing, I had to take a medical leave of absence from
work, and I did this.
The Civil Rights Act of 1990: Joint Hearings on H.R.
4000 Before the Comm. on Education and Labor and
the Subcomm. on Civil and Constitutional Rights of the
12
House Comm. on the Judiciary, 10\st Cong., 2d Sess.
(1990) (hereafter “Civil Rights Act 1990 House Hear-
ings’), Vol. 2 at 3-4.
A federal court found that Ms. Zabkowicz had been
subjected to “a campaign of abuse” and “sustained, ma-
licious, and brutal harassment.” Zabkowicz v. West Bend
Co., 589 F. Supp. 780, 782, 784 (E.D. Wis. 1984), aff'd
in part and rev'd in part on other grounds, 789 F.2d 540
(7th Cir. 1986). The court also found that despite Ms.
Zabkowicz’s repeated complaints about this unconscion-
able treatment, her employer for years “never conducted
an investigation or disciplined a single employee,” and
held the employer liable for sexual harassment under
Title VII. 589 F. Supp. at 785. Nonetheless, Ms.
Zabkowicz was awarded only $2,763.20—back pay for
wages lost during an illness caused by the harassment.
Id. at 783, 785. Ms. Zabkowicz received no compensa-
tion for her medical bills or for her emotional distress.
In fact, had she not become so physically ill that she
could not work, Ms. Zabkowicz would have received no
compensation at all despite having been victimized by
intentional and sustained violations of federal law.
The case of Helen Brooms, a 36-year-old African
American industrial nurse, was equally revealing of the
inadequacies of Title VII. Ms. Brooms, a married mother
of three, had been racially and sexually harassed by her
supervisor and forced to leave her job as a result of the
harassment. As a federal judge found, Ms. Brooms’s su-
pervisor had, among other things, made numerous explicit
racial and sexual remarks to her and showed her porno-
graphic photographs, including a “photograph depicting
an interracial act of sodomy” which the supervisor told
Ms. Brooms “showed the ‘talent’ of a black woman” and
depicted the purpose for which she had been hired.
Brooms Vv. Regal Tube Co., 881 F.2d 412, 416-17 (7th
Cir. 1989). In testimony before Congress, Ms. Brooms
further described the harassment to which she had been
subjected:
13
He [the supervisor] told me I was “the best looking
piece of ass” at a company party and asked if there
was room in my pants for him. . . . He said he
wanted to place salt on my genitalia and eat it off.
He asked me to smoke marijuana with him for it
made him oversexed. He remarked that I needed
breast surgery.
While attending an out-of-town conference, my boss
propositioned me for sexual favors, described the
size of his penis and said black women had, through-
out history, borne white men’s babies. I was so
upset and frightened that as a result, I suffered
severe rectal bleeding and required medical attention.
Civil Rights Act 1990 House Hearings, supra, Vol. 2
at 16-17.
The harassment of Ms. Brooms culminated in an inci-
dent in which her supervisor showed her a picture de-
picting bestiality and threatened to kill her if she did not
submit to him. Ms. Brooms “ran from him, screaming in
terror, and in [her] haste to escape, fell down a flight of
stairs” and suffered permanent physical injury. /d. at 17.
Although Ms. Brooms left her job, the effects of the ha-
rassment continued; as Ms. Brooms explained, she “suf-
fered a severe and debilitating depression requiring
psychiatric treatment [and] was unable to work.” Jd.
Despite all her anguish and pain, Ms. Brooms received
only an award of back pay, and this only because the
trial court had concluded that the harassment was so
severe as to constitute a constructive discharge. Id. at
16; 881 F.2d at 417. Ms. Brooms received no compensa-
tory damages for any of the other consequences of the
harassment, including her resulting medical bills and emo-
tional distress.
Jacqueline Morris, a machinist at the American Na-
tional Can Corporation, was similarly left without any
remedy for the campaign of sexual harassment conducted
against her by her co-workers. As she testified before
Congress:
On more than one occasion, the manager of form-
ing operations for the plant touched my buttocks,
14
told me that I “had a nice ass” and that he would
“like to have a piece of that”;
At one staff meeting I asked my supervisor where
I should sit, and he responded by moving my head
down while saying something to the effect that “you
might as well sit underneath my desk since that’s
where you do your best work”’;
On more than one occasion, my immediate supervisor
touched my breasts, touched my buttocks, made re-
marks to me such as “didn’t you get any last night,”
and “‘do you spit or swallow,” and made references
to my breasts and buttocks;
Numerous offensive materials were left at my work
station, including a clay replica of a penis with steel
wool testicles... .
The Civil Rights Act of 1991: Hearings on H.R. 1 Be-
fore the House Comm. on Education and Labor, 102d
Cong., Ist Sess. (1991) (hereafter “Civil Rights Act
1991 House Hearings”), at 124.
After exhausting all internal grievance procedures, Ms.
Morris filed a charge of discrimination with the EEOC,
yet the harassment escalated. As she explained to
Congress:
At various times, I found the words “bitch,” “slut,”
“whore” and “jackie blows head” written on my
desk or near my work station;
A picture which showed a nude woman touching
her breasts was left at my work station with a note
that said “you should be doing this instead of [a]
man’s job”;
A substance which smelled like urine was put in the
air line of my air compressor;
A semen-like substance was left on the chair at my
workbench.
Id. at 125.
15
As a result of the abuse, Ms. Morris suffered from
breathing difficulties, nervousness, sleeplessness, and
blotches and welts on her legs and back, all of which
subsided whenever she took time off from work. Ulti-
mately, a federal court found her employer liable for
sexual harassment in violation of Title VII. Morris v.
American Nat'l Can Corp., 730 F. Supp. 1489 (E.D.
Mo. 1989), aff'd in part and rev'd in part on other
grounds, 941 F.2d 710 (8th Cir. 1991). Despite this
violation of her federal rights—the details of which the
Eighth Circuit called “sordid and egregious,” 941 F.2d
at 712—Ms. Morris received only retroactive seniority
and back pay with interest for the work that she had
missed, and nothing for the pain, suffering, humiliation,
and health-related problems that she had endured. 730
F. Supp. at 1497-98.
The case of Patricia Swanson, another victim of sexual
harassment, provided perhaps the most compelling exam-
ple not only of the inadequacy of Title VII’s remedies
but also of the egregious and absurd results of that inade-
quacy when carried to its inevitable conclusion. As Ms.
Swanson reported to Congress, the supervisor at the car
dealership where she worked as an assistant finance man-
ager had repeatedly made lewd, offensive and embarrassing
comments to her, sometimes in the presence of other em-
ployees, had repeatedly attempted to unhook her bra, had
run his hand up her skirt and grabbed her between her
legs, had pulled down his pants and stood naked in front
of her, and had repeatedly threatened that he would make
her have sex with him. Civil Rights Act 1990 Senate
Hearing, supra, at 186-88. This conduct caused Ms.
Swanson to feel “like [she] was a prisoner in [her] own
office . . . [and caused her migraine headaches] so bad
[she] almost passed out.” Jd. at 188. Ms. Swanson was
subsequently discharged.
Although Ms. Swanson filed suit, the response of the
federal courts to the concededly unlawful conduct to
which she had been subjected only served to compound
16
her suffering. Even though the trial judge found, and the
Court of Appeals agreed, that Ms. Swanson had been
sexually harassed, Ms. Swanson was awarded no relief
because the courts concluded that she had been dis-
charged for reasons unrelated to the harassment. And
since no compensatory or punitive damages were avail-
able under Title VII to remedy the harassment, the de-
fendant was considered to be the prevailing party and
Ms. Swanson was ultimately ordered to pay the defend-
ant’s court costs. Jd. at 188-89. See Swanson vy. Elm-
hurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1240 (7th
Cir. 1989) (“since Swanson cannot recover any award
under Title VII, [the defendant] must receive judgment
even if there has been a violation of that statute”), cert.
denied, 493 U.S. 1036 (1990).
In sum, and as stated to Congress by the American
Bar Association, Title VII left “many victims of employ-
ment discrimination without remedies for their proven
injuries and allow[{ed] certain employers who discriminate
to avoid any meaningful liability.” Civil Rights Act 1990
House Hearings, supra, Vol. 1 at 533.
2. Race discrimination
As Congress further heard, victims of intentional race
discrimination suing under Section 1981 fared no better
after Patterson. For example, in the case of Bunny
Kishaba, a woman of Hawaiian-Chinese ancestry who had
been employed as an executive secretary for Hilton Hotels
in Hawaii and who had sued Hilton for race discrimina-
tion, it was
undisputed that [Kishaba’s supervisor] McDonough
made many derogatory and discriminatory remarks
about various ethnic groups . . . . McDonough re-
ferred to a Japanese person as a “Jap” and com-
pared local people to “the spics in New York,” stat-
ing that locals are “not capable of being super-
visors” and are “incompetent.” .. . Kishaba wit-
nessed racist behavior of a more subtle kind. When
17
a Jewish group attempted to contact the executive
office, McDonough told her to have D’Rovencourt
take care of it because “he’s our resident.”’ She as-
serts that there was no doubt from his manner that
he meant “resident Jew.” . . . McDonough told her
. .. “in a contemptuous way” that “I have to have
the only secretary who does the hula.” Additionally,
McDonough frequently used the term “you people”
in such phrases as “what’s the matter with you peo-
ple” or “if you people don’t shape up, I'll get rid of
all of you.” Kishaba states that “there was no doubt
whatever” that his references to “people” were to
local Asians and Hawaiians.
Civil Rights Act 1990 House Hearings, supra, Vol. 1 at
176-77 (quoting Leong v. Hilton Hotels Corp., 50 F.E.P.
Cas. 738, 739 (D. Haw. 1989)). Nonetheless, the court
held that, after Patterson, Ms. Kishaba’s claim of racial
harassment was no longer actionable under Section 1981.
Leong, 50 F.E.P. Cas. at 741.°
The court in Ms. Kishaba’s case also held that she
could not obtain compensatory or punitive damages under
Title VII, 50 F.E.P. Cas. at 741, thus underscoring the
devastating effect that Patterson had, particularly on
women of color victimized by harassment, by its elimina-
tion of an alternative to Title VII’s inadequate remedies.
This harsh reality was brought home to Congress by the
evidence presented during the hearings on the 1991 Act.
See, e.g., Civil Rights Act 1991 House Hearings, supra,
at 770-92 (reprinting Women’s Legal Defense Fund, The
Unjust Workplace: The Impact of the Patterson Decision
on Women).
® See also Civil Rights Act 1990 House Hearings, supra, Vol. 1
at 177-78, discussing Dangerfield Vv. Mission Press, 50 F.E.P. Cas.
1171 (N.D. Ill. 1989), in which the court held that “contemptible”
racist conduct to which the plaintiff employees allegedly had been
subjected was not actionable under Section 1981 after Patterson.
18
3. The response of Congress
The witnesses who appeared before Congress were
only a few of the many individuals who have been vic-
timized by egregious and intentional acts of discrimi-
nation in violation of Title VII and/or Section 1981, yet
who have received little or no compensation for their
injuries.’ Having heard from those victims, as well as
from civil rights leaders, elected officials, and members
of the academic and business communities, Congress
realized the magnitude of the inequities caused by the
remedial gap in Title VII and by Patterson."
7 See, e.g., National Women’s Law Center, Title VII's Failed
Promise: The Impact of the Lack of a Damages Remedy (1991)
and cases collected therein (reprinted in Civil Rights Act 1991
House Hearings, supra, at 581-629); Judith A. Winston, Mirror,
Mirror on the Wall: Title VII, Section 1981, and the Intersection
of Race and Gender in the Civil Rights Act of 1990, 79 Cal. L. Rev.
775 (1991) (offering additional case accounts).
8 The remedial inadequacies of the civil rights laws were com-
municated to Congress by a wide variety of people and groups.
See H.R. Rep. No. 40 Part I, 102d Cong., 1st Sess. 17-18 (1991),
reprinted in 1991 U.S.C.C.A.N. 549, 555-56; Civil Rights Act 1990
House Hearings, supra, Vol. 2 at III-IV; Civil Rights Act 1990
Senate Hearing, supra, at III-VI. The need for strengthening
Title VII’s remedies had also been recognized by officials of govern-
ment agencies involved in equal employment issues and by legal
commentators. See, e.g., Clarence Thomas, Discrimination and Its
Effects, 21 Integrated Education 204 (1983) (arguing that “equi-
table remedies available under Title VII are not as compelling as
the civil damages available under other federal statutes” and sug-
gesting a need for more effective remedies) ; and authorities cited
supra p. 7.
In addition, a number of federal courts had also recognized the
failure of Title VII’s “equitable” remedies. See, e.g., Beesley Vv.
Hartford Fire Ins. Co., 723 F. Supp. 635, 647 (N.D. Ala. 1989)
(the lack of compensatory and punitive damages as a remedy
makes “‘a Title VII sexual harassment claim, as a practical matter,
meaningless”); Stewart v. Thomas, 538 F. Supp. 891, 897 (D.D.C.
1982) (“[t]o the extent that Title VII fails to capture the personal
nature of the injury done to this plaintiff as an individual, the
remedies provided by that statute fail to appreciate the relevant
dimensions of the problem in this [sexual harassment] case’’) ;
19
In the 1991 Act, Congress made a reasoned judg-
ment to rectify these inequities through two measures—
the restoration of the law under Section 1981 as it had
existed prior to Patterson, and the provision of compen-
satory and punitive damages under Title VII. This leg-
islation not only took an important step toward closing
the “gigantic loophole” in Title VII (caps were placed
on damages), but addressed a serious problem that had
particularly confronted women of color. Because of the
remedial discrepancies that had existed between Title VII
and Section 1981, women of color victimized by employ-
ment discrimination had been confronted with a legal
system in which employer-defendants endeavored to
pigeonhole their claims into a race-based or sex-based
box, rather than recognize that such claims were gen-
erally inseparable. See Judith A. Winston, Mirror, Mirror
on the Wall: Title VII, Section 1981, and the Intersection
of Race and Gender in the Civil Rights Act of 1990, 79
Cal. L. Rev. 775 (1991); Judy Trent Ellis, Sexual Har-
assment and Race: A Legal Analysis of Discrimination,
8 Journal of Legislation 30 (1981). With the 1991
Act, it is less likely that women of color will be sub-
jected to artificial efforts to separate a single individual
by race and gender.
By amending Section 1981 and adopting new Section
1981la, Congress sought to put an end to the violation
of rights without remedies. This overarching purpose of
the 1991 Civil Rights Act—to ensure that victims of
invidious discrimination in employment have meaningful
legal remedies—was effectively summarized by Senator
Leahy, an original co-sponsor of the Act:
Compston v. Borden, Inc., 424 F. Supp. 157, 162 (S.D. Ohio 1976)
(“[wlere compensatory damages available to a Title VII plaintiff,
this Court would not hesitate to enter such an award in this case,
because it is apparent from the evidence that [the plaintiff] suf-
fered mental anguish and humiliation at defendants’ hands’).
20
Under existing civil rights laws, the best a woman
who is intentionally harassed in the workplace can
hope for from our legal system is a court order
saying that her boss should stop. If her boss starts
to harass her again, the only thing she can do is
go back to court to get yet another order telling her
boss to behave. . . . [WJithout the improvements of
the Civil Rights Act of 1991, there would be no
penalty for the employer, no adequate compensation
for the victim.
* * * *
[And if] . . . an employer intentionally harasses or
otherwise persecutes an employee solely on account
of race, the current civil rights laws cannot require
the employer to compensate that person fully for
the damage he has caused, no matter how great or
how real. Nor can the employer be forced to pay
punitive damages no matter how outrageous his con-
duct has been. By overturning the Supreme Court’s
decision in Patterson versus McLean Credit Union,
the Civil Rights Act of 1991 would remedy this
injustice.
The penalties for civil rights violations—for depriv-
ing citizens of the fundamental principles of equality
and fairness on which this Nation was founded—
should not be inferior to legal claims for breaching
a contract, violating the Sherman Act, or infringing
a copyright. This bill goes a long way toward set-
ting this priority straight and recognizing the im-
portance of protecting all Americans from discrimi-
nation by providing a meaningful legal remedy.
137 Cong. Rec. $15489 (daily ed. Oct. 30, 1991) (em-
phasis added ).°
® See also 137 Cong. Rec. H9532-33 (daily ed. Nov. 7, 1991)
(statement of principal sponsor Rep. Fish noting that Congress is
“united in again responding appropriately to the reality of dis-
crimination” by “provid[ing] a necessary remedy [monetary relief |
for those who continue to be victimized” and by “effectively over-
turn{ing] Supreme Court rulings because we cannot ignore the
judicial erosion of important protections for women and members
21
Despite the clear purpose of Congress in passing the
1991 Act and the extensive and explicit record on which
Congress acted, the respondents in the instant cases would
have this Court continue to apply a remedially-deficient
civil rights jurisprudence. For the reasons set forth be-
low, this Court should decline that invitation to prolong
the injustice that Congress so plainly intended to end.
II. THE FEDERAL COURTS ARE OBLIGATED TO
PROVIDE AN ADEQUATE REMEDY FOR THE
VIOLATION OF A FEDERAL RIGHT, UNLESS
THAT REMEDY IS SPECIFICALLY FORECLOSED
BY CONGRESS—WHICH IS NOT THE CASE HERE
The instant cases, if not reversed, would perpetuate
the situation in which federal rights can be violated with-
out an adequate remedy being accorded to the victims—
the very situation that Congress intended to eradicate by
passage of the Civil Rights Act of 1991. This Court
should reverse the judgments below based on the long-
established principle that a federal court is obligated to
ensure an adequate remedy for a violation of federal law,
provided that the remedy has not been foreclosed by
Congress.
It is well-settled that for every available statutory right
there must be an appropriate remedy for a deprivation
of minority groups”); H.R. Rep. No. 40 Part I, 102d Cong., Ist
Sess. 64-65 (1991), 1991 U.S.C.C.A.N. at 602-03 (“|m|]onetary
damages also are necessary to make discrimination victims whole
for the terrible injury to their careers, to their mental and emo-
tional health, and to their self-respect and dignity”); 137 Cong.
Rec. H9526 (daily ed. Nov. 7, 1991) (statement of principal sponsor
Rep. Edwards noting that “[c]ompensatory damages are necessary
to make discrimination victims whole for the terrible injury to
their careers, to their mental, physical, and emotional health, to
their self-respect and dignity, and for other consequential harms”
and further stating that “Section 101 fills the gap in the broad
statutory protection against intentional racial and ethnic discrimi-
nation covered by Section 1981 .. . that was created by the Supreme
Court decision in Patterson”).
22
of that right. Chief Justice John Marshall stated in 1803
what has been a guiding legal principle ever since: “The
very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws,
whenever he receives an injury... . ‘[E]very right, when
withheld, must have a remedy, and every injury its proper
redress.’ Marbury v. Madison, 5 U.S. (1 Cranch) 137,
163 (1803) (quoting 3 Blackstone Commentaries 109).
This rule guarantees to victims of statutory violations
that courts will provide the necessary remedies, particu-
larly when the violations are of federal law. As this
Court has stated on repeated occasions:
[Where federally protected rights have been in-
vaded, it has been the rule from the beginning that
courts will be alert to adjust their remedies so as to
grant the necessary relief. And it is also well settled
that where legal rights have been invaded, and a
federal statute provides for a general right to sue for
such invasion, federal courts may use any available
remedy to make good the wrong done.
Bell v. Hood, 327 U.S. 678, 684 (1946) (footnotes
omitted); accord Sullivan v. Little Hunting Park, Inc..
396 U.S. 229, 239 (1969); J.J. Case Co. v. Rorak, 377
U.S. 426, 433 (1964).
This Court reaffirmed the vitality of this important
and bedrock legal doctrine as recently as last Term. In
Franklin vy. Gwinnett County Public Schools, 112 §S. Ct.
1028 (1992), the Court held that compensatory damages
are available as a remedy in a private action challenging
an intentional violation of Title IX of the Education
Amendments of 1972 (“Title [IX”)."° The Court reached
this conclusion by applying the rationale of Bell v. Hood
and its progeny, and stated that damages must be made
1 The private right of action is not expressly authorized by
Title IX but was itself deemed to exist by this Court in Cannon Vv.
University of Chicago, 441 U.S. 677 (1979).
23
available because, without them, the federal remedy would
clearly be inadequate and would in fact “accord[]. . .
no remedy at all.” 112 S. Ct. at 1038.
The one exception to the requirement that all appro-
priate relief be awarded in any action to vindicate a fed-
eral right is in those instances in which there exists a
clear indication of a contrary legislative intent. As this
Court stated in Franklin, “we presume the availability
of all appropriate remedies unless Congress has expressly
indicated otherwise.” 112 S. Ct. at 1032 (citing Davis
v. Passman, 442 U.S. 228, 246-47 (1979) ).
No contrary congressional expression exists here.
Whether or not Title VII as originally enacted allowed
compensatory and punitive damages, see supra note 4, 42
U.S.C. § 1981a now plainly does, and that statute, which
is Section 102 of the 1991 Act, contains no bar to its
application in pending cases." In Franklin, this Court
refused to create a remedial bar not imposed by Congress,
and it should do the same here. Indeed, given the plain
language of 42 U.S.C. § 198la, the express recognition
by Congress of the inadequacy of Title VII’s remedies,
and the intent of Congress to ensure the availability of
compensatory and punitive damages and put an end to
cases such as that of Pat Swanson, Helen Brooms—and
Barbara Landgraf—it would be highly anomalous for
this Court to continue to apply Title VII in a limited
remedial manner.”
11 By contrast, see Sections 109(c) and 402(b) of the Act (42
U.S.C. § 2000e note and 42 U.S.C. § 1981 note, respectively), which
contain express prohibitions on retroactive application of the section
of the Act that overturns EEOC v. Arabian American Oil Co., 111
S. Ct. 1227 (1991), and of the entire Act to certain defined “dis-
parate impact cases” (i.e., Wards Cove Packaging Co. Vv. Atonio,
490 U.S. 642 (1989)).
12 Indeed, given the decision in Franklin, one court has recently
concluded that Title VII itself (as distinct from 42 U.S.C. § 1981a)
should be interpreted to allow compensatory and punitive damages.
See Berry v. Stevinson Chevrolet, 804 F. Supp. 121, 136-37 (D. Colo.
1992).
24
Similarly, Congress recognized that Patterson had cre-
ated an untenable remedial problem for victims of in-
tentional race discrimination in employment. Although
the right to a workplace free of such discrimination con-
tinued under Title VII after Patterson, the comprehen-
sive remedy for a violation of that right provided by
Section 1981 was no longer available. Section 1981 as
amended by Section 101 of the 1991 Civil Rights Act
thus restores those remedies for the violation of rights
that existed at all relevant times. Like Section 102 of
the Act, Section 101 contains no bar to retroactive appli-
cation. Bell and Franklin thus require that Section 1981
as amended by the Act be applied in pending cases so
that adequate remedies will be available to victims of
intentional race discrimination in employment.
The obligation of the courts to provide an adequate
remedy for the violation of an employee’s right to a
workplace free of invidious discrimination, through the
application of 42 U.S.C. § 198la and Section 1981 as
amended by the 1991 Act, is not only required by Bell
and Franklin, but would comport with the goal of the
civil rights laws to end “the injustices and humiliations
of racial and other discrimination,” H.R. Rep. No. 914,
88th Cong., Ist Sess. 18 (1963), reprinted in 1964
U.S.C.C.A.N. 2391, 2394, and serve to effectuate the
“purpose of Title VII to make persons whole for in-
juries suffered on account of unlawful employment dis-
crimination.” Albemarle Paper Co. v. Moody, 422 US.
405. 418 (1975). Accord Franks v. Bowman Transp.
Co., 424 U.S. 747, 763 (1976). As this Court stated
in County of Washington v. Gunther, 452 US. 161
(1981), “a ‘broad approach’ to the definition of equal
employment opportunity is essential to overcoming and
undoing the effect of discrimination. We must therefore
avoid interpretations of Title VII that deprive victims
of discrimination of a remedy, without clear congres-
sional mandate.” Id. at 178 (emphasis added, citation
omitted ).
25
It is undisputed that Barbara Landgraf suffered “sig-
nificant sexual harassment at the hands of [a co-worker],”
Landgraf, 968 F.2d at 429, a clear and intentional vio-
lation of Title VII, yet she received no relief for the
resulting injuries. Similarly, the petitioners in Rivers
had the remedies previously available to them under law
taken from them as a result of this Court’s ruling in
Patterson. Both cases now before this Court involve
precisely the type of injustice that Congress sought to
rectify with passage of the 1991 Act, i.e., the violation
of rights without remedies. (Indeed, the similarities be-
tween Landgraf and Swanson are quite striking.) It
would be directly contrary to the teachings of Bell and
Franklin for the Court-—in the absence of a clear statu-
tory directive—to refuse to apply the relevant sections
of the 1991 Civil Rights Act to pending cases and thus
continue to turn away victims of intentional discrimina-
tion without affording them adequate relief. And it would
be particularly ironic for the Court to do so in a sexual
harassment case—the paradigm of what prompted Con-
gress to act.
III. ASSUMING, ARGUENDO, THE APPLICATION OF
RETROACTIVITY ANALYSIS, PRECEDENT RE-
QUIRES THAT THE CIVIL RIGHTS ACT OF 1991
BE APPLIED TO PENDING CASES
For the reasons discussed above, Bell v. Hood and its
progeny compel the application of the Civil Rights Act
of 1991 to pending cases so that prevailing plaintiffs
may be afforded a remedy for the violation of their
federally-protected rights. Thus, these cases do not im-
plicate traditional “retroactivity” analysis. However, as-
suming, arguendo, that this Court determines to apply
such analysis, Bradley v. School Board of City of Rich-
mond, 416 U.S. 696 (1974), requires that the Civil
Rights Act of 1991 be applied to cases pending at the
time of enactment.
26
In Bradley, a unanimous Court (with two Justices not
participating) held that a statute granting the federal
courts the authority to award reasonable attorneys’ fees
in school desegregation cases applied to counsel's services
rendered prior to enactment of the statute. The Court
noted that its holding was “anchor[ed] . . . on the prin-
ciple that a court is to apply the law in effect at the
time it renders its decision, unless doing so would result
in manifest injustice or there is statutory direction or
legislative history to the contrary.” 416 U.S. at 711."
With respect to the 1991 Civil Rights Act, neither of
these two exceptions to the Bradley rule exists. As the
Briefs of the petitioners demonstrate, there is no “statu-
tory direction or legislative history” that requires the
prospective application of the Act except with respect to
certain specific sections not at issue here. See supra note
11. To the contrary, and for the reasons set forth in
Reynolds v. Martin, 985 F.2d 470, the plain language
of the Act requires that the statute be applied to pending
cases, except as otherwise expressly provided, which should
end the inquiry.
Assuming, arguendo, that one disagrees with Reynolds,
the most that can be argued in favor of a prospective
application of the Act based on the statute and its legis-
lative history is that they are ambiguous as to that issue;
even the courts that have held the Act to be prospective
13 While an “apparent tension” has been observed between
Bradley and the subsequent opinion in Bowen v. Georgetown Uni-
versity Hospital, 488 U.S. 204 (1988) (see Kaiser Aluminum &
Chem. Corp. V. Bonjorno, 494 U.S. 827, 837 (1990)), Bowen in
fact involved the potential retroactivity of an administrative rule,
and its holding turned on the agency’s lack of authority to adopt
retroactive rules. By contrast, Bradley and the instant cases involve
civil legislation duly enacted by the Congress of the United States,
which plainly does have the authority to enact retroactive civil
statutes. In any event, further analysis of this issue is beyond the
scope and purpose of this Brief amici curiae, and amici respectfully
refer the Court to the Briefs of the petitioners on this issue.
27
only have had to concede this—including the courts in
the two cases now before this Court. See, e.g., Harvis v.
Roadway Express, Inc., 973 F.2d 490, 496 (6th Cir.
1992) (referring to the Act’s “ambiguous legislative his-
tory and language”); Landgraf, 968 F.2d at 432 (“there
is no clear congressional intent on the general issue of the
Act’s application to pending cases”). Under Bradley, an
ambiguous legislative history that can be read as sup-
portive of either retroactivity or prospectivity provides
“at least implicit support for the application of the stat-
ute to pending cases,” 416 U.S. at 716, and is not a bar
to such application. Thus, the exception to the Bradley
norm of retroactivity based on a congressional directive
of prospectivity is inappucable here.
The other exception to the Bradley rule—manifest
injustice—is equally inapplicable. The Bradley Court
articulated a three-part test as a guide in determining
“the possible working of an injustice” in the application
of a new statute to pending cases; that test examines “(a)
the nature and identity of the parties, (b) the nature
of their rights, and (c) the nature of the impact of the
change in law upon those rights.” 416 U.S. at 717. An
application of that test in the instant cases confirms that
no “manifest injustice” would result from holding the
Act applicable in these cases.
First, while these cases technically involve disputes be-
tween private parties, Title VII and Section 1981 are in-
tended to create a society free of invidious discrimination.
Plaintiffs who successfully sue under these statutes thus
advance important federal goals, and are therefore con-
sidered to be acting as private attorneys general in ef-
fectuating those goals. See, e.g., Christianshure Garment
Co. v. EEOC, 434 US. 412, 418 (1978) (Title VU
plaintiff “is the chosen instrument of Congress to vindi-
cate ‘a policy that Congress considered of the highest
priority’ ” (citation omitted) ); Brown v. Culpepper, 559
F.2d 274, 277-78 (Sth Cir. 1977) (Section 1981). It is
significant to note that in Bradley itself, this Court recog-
28
nized the public importance of school desegregation cases
in part by comparing them with suits brought to enforce
the Civil Rights Act of 1964 (of which Title VII is a
part), noting that private litigation is a necessary means
of securing broad compliance with such laws. 416 U.S.
at 719.
Like the school desegregation statute at issue in Brad-
ley, Title VII and Section 1981 involve “great national
concerns” and must therefore be decided “according to
existing laws.” Bradley, 416 U.S. at 719 (citing United
States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110
(1801)). Thus, application of the first part of the Brad-
ley “injustice” test favors retroactivity.
The second part of that test likewise provides no sup-
port for prospectivity, since application of the 1991 Civil
Rights Act to pending cases would not “infringe upon
or deprive a person of a right that had matured or be-
come unconditional.” Bradley, 416 U.S. at 720. Simply
put, no one has a right to violate federal law, and fed-
eral law at all relevant times has prohibited invidious dis-
crimination in employment. As Congress recognized in
1990, “[t]wenty-six years after Title VII of the Civil
Rights Act of 1964 was enacted . . . [v]irtually everyone
in America now understands that it is both ‘wrong’ and
‘illegal’ to discriminate intentionally.” H.R. Rep. No. 644
Part 1, 101st Cong., 2d Sess. 9 (1990). The hostile work
‘environment to which Barbara Landgraf was subjected
unquestionably violated Title VII, as the lower courts
found. And the discriminatory conduct of the respondent
in Rivers as alleged violated both Title VII and Section
1981 as then interpreted by the courts.”*
14]t should be kept in mind that hundreds of pending Section
1981 cases were dismissed by the lower courts and jury awards in
favor of plaintiffs overturned following this Court’s decision in
Patterson, although the conduct at issue in those cases was recog-
nized to be unlawful under Section 1981 (and Title VII) prior to
that decision. See supra note 5; H.R. Rep. No. 644 Part 1, 101st
Cong., 2d Sess. 18 (1990); Civil Rights Act 1990 House Hearings,
:
29
The final prong of the “injustice” test examines the
“possibility that new and unanticipated obligations may
be imposed upon a party without notice or an oppor-
tunity to be heard.” Bradley, 416 U.S. at 720. This
concern is not implicated here for the very reasons set
forth by this Court last Term in Franklin v. Gwinnett
County. In its ruling that compensatory damages are
available in Title [IX cases in which intentional discrim-
ination is alleged, this Court held that no notice problem
arises, precisely because the violation is intentional. See
Franklin, 112 S. Ct. at 1037. The instant cases likewise
involve adjudicated or alleged acts of intentional discrim-
ination, and the statutes at issue here, 42 U.S.C. §§ 1981
and 198la, apply only to intentional discrimination.
Thus, the respondents in the instant cases can have no
more claim of “injustice” or “unfairness” in the avail-
ability to the petitioners of an effective remedy for inten-
tional wrongdoing than did the defendants in Franklin.
The Court properly rejected such a notion in Franklin
and it should likewise do so here."®
In sum, Bradley demonstrates that there would be no
“injustice,” let alone “manifest” injustice, in applying the
Civil Rights Act of 1991 to pending cases. Indeed, for
all the reasons discussed in Sections I and II, supra, it
would be manifestly unjust to continue to leave victims of
intentionally unlawful conduct without an adequate
supra, Vol. 3 at 311-14 (statement of Patricia Carroll). Given the
courts’ retroactive application of Patterson to pre-Patterson con-
duct and cases, it would be most ironic and unjust for the corrective
legislation not to be applied in the cases of numerous plaintiffs who
would otherwise be caught in a judicially-created remedy gap, and
it would create a windfall for defendants who had intentionally
engaged in discriminatory conduct understood to be unlawful.
1° The fact that a prayer for compensatory damages would give
a defendant the right to a jury trial or require “a retrial on dam-
ages before a properly instructed jury” does not implicate the
“manifest injustice” exception to retroactivity. See Gulf Offshore
Co. V. Mobil Oil Corp., 453 U.S. 473, 486 n.16 (1981).
30
remedy and permit the wrongdoers to escape without lia-
bility, or, even worse, with an order that their court costs
be paid by their victims.
CONCLUSION
The decision of the Court of Appeals in each of these
cases should be reversed and remanded.
Respectfully submitted,
Of Counsel: JUDITH E. SCHAEFFER
ELLEN J. VARGYAS Counsel of Record
NATIONAL WOMEN’S LAW ALEXANDER WOHL
CENTER DICKSTEIN, SHAPIRO & MORIN
1616 P Street, N.W. 2101 L Street, N.W.
Suite 100 Washington, D.C. 20037
Washington, D.C. 20036 (202) 785-9700
April 30, 1993 Counsel for Amici Curiae
APPENDIX
la
APPENDIX
STATEMENTS OF INDIVIDUAL AMICI CURIAE
The National Women’s Law Center (NWLC) is a
non-profit legal advocacy organization dedicated to the
advancement and protection of women’s rights and the
corresponding elimination of sex discrimination from all
facets of American life. Since 1972, NWLC has worked
to secure equal opportunity in the workplace through the
full enforcement of Title VII of the Civil Rights Act of
1964 as amended. NWLC strongly supported enactment
of the Civil Rights Act of 1991 and believes that the
amendments made by the Act are properly applied to
litigation pending on the date of its enactment.
The Women’s Legal Defense Fund (WLDF) is a na-
tional advocacy organization that was founded in 197]
to advance the rights of women in the areas of work and
family. WLDF works to challenge gender discrimination
in the workplace through litigation of significant sex dis-
crimination cases, public education, and advocacy for im-
provements in the equal employment opportunity laws
and their interpretation before Congress and the federal
agencies charged with their enforcement. Throughout
this work, WLDF has placed special emphasis on equal
employment opportunity for women of color, who often
face job discrimination based on both race and gender.
The American Association of University Women
(AAUW) has promoted equity and education for women
and girls since 1881. AAUW’s 130,000 members are
committed to achieving equal opportunities and fair
treatment for women in the workplace.
The American Association of University Women Legal
Advocacy Fund provides funding and a support system
for women seeking judicial redress for sex discrimina-
tion. Since it was founded in 1981, the Legal Advocacy
Fund has supported the lawsuits of more than 22 women
2a
filing employment discrimination cases against institutions
of higher education.
The American Civil Liberties Union (ACLU) is a
nationwide, onprofit, nonpartisan organization with
nearly 300,000 members dedicated to preserving and en-
hancing the fundamental civil rights and civil liberties
embodied in the Constitution and civil rights laws of this
country. In particular, the ACLU has long been involved
in the effort to eliminate racial discrimination in our
society. The Women’s Rights Project of the ACLU Foun-
dation was established to work toward the elimination of
gender-based discrimination in our society. In pursuit
of that goal, the ACLU has participated in numerous
discrimination cases before this Court and worked for the
passage of the Civil Rights Act of 1991.
The Americans for Democratic Action, a progressive,
independent political organization, is a national coalition
of civil rights and feminist leaders, academicians, busi-
ness people and trade unionists, grass roots activists,
elected officials, church leaders, professionals, members
of Congress and many others.
The California Women’s Law Center (CWLC) is a
private, non-profit public interest law center specializing
in the civil rights of women and girls. CWLC was estab-
lished in 1989 to address the comprehensive civil rights
of women and girls in the following priority areas: sex
discrimination, including sex discrimination in education,
reproductive rights, family law, violence against women,
child care, and discrimination in employment. The appli-
cation of the Civil Rights Act of 1991 will have a far
reaching impact on women who are currently pursuing
their rights through the courts and who will be left without
a remedy if the Civil Rights Act of 1991 is limited in
its application.
The Center for Women Policy Studies was founded in
1972 as the first national policy research and advocacy
Se AO tt early ey A “ —
SP tp Cee shies ae owe.
3a
institute focused exclusively on issues of social and eco-
nomic justice for women. The Center conducts research
and advocacy programs on sexual harassment and vio-
lence against women, work/family and “diversity” policies
of employers, education, and other relevant issues.
The Coalition of Labor Union Women (CLUW) is a
national membership organization of women and men
who are members of more than 65 international unions.
CLUW has 45 active chapters and a National Executive
Board composed of the female leadership of these inter-
national unions. A primary purpose of this national coali-
tion is to remove all forms of discrimination from the
workplace.
_ Equal Rights Advocates, Inc. (ERA) is a San Fran-
cisco-based public interest legal and education corpora-
tion dedicated to working through the legal system to
secure equality for women. ERA has a long history of
interest, activism, and advocacy in all areas of the law
that affect equality between the sexes. Since its inception
almost 20 years ago, ERA has specialized in litigating
employment discrimination cases, many of which are Title
VII cases. By extending the benefits of the Civil Rights
Act of 1991 to pending cases, society will be able to
move more quickly to end unfair treatment and assure
equality to all of its citizens.
Federally Employed Women, Inc. (FEW) is an in-
ternational non-profit organization representing gyer one
million civilian and military women employed by the
federal government. Since its inception in 1968, FEW’s
primary objective has been to eliminate sex discrimina-
tion and enhance career opportunities for women in gov-
ernment. Recognizing the need for full enforcement of
Title VII of the Civil Rights Act of 1964, as amended.
FEW strongly supported enactment of the Civil Rights
Act of 1991 and remains committed to ensuring that the
procedures and remedies under that statute are fully
4a
available to all victims of employment discrimination, in-
cluding those persons whose cases were pending on its
effective date.
The Feminist Majority Foundation is a non-profit,
501(c)(3) research and education organization, which
seeks to transform the public debate on issues of im-
portance to women’s lives, and to empower women
through educational and research projects. The Founda-
tion is committed to eradicating gender and racial dis-
crimination and sexual harassment in the workplace and
in all sectors of society.
The Japanese American Citizens League (JACL) is
the largest Asian American civil and human rights or-
ganization in the United States, consisting of 113 chap-
ters nationwide. Since its formation as a non-profit or-
ganization in 1929, JACL has participated, either as
a party or as amicus curiae, in many legal actions that
have challenged racial discrimination against Japanese
Americans and other Asian Americans. It has also sup-
ported the passage of legislation aimed at eradicating
discrimination based on race, national origin, gender, re-
ligion, sexual orientation and disabilities.
The National Committee on Pay Equity (NCPE) is
a coalition of labor unions, women’s and civil rights
organizations - working exclusively on the problems of
wage discrimination against women and people of color.
NCPE represents the interests of over 20 million work-
ing Americans and worked in coalition with other civil
rights organizations to enact the Civil Rights Act of
1991. We feel strongly that the Civil Rights Act Amend-
ments should apply to all cases pending on the date the
legislation became law, not just to those concerning con-
duct after the date of enactment. This issue is vital to
safeguarding the rights of workers and ensuring that the
law consistently and thoroughly protects workers against
discriminatory conduct at the hands of employers.
Sa
The National Council of Jewish Women (NCJW),
founded in 1893, is the oldest Jewish women’s volunteer
organization in America. NCJW’s 100,000 members in
more than 500 communities nationwide dedicate them-
selves, in the spirit of Judaism, to advancing human
welfare and the democratic way of life through a combi-
nation of social action, education and community service.
An active supporter of the Civil Rights Act of 1991 and
its application to pending cases, the National Council of
Jewish Women believes that individual liberties and
rights guaranteed by the Constitution are keystones of a
free and pluralistic society. Based on NCJW’s National
Resolutions stating our resolve to work for the “enforce-
ment of sexual harassment laws and more stringent penal-
ties for violators,” we join this Brief.
The National Council of Negro Women, Inc. (NCNW)
is a voluntary, community-based, non-profit membership
organization founded in 1935. It has 33 National affil-
iate organizations and 250 community-based sections with
an outreach to four million women. NCNW affirms its
support of this amicus Brief in support of the application
of the Civil Rights Act of 1991 to pending cases. As
African American women, the issues of race discrimina-
tion and sexual harassment are of our utmost critical
concern. Without application of the 1991 Act to pending
cases, many victims of discrimination will be without
recourse to address these egregious acts.
The National Organization for Women (NOW) is the
nation’s largest organization devoted to the advancement
of women’s rights, with over 280,000 members and more
than 700 chapters in all 50 states and the District of
Columbia. NOW has, since its inception, endorsed and
promoted civil rights for all people. Hence, NOW actively
worked for the passage of the Civil Rights Act of 1991
and supports its application to pending cases as an im-
portant element of full protection against employment
discrimination.
6a
The NOW Legal Defense and Education Fund (NOW
LDEF) is a leading national non-profit civil rights or-
ganization that performs a broad range of legal and
educational services in support of women’s efforts to elim-
inate sex-based discrimination and secure equal rights.
NOW LDEF was founded in 1970 by leaders of the Na-
tional Organization for Women. A major goal of the
NOW LDEF is the elimination of barriers that deny
women economic opportunities. In furtherance of that
goal, NOW LDEF has participated in numerous cases
to secure full enforcement of the laws prohibiting employ-
ment discrimination, including Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991),
appeal pending (11th Cir. argued Dec. 2, 1992).
The National Women’s Conference Committee, ap-
pointed under Public Law 94-167 to implement the 1977
National Plan of Action for Women, is committed to
address both sexual harassment (on which it has a na-
tional task force) and race discrimination (as addressed
in the National Plan).
The National Women’s Party was founded in 1913 by
Suffragist Alice Paul, who was instrumental in passage
of the 19th Amendment granting women the right to vote
and who wrote the Equal Rights Amendment in 1923.
Since the National Women’s Party believes that all per-
sons should be treated equally under the law regardless
of gender, race or class, we join with the National Wom-
en’s Law Center in support of applying the Civil Rights
Act of 1991 to pending cases. Prevailing plaintiffs should
be allowed a remedy for the discrimination they suffered
and should not be deprived of a remedy because of the
timing of the discrimination.
The Northwest Women’s Law Center is a non-profit
organization in Seattle, Washington, that works to ad-
vance the legal rights of women through litigation, educa-
tion, and legislative advocacy, and by providing infor-
;
:
:
'
7a
mation and referrals to women with legal problems. One
of the Law Center's priorities is the elimination of sex
discrimination in employment. The Law Center has par-
ticipated in several cases involving sex discrimination in
employment before the United States Supreme Court, in-
cluding Price Waterhouse v. Hopkins and California Fed-
eral Savings & Loan Association v. Guerra.
People For the American Way (People For) is a non-
partisan, education-oriented citizens’ organization estab-
lished to promote and protect civil and constitutional
rights. Founded in 1980 by a group of religious, civic
and educational leaders devoted to our nation’s heritage
of tolerance, pluralism and liberty, People For now has
over 300,000 members nationwide. People For has been
actively involved in efforts to combat discrimination and
promote equal rights, including supporting the enactment
of the Civil Rights Act of 1991, participating in civil
rights litigation, and conducting programs and studies
directed at reducing problems of bias, injustice and
discrimination.
The U.S. Section of the Women’s International League
for Peace & Freedom is pleased to join this Brief in
support of the application of the Civil Rights Act of 1991
to pending cases. We have long worked to end inequity
and discrimination of all kinds.
Women Employed is a national organization of work-
ing women, based in Chicago, with a membership of
2000. Women Employed works to empower women to
improve their economic status and to remove barriers to
economic equity through advocacy, direct service and
public education. Since 1973, the organization has as-
sisted thousands of working women with problems of sex
discrimination, especially in the area of sexual harass-
ment. The organization has a long history of monitoring
the performance of equal employment opportunity en-
forcement agencies, analyzing equal opportunity policies,
8a
and developing detailed proposals for improving enforce-
ment efforts.
The Women’s Law Project (WLP) is a non-profit,
feminist legal advocacy organization, located in Philadel-
phia. Founded in 1974, WLP works to abolish discrimi-
nation and injustice and to advance the legal and eco-
nomic status of women and their families through litiga-
tion, public education, and individual counseling. During
the past nineteen years, WLP’s activities have included
extensive work in the area of sex discrimination in em-
ployment. WLP has a strong interest in the eradication
of sex and race discrimination in the workplace, and in
the availability of the strong and effective remedies of
the Civil Rights Act of 1991 to cases pending on the date
of its enactment.
The YWCA of the U.S.A. is a national women’s mem-
bership crganization committed to the empowerment of
women and the imperative to eliminate racism. Strength-
ened by diversity, the Association draws together mem-
bers from varied economic, racial, ethnic, age, and reli-
gious groups who strive to create opportunities for
women’s growth, leadership and power. Because of our
mission to obtain peace, justice, freedom and dignity for
all people, we join as amicus curiae in support of the
application of the Civil Rights Act of 1991 to cases
pending on the date of its enactment.
A i at tt At me a i ly i a Ne aN tk 5 A ce NONE 5 a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.