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

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