Amicus Curiae Brief — Rivers v. Roadway Express, Inc.

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| Suprema Cour, U8

Nos. 92-757 and 92-938 ELip

IN THE PR 30 1993

Supreme Court of the Wnited States

OCTOBER TERM, 1992

>

BARBARA LANDGRAF,

Petitioner,

USI FILM PRODUCTS, 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 EXPRESS, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF ASIAN AMERICAN LEGAL DEFENSE AND

EDUCATION FUND, ASIAN LAW CAUCUS, INC., AND ASIAN

PACIFIC AMERICAN LEGAL CENTER OF SOUTHERN

CALIFORNIA, AS MEMBERS OF NATIONAL ASIAN PACIFIC

AMERICAN LEGAL CONSORTIUM, ET AL., AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Stanley Mark Denny Chin

Asian American Legal Defense Counsel of Record

& Education Fund Ellen A. Hamrick

99 Hudson Street Vladeck, Waldman, Elias

New York, New York 10013 & Englehard, P.C.

Angelo N. Ancheta 1501 Broadway, Suite 800

New York, New York 100

Kathryn K. Imahara Cw York, New Yor 36

Asian Pacific American Legal

Center of Southem Califomia

1010 South Flower Street

Los Angeles, California 90015

April 30, 1993

(212) 354-8330

Doreena Wong

Asian Law Caucus, Inc.

468 Bush Street

San Francisco, California 94108

Se ee ey

se 4. he) hee

2 See awe ee a ee ee re

TABLE OF CONTENTS

PAGE

FARE GF AUTRE E ED vcccvccccccccvecsvcsecsctcenss il

SOC Dees COP AIC CURIAR on cscs cccvccncccssccseens l

GTS S.kcndicccwndsotetrescissxecssuuenecyenici 3

POINT I

THE PLAIN LANGUAGE OF THE 1991 ACT

REQUIRES THAT IT BE APPLIED TO PEND-

SPN SED 0 Kn0ca0eneetescisaveccapneeniiateawaae 3

POINT II

THE PUBLIC POLICY CONSIDERATIONS

STRONGLY SUPPORT APPLICATION OF

THE 1991 ACT TO PENDING CASES ............. 6

A. The Purposes Of the 1991 ACt.......ccccccveces 6

B. ‘fhe Failure to Apply the 1991 Act To Pending

Cases Will Leave Many Victims of Discrimina-

tion Without A Remedy ........cccscccccecccees 8

C. Victims of Discrimination in Pending Cases Who

Have Proven their Entitlement to Relief Under

Title VII are Entitled to the Remedies Congress

Made Available Through the 1991 Act.......... id

D. Employers Will Not Be Prejudiced Nor Will

Manifest Injustice Result From Application

of the 1991 Act to Pending Cases.............. 11

CRIP TS vovbcdsdecccsecdnnpnddantasdesqhasaeeeaeet 15

STATEMENTS OF AMICI CURIAE .......cccssccucecess la

il

TABLE OF AUTHORITIES

Cases PAGE

Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1975)........ 14

Albemarle Paper Co. v. Moody, 422 U.S. 405

EE er 6,7, 10, 11

Antonio v. Wards Cove Packing Co., Nos. 91-35306,

EEE ee 3

Bowen v. Georgetown University Hospital, 488 U.S. 204

eee es be ebbkseesees 0essceseccec 11,14

Bradley v. Richmond School Board, 416 U.S. 696

crc c dees hevsceccetseescceseces 11,14

Bridges v. Eastman Kodak Co., 800 F. Supp. 1172

Ne ee eka Case sh eeercesceseccecs 12

Croce v. V.1.P. Real Estate, 786 F. Supp. 1141 (E.D.N-Y.

SR Pe DES Se 12-13

Denver and Rio Grande Western Railroad Co. vy.

Brotherhood of Railroad Trainmen, 387 U.S. 556

ee deci csda nas Seeieccesccccecces 11

EEOC v. Vucitech, 842 F.2d 936 (7th Cir. 1988)......... 13

Estate of Reynolds v. Martin, 985 F.2d 470 (9th Cir.

eats sc kien se ekbstedevesascceceese 3-5

FDIC v. 232, Inc., 920 F.2d 815 (11th Cir. 1991)........ 14

FDIC v. Wright, 942 F.2d 1089 (7th Cir. 1991), cert.

ee: ) ne 14

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) .......... 6,7

Franklin v. Gwinnett County Public Schools, 503 U.S.

ee er, ie CODED oc cscccsccscccceccees 9,10

“?

ili

PAGE

Franks v. Bowman Transportation Co., 424 U.S. 747

ED RRE oh ii dene die cidn es taceenncddeddasdess 6,7

Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th

EE a a ceeueuaies 5

Gersman v. Group Health Association, Inc., 975 F.2d

Kl ee ee ee 5

Jackson v. Bankers Trust Co., No. 88 Civ. 4786, 1992

U.S. Dist. LEXIS 6290 (S.D.N.Y. 1992).......... 12, 13

Kirkbride v. Continental Casualty Co., 933 F.2d 729

MEE c Sadecdscdbsendesecencccencensecccounce 14

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974).............. 14

Littlefield v. McGuffey, 954 F.2d 1337 (7th Cir.

PE aecdssndhdbecsitevecencesséeasscacesesonvcesess 14

Luddington v. Indiana Bell Telephone Co., 966 F.2d 225

EY DE edocecccncvesscececucesecceccaccesveces 13

Patterson v. McLean Credit Union, 491 U.S. 164

DT ii egundegnedecteccets tacsecscesecceceececa: passim

Pension Benefits Guaranty Corp. v. R.A. Gray & Co.,

467 U.S. 717 (1984) 00 c ccc 14

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.

GP CE oreccccscceveccoccocccccccscescoesccecoeses 4,5

United States v. Alabama, 362 U.S. 602 (1960).......... 13

United States v. Marengo County Commission, 731 F.2d

1546 (ilth Cir. 1984)... 20000 14

United States v. Menasche, 348 U.S. §28 (1955)......... 4

United States v. O'Connell, 890 F.2d 563 (ist Cir. 1989) 14

iV

PAGE

United States v. Pani, 717 F. Supp. 1013 (S.D.N_Y.

Pub bédcwansadadeuhidend eeeudsnateinennecndadawedes 14

United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th

Cir. 1989), cert. denied, 494 U.S. 1057 (1990)..... 14

Wards Cove Packing Co. v. Antonio, 490 U.S. 642

SHU ckccudusesddeinbendeanesudusbescuseccaatanes passim

Wisdom v. Intrepid Sea-Air-Space Museum, No. 91 Civ.

4439, 1992 U.S. Dist. LEXIS 9424 (S.D.N_Y. 1992)

NE EE cic dvacdvenabunsenvenbiacdddudaneuns 12

Statutes

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

Pe ED 4apdacshetadieackeindesidusawiswedudds passim

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

REL, concupsnsecesddonbanadudessdeeses passim

Title IX of the Education Amendments of 1970, 20

oe vy)

Ur Cn ae passim

Miscellaneous

United States Commission on Civil Rights, Civil Rights

Issues Facing Asian Americans in the 1990s

Se EE SGidded dicardusndstenskeukess4saneens 1,2

Steven A. Holmes, Workers Find /t Tough Going Filing

Lawsuits Over Job Bias, New York Times, July 24,

Pn OE Uaiddeiddusdohsadaedene caus saneveseteuedees 6

INTEREST OF AMICI CURIAE

This bricf is respectfully submitted by the Asian American

Legal Defense and Education Fund, the Asian Law Caucus,

Inc., and the Asian Pacific American Legal Center of Southern

California, as members of the National Asian Pacific American

Legal Consortium, Inc., and other Asian American civil rights

and civil liberties groups’ as amici curiae in support of peti-

tioners’ appeals from the decisions below holding that the Civil

Rights Act of 1991, Pub.L.No. 102-166, 105 Stat. 1071 (1991)

(the “1991 Act” or the “Act”) does not apply to cases pending

when it became law. For the reasons set forth below and in the

bricfs of petitioners and other amici in support of petitioners,

the amici herein urge the Court to reverse and hold that the Act

does apply to pending cases.

Employment discrimination is one of the principal problems

facing Asian Americans today, and all the amici herein are

committed to the goals of climinating discrimination in

employment against Asian Americans and ensuring the fair and

equal treatment of Asian Americans in all aspects of society.’

The United States Commission on Civil Rights recently

highlighted the probiems encountered by Asian Americans in

employment:

Asian Americans face a number of barricrs to equal par-

ticipation in the labor market. Many of these barriers are

l Petitioners and respondents in both cases have consented to the fil

ing of this brief. Appended to this brief are statements of the organizations

that have joined in this brief as amici curiac.

2 With a population of roughly 7.3 million, Asian Americans today

make up almost 3% of the population of the United States. Over the past

decade, Asian Americans have increased dramatically in number from |. 5%

to 2.9% of the total population. The rate of the population growth of Asian

Americans in the United States from 1980 to 1990 was 107.8%. more than

double the rate for Hispanics (53%) and far exceeding the rates for Whites

(6%) and Blacks (13.2%) during the same period United States Commission

on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s

(February 1992) (“USCCR Report”) at 13-15

2

encountered to a greater degree by the foreign born, who

often confront linguistic and cultural barriers to finding

employment commensurate with their education and expe-

rience, but even third- or fourth-generation Asian Amer-

icans find their employment prospects diminished because

employers have stereotypical views of Asians and preju-

dice against citizens of Asian ancestry. Employment dis-

crimination, to varying degrees, is a problem facing all

Asian Americans. . . . [E]mployment discrimination

against Asian Americans ranges from discrimination

based on accent or language, to discrimination caused by

our nation’s immigration control laws, to artificial barri-

ers preventing many Asian Americans from rising to man-

agement positions for which they are qualified.

USCCR Report at 130.

Hence, the issue of the applicability of the 1991 Act to pend-

ing Cases is a question of great importance to the Asian Amer-

ican community, for if the decisions of the Fifth and Sixth

Circuits in these cases are affirmed, many victims of employ-

ment discrimination will find themselves with drastically lim-

ited remedies—or no remedy at all. As this Court has

repeatedly recognized, Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000(e) et seg. (“Title VII"), is to be con-

strued liberally to further its goals of cradicating discrimina-

tion and making victims of discrimination whole; those goals

will only be frustrated by affirmance of the decisions below.

The language of the 1991 Act strongly supports the view that

it should be applied to pending cases generally, for Section

402(a) states that “this Act shall take effect upon enactment.”

When Congress did not want the Act to be applied to a par-

ticular pending case or to particular conduct that occurred

before its enactment, Congress explicitly so provided. From the

point of view of the Asian American community, the irony is

that Congress explicitly provided that the 1991 Act was not

applicable to a pending case that had been brought by a group

of Asian Pacific American workers. Section 402(b) explicitly

eK

3

provides that the Act shall not be applied to Wards Cove Pack-

ing Co. v. Antonio, 490 U.S. 642 (1989). Although the Act was

passed in part because of Congress's recognition that the Wards

Cove decision “weakened the scope and effectiveness of Fed-

eral civil rights protections” (1991 Act § 2), the workers who

had fought the Wards Cove case for twenty years were explic-

itly denied the Act’s protections. While the Wards Cove exemp-

tion should certainly be repealed,’ its inclusion demonstrates

that the Act should be applied to pending cases generally.

ARGUMENT

POINT I

THE PLAIN LANGUAGE OF THE 1991 ACT REQUIRES

THAT IT BE APPLIED TO PENDING CASES

The plain language of the 1991 Act demonstrates that it

should be applied to pending cases. First, Section 402(a) of the

1991 Act states that “|e}xcept as otherwise specifically pro-

vided, this Act and the amendments made by this Act shall take

effect upon enactment.” (Emphasis added). This language

plainly provides for the 1991 Act to take effect immediately,

and it gives “ ‘some indication that [Congress] believed that

application of [the Act's] provisions was urgent’.” Estate of

Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir. 1993) (quoting

In re Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984)). More-

3 The Wards Cove exemption is being attacked on both the legislative

and judicial fronts. A bill to amend the 1991 Act by deleting Section 402(b)

is pending in the House of Representatives. H.R. 1172, 103d Cong., 1st Sess..

entitled “The Justice for Wards Cove Workers Act.” The Wards Cove case is

itself still being litigated in the Ninth Circuit, and some of the amici herein

have argued that the Wards Cove exemption in the 1991 Act violates the

Equal Protection Clause of the Constitution by singling out a group con-

sisting primarily of Asian American workers and that it also violates the Sep-

aration of Powers Clause in that Congress has impermissibly attempted to

control the outcome of a particular litigation. Antonio v. Wards Cove Pack.

ing Co., Nos. 91-35306, 91-35861 (9th Cir.).

4

over, the language of Section 402(a) does not on its face

exclude or carve out any exception for pending cases.

Second, when Congress did not want provisions of the 1991

Act to apply retroactively, it explicitly so provided. Thus, Sec-

tion 402(b)—the Wards Cove exemption—declares that “noth-

ing in this Act shall apply to any disparate impact case for -

which a complaint was filed before March 1, 1975, and for

which an initial decision was rendered after October 30,

1983." Likewise, Section 109(c) of the Act, which extends

Title VII to United States citizens working for American com-

panies abroad, states that it “shall not apply with respect to

conduct occurring before the date of the enactment of this Act.”

When Sections 402(a), 402(b) and 109(c) are read together,

it is clear that the “[e}xcept as otherwise specifically provided”

language in Section 402(a) refers to Sections 402(b) and

109(c), for those are the “only provisions of the Act that can be

read as specifically departing from the general rule.” Estate of

Reynolds, 985 F.2d at 473. Hence, when read in the light of the

1991 Act as a whole, Section 402(a) can only mean that the Act

must be applied to pending cases in general. Any other inter-

pretation would render Sections 402(b) and 109(c) meaning-

less, thereby violating the basic tenet of statutory construction

that a statute is not to be read so that any portion will be ren-

dered superfluous. See South Carolina v. Catawba Indian

Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) (“It is an ‘elemen-

tary canon of construction that a statute should be interpreted

SO as not to render one part inoperative’ ") (quoting Colautti y.

Franklin, 439 U.S. 379, 392 (1979)); United States v.

Menasche, 348 U.S. 528, 538-39 (1955).

Several courts have held that Sections 109(c) and 402(b)

were intended merely as “insurance policies” to protect against

retroactive application of the two provisions in the event that

the courts were to determine that the 1991 Act as a whole was

4 The only case that fits this description, of course, is Wards Cove.

5

to be applied to pending cases. Gersman v. Group Health

Ass'n, Inc., 975 F.2d 886, 890 (D.C. Cir. 1992); Fray v. Omaha

World Herald Co., 960 F.2d 1370, 1377 (8th Cir. 1992)

(“retroactivity opponents ‘hedged their bets’ by expressly mak-

ing specific provisions ... prospective only”). Although the

courts in Gersman and Fray acknowledged that Sections 109(c)

and 402(b) would be rendered inoperative by a decision that

the 1991 Act did not apply to pending cases, they reasoned that

this was precisely what Congress intended.

The reasoning of the courts in Gersman and Fray should be

rejected, for it undermines the long-standing principles of

statutory construction set forth in South Carolina v. Catawba

Indian Tribe, Inc., 476 U.S. at 510 n.22. Moreover, as the Ninth

Circuit recognized in Estate of Reynolds, 985 F.2d at 478, Sec-

tions 109(c) and 402(b) are not worded as mere “redundant

assurances,” and if they were only intended to be “insurance

policies,” they would have been worded differently. As the

court observed:

If the statutory language of those sections read: “Notwith-

standing any judicial construction concerning the retroac-

tivity of this Act in general, this section shall not apply

with respect to conduct occurring before the date of enact-

ment of this Act,” we would have an entirely different

case. But sections 402(b) and 109(c) as actually enacted

simply do not read like insurance clauses.

985 F.2d at 478.

The Ninth Circuit recognized in Estate of Reynolds that some

members of Congress probably voted in favor of Sections

402(b) and 109(c) with the belief that these sections would be

construed by the courts as “insurance” clauses, and that other

members probably voted for these sections with the belief that

the language of these sections would compel the courts to find

that the 1991 Act in general applied to pending cases. Given

the “clear text of the Act,” the court held that those individual

members’ beliefs are unimportant. 985 F.2d at 478. Regardless

6

of the beliefs of individual members of Congress as to the

desirability of applying the Act to pending cases, “the legis-

lators as a body enacted a Statute that, consistent with estab-

lished principles of statutory construction, can only be read one

way,” id., namely, in favor of application to pending cases.

Finally, the plain language of the 1991 Act should be con-

strued in light of Supreme Court precedent requiring the liberal

construction of civil rights laws, Ford Motor Co. v. EEOC, 458

U.S. 219, 226, 228, 233 n.20 (1982); Franks v. Bowman Trans-

portation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co.

v. Moody, 422 U.S. 405, 416 (1975), which, as set forth at Point

Il, infra, supports the application of the 1991 Act to pending

cases.

POINT II

THE PUBLIC POLICY CONSIDERATIONS STRONGLY

SUPPORT APPLICATION OF THE 1991 ACT

TO PENDING CASES

A. The Purposes of the 1991 Act

In the year prior to the enactment of the 1991 Act, Congress

appointed a committee of lawyers and judges to study the Fed-

eral court system. The committee found that, because the reme-

dies available to victims of employment discrimination were

generally limited to backpay, the monetary stakes were often so

small that, “even with the potential to recover attorneys fees,

claimants sometimes find it difficult to litigate in Federal court

because they cannot find counsel to take their cases.” Steven A.

Holmes, Workers Find It Tough Going Filing Lawsuits Over Job

Bias, N.Y. Times, July 24, 1991, p. Al, As a result, individuals

who have been denied employment opportunities on the basis of

race or sex, or any other basis unlawful under Title VII, have

been left without a remedy, and a legislative scheme that relies

heavily on the work of “private attorneys general” has been hin-

dered by the economic impediments to the vindication of federal

Statutory rights by individuals.

7

Thus, when it enacted the 1991 Act, Congress expressly

found that additional remedies were needed both to provide

victims of discrimination with additional protections against

discrimination, and to enhance the effectiveness of the laws

prohibiting discrimination in employment. Section 2 of the

1991 Act provides:

The Congress finds that—

(1) additional remedies under Federal law are needed to

deter unlawful harassment and intentional discrimination

in the workplace; (2) the decision of the Supreme Court in

Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989)

has weakened the scope and effectiveness of Federal civil

rights protections and; (3) legislation is necessary to pro-

vide additional protections against unlawful discrimina-

tion in employment.

As this Court has long made clear, Title VII is to be con-

strued liberally to further its goals of eradicating discrimina-

tion in the workplace and making whole the victims of

discrimination. Ford Motor Co. v. EEOC, 458 U.S. 219, 226,

228, 233 n.20 (1982); Franks v. Bowman Transportation Co.,

424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422

U.S. 405, 416 (1975). It was against the backdrop of this judi-

cial precedent and the diminished effectiveness of the civil

rights laws that Congress enacted the 1991 Act.

If the Court determines that the 1991 Act should not be

applied to pending cases, victims of unlawful discrimination

who succeed in proving unlawful conduct on the part of an

employer will be deprived of the remedy Congress has deter-

mined is necessary to make victims of discrimination whole for

their injuries. Even worse, victims of discrimination who, prior

to this Court’s decision in Patterson, chose to pursue their

claims under 42 U.S.C. § 1981, rather than under Title VII, will

find themselves with no remedy at all.

8

B. The Failure to Apply the 1991 Act To Pending Cases

Will Leave Many Victims of Discrimination Without A

Remedy

Prior to this Court's decision in Patterson, individuals who

suffered discrimination on the basis of race in connection with

an employment decision believed that they could choose

between pursuing their claims under Title VII and pursuing

their claims under 42 U.S.C. § 1981. If an individual chose the

former, he or she would have had to comply with the admin-

istrative prerequisites of Title VII by filing a charge of dis-

crimination with the EEOC within 180 (or 300) days of the

challenged emp!oyment decision. 42 U.S.C. § 2000e-5(¢). He

or she then would have had to wait 180 days from the date on

which the charge was filed to request that the EEOC issue a

notice of right to sue. 42 U.S.C. § 2000e-5(f). Based on the

pre-Patterson assumption that all claims of race discrimination

in employment were actionable under 42 U.S.C. § 1981, many

individuals chose simply to pursue their claims under 42

U.S.C. § 1981, either because they did not believe their claims

could be resolved through the EEOC, or because they wished

lo recover compensatory damages previously unavailable under

Title VII, or both. For those individuals who intended to pur-

sue their claims through litigation, this choice not only imple-

mented their individual preferences, but it also avoided the

needless expenditure of EEOC resources, preserving those

resources for those individuals who wished to attempt to

resolve their claims administratively.

While the decision not to file a charge of discrimination with

the EEOC meant foregoing their claims under Title VII, prior

to Patterson, victims of race discrimination had no reason to

worry about foregoing such claims, since a remedy was widely

understood to be available under 42 U.S.C. § 1981. Unfortu-

nately for those individuals who forbore pursuing their Title

VII claims in reliance on that understanding and had actions

pending at the time that Patterson was decided, that decision

was applied retroactively, thereby not only depriving them of

9

the remedies available under 42 U.S.C. § 1981, but actually

depriving them of any remedy whatsoever. These individuals

will find themselves without any remedy for the unlawful dis-

crimination to which they were subjected. The application of

the 1991 Act to pending cases is necessary in order to enable

individuals in these circumstances to vindicate their federal

Statutory rights.

In Franklin v. Gwinnett County Public Schools, 503 U.S.

__, 117 L. Ed. 2d 208, 218 (1992), the Court reiterated the

general rule, derived from the English common law, that “all

appropriate relief is available in an action brought to vindicate

a federal right.” While Franklin involved a federal statutory

right as to which a private right of action was implied and, as

to which, therefore, “Congress [had] given no indication of its

purpose with respect to remedies,” id., the analysis set forth

there is instructive. This analysis demonstrates the appropri-

ateness of making the remedies set forth in the 1991 Act avail-

able to individuals who prevail in discrimination cases pending

when the Act became law.

Franklin involved a claim by a high school student under

Title IX of the Education Amendments of 1970, 20 U.S.C.

§§ 1681-1688 (“Title IX”), challenging acts of sexual harass-

ment committed by a teacher at the school. 503 U.S. at __.,

117 L. Ed. 2d at 215. Addressing the inadequacy of the tradi-

tional equitable remedies, including backpay, for a victim of

sexual harassment who has not suffered a loss of wages, the

Court held that monetary damages were available in order to

avoid leaving such a victim “remediless.” 503 U.S. at ____, 117

L.. Ed. 2d at 223-24. The Court held,

[I]n this case the equitable remedies [backpay and

prospective relicf] suggested by respondent and the Fed-

eral Government are clearly inadequate. Backpay does

nothing for petitioner, because she was a student when the

alleged discrimination occurred. Similarly, because Hill—

the person she claims subjected her to sexual harass-

10

ment—no longer teaches at the school and she herself no

longer attends a school in the Gwinnett system, prospec-

tive relief accords her no remedy at all.

Franklin, 503 U.S. at __, 117 L. Ed. 2d at 223. This analysis

should guide the Court’s decision with respect to the remedies

that will be made available to victims of discrimination whose

claims were pending when the Act was passed. If the Court

holds that the Act does not apply to pending cases, many

proven victims of unlawful discrimination will be left with

inadequate remedies, and many others will be left “remedi-

less.”

C. Victims of Discrimination in Pending Cases Who Have

Proven their Entitlement to Relief Under Title VII are

Entitled to the Remedies Congress Made Available

Through the 1991 Act

Plaintiffs in pending cases who succeed in proving unlawful

discrimination in the terms and conditions of their employment

should receive the benefit of all the remedies provided by

Congress to make whole victims of discrimination. In analyz-

ing the equitable powers of the courts to fashion a remedy

under Title VII, this Court has stressed the remedial purposes

of Title VII, and noted,

“(WJhere federally protected rights have been invaded, it

has been the rule from the beginning that courts will be

alert to adjust their remedies so as to grant the necessary

relief.”

Albemarle Paper Co. v. Moody, 422 U.S. at 419 (quoting Bell

v. Hood, 327 U.S. 678, 684 (1946)). The Court has stated that,

Where racial discrimination is concerned, “the [district]

court has not merely the power but the duty to render a

decree which will so far as possible climinate the dis-

criminatory effects of the past as well as bar like dis-

crimination in the future.”

1]

Albemarle Paper Co. v. Moody, 422 U.S. at 419 (quoting

Louisiana v. United States, 380 U.S. 145, 154 (1965)). The

Court's reasoning with regard to the scope of a court's equi-

table powers to effect the remedial purposes of Title VII

explains why the remedies provided by Congress to “eliminate

the discriminatory effects of the past” should not be withheld

from individuals whose cases were pending at the time the

1991 Act was passed.

The goals of the federal laws prohibiting discrimination in

employment, as recognized by this Court and as reiterated by

Congress in Section 2 of the 1991 Act, should not be hindered

by a reading of the Act that requires the cases pending at the

time of its enactment be decided under the law that the 1991

Act was enacted to replace. In light of the principles requiring

the liberal construction of civil rights laws in order to further

their goals of eliminating unlawful discrimination, the Act

should be applied to cases pending at the time of its enactment.

D. Employers Will Not Be Prejudiced Nor Will Manifest

Injustice Result From Application of the 1991 Act to

Pending Cases

In many of the cases addressing the applicability of the 1991

Act to pending cases, the issue turned on the application of the

principles of law articulated by this Court in Bradley v. Rich-

mond School Board, 416 U.S. 696 (1974), and Bowen v.

Georgetown University Hospital, 488 U.S. 204 (1988). For the

reasons set forth in the briefs of petitioners and other amici, the

Bradley decision should be applied in these cases. While those

arguments will not be repeated here, two policy considerations

should be emphasized.

First, the 1991 Act does not grant plaintiffs additional sub-

stantive rights; rather, its provisions simply augment the pro-

cedures by which plaintiffs may vindicate pre-existing rights.

See Denver and Rio Grande Western Railroad Co. vy. Brother-

hood of Railroad Trainmen, 387 U.S. 556, 563 (1967) (holding

that an act that did not change “substantive law” but only

12

affected “procedure” would be applied to cases pending when

the act was enacted because “ ‘no one has a vested right to any

given procedure’ (citation omitted)’’). This is particularly true

with respect to the provisions of the 1991 Act allowing the

right to a jury trial and compensatory and punitive damages.

Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1177

(S.D.N.Y. 1991) (Carter, J.) (“The jury trial and damages pro-

visions of the [1991 Act] at issue here do not grant plaintiffs

additional substantive rights, but rather are more aptly

described as augmenting the procedures by which plaintiffs

may vindicate thei" pre-existing substantive rights.”); Wisdom

v. Intrepid Sea-Air-Space Museum, No. 91 Civ. 4439, 1992 U.S.

Dist. LEXIS 9424 * 21-22 (S.D.N.Y. 1992) (Patterson, J.)

(appeal pending); Jackson v. Bankers Trust Co., No. 88 Civ.

4786, 1992 U.S. Dist. LEXIS 6290 * 18 (S.D.N.Y. 1992) (Mar-

tin, J.); Croce v. V.1.P. Real Estate, 786 F. Supp. 1141, 1148

(E.D.N.Y. 1992) (Spatt, J.) (rejecting employer's argument that

it had “a matured or unconditional right to be limited in expo-

sure to only certain types of damages that flow from proscribed

conduct’). This is also true with respect to the Section 101 of

the 1991 Act, which reversed the limits on the scope of 42

U.S.C. § 1981 created by Patterson v. McLean Credit Union,

491 U.S. 164 (1989), since conduct that is unlawful under Sec-

tion 101 of the Act is already unlawful under Title VII. By per-

mitting victims of race discrimination in employment to seek

relief under 42 U.S.C. § 1981, the 1991 Act simply provides

such victims with an alternative to Title VII and with remedies

not previously available under Title VII.

Second, application of the 1991 Act to pending cases would

not alter any of the existing rights of employers, for under

existing law employers did not have any “right” to a bench tral

or to be free from liability for punitive or compensatory dam-

ages. Wisdom v. Intrepid Sea-Air-Space Museum, No. 91 Civ.

4439, 1992 U.S. Dist. LEXIS 9424 at * 22 (“Defendant never

had a vested or unconditional right to violate federal anti-dis-

crimination laws."); Jackson v. Bankers Trust Co., 88 Civ.

— —EE

13

4786, U.S. Dist. LEXIS 6290 at ** 18-19 (“it cannot be said

that requiring the defendant to submit to a jury trial and subject

itself to expert fees and punitive damages alters any of defen-

dant’s existing rights”); Croce v. V/.P. Real Estate, 786

F. Supp. at 1148 (“The prospect of a defendant facing a jury

trial in lieu of a bench trial, or potential compensatory damages

where none previously existed, simply does not impact on

‘existing rights’.”). See also EEOC v. Vucitech, 842 F.2d 936,

942 (7th Cir. 1988) (“Prospective-only application of the Preg-

nancy Discrimination Act would leave some of the Act's

intended beneficiaries without remedy, while retroactive appli-

cation would neither injure innocent third parties nor be

inequitable to defendants ....”).

While some courts have held that the availability of new

remedies for conduct that has been unlawful at least since the

enactment of Title VII implicates the existing rights of employ-

ers, €.g., Luddington v. Indiana Bell Telephone Co., 966 F.2d

225, 229 (7th Cir. 1992), this reasoning should be rejected, for

it translates into a suggestion that an employer might not have

discriminated had it known that it would be subject to a jury

trial and compensatory and punitive damages—that employers

might have acted differently had they known that the “cost” of

discrimination would include not just backpay but also com-

pensatory and punitive damages. Discrimination in employ-

ment has been absolutely prohibited by Federal law since 1964,

however, and employers should not be permitted to put a price

on discrimination. This Court should reject the view that

employers have a vested right to discriminate under a “cost-

benefit analysis.” Jackson v. Bankers Trust Co. No. 88 Civ.

4786, 1992 U.S. Dist. LEXIS 6290 at * 20 (S.D.N.Y. 1992)

(Martin, J.) (“the Court will not sanction any stance that

employers have a right to discriminate under a cost-benefit

analysis”).

Significantly, other civil rights statutes have been held to be

applicable to cases pending at the time of their enactment. See,

e.g., United States v. Alabama, 362 U.S. 602 (1960) (Civil

14

Rights Act of 1960); Littlefield v. McGuffey, 954 F.2d 1337

(7th Cir. 1992) (amendment to Fair Housing Act removing cap

on punitive damages); United States v. Marengo County

Comm’ n, 731 F.2d 1546 (11th Cir. 1984) (amendments to Vot-

ing Rights Act); Adams v. Brinegar, 521 F.2d 129, 130 (7th Cir.

1975) (1972 amendments to Title VII); Koger v. Ball, 497 F.2d

702 (4th Cir. 1974) (same). Likewise, outside of the civil rights

area, courts have also applied statutory changes to pending

cases. See, e.g., Kirkbride v. Continental Casualty Co., 933

F.2d 729 (9th Cir. 1991) (savings and loan); FDIC v. 232, Inc.,

920 F.2d 815 (11th Cir. 1991) (same); United States v. R.W.

Meyer, Inc., 889 F.2d 1497 (6th Cir. 1989), cert. denied, 494

U.S. 1057 (1990) (environmental); United States v. O'Connell,

890 F.2d 563 (1st Cir. 1989) (False Claims Act); United States

v. Pani, 717 F. Supp. 1013, 1017 (S.D.N.Y. 1989) (False

Claims Act). See also Pension Benefits Guaranty Corp. v. R.A.

Gray & Co., 467 U.S. 717 (1984) (Multiemployer Pension Plan

Amendments Act of 1980). There is simply no reason to dis-

tinguish the 1991 Act from other civil rights statutes or from

other statutes such as the False Claims Act or the environ-

mental laws or the savings and loan statutes.

Ultimately, the key in determining whether a statute should

be applied to pending cases is whether “manifest injustice”

would result. Bradley, 416 U.S. at 711; see FDIC v. Wright,

942 F.2d 1089, 1095 n.6 (7th Cir. 1991), cert. denied, 112 S.

Ct. 1937 (1992) (“Any tension between |Bowen and Bradley)

is negated because, under Bradley, a statute will not be deemed

to apply retroactively if it would threaten manifest injustice by

disrupting vested rights.”). No vested rights would be disrupted

by the application of the 1991 Act to pending cases. On the

other hand, “manifest injustice” will surcly result if victims of

employment discrimination—who have been subjected to

unfair, adverse treatment in the terms of their employment sim-

ply because of their sex or race—are left with remedies that

Congress has acknowledged are wholly inadequate, or, if they

are left with no remedy at all.

15

CONCLUSION

For the foregoing reasons and for the reasons set forth in the

briefs of petitioners and other amici in support of petitioners,

the decisions of the Fifth and Sixth Circuits should be reversed.

Dated: New York, New York

April 30, 1993

Respectfully Submitted,

DENNY CHIN

Counsel of Record

ELLEN A. HARNICK

VLADECK, WALDMAN, ELIAS

& ENGLEHARD, P.C.

1501 Broadway, Suite 800

New York, New York 10036

STANLEY MARK

ASIAN AMERICAN LEGAL DEFENSE

& EDUCATION FUND

99 Hudson Street

New York, New York 10013

ANGELO N. ANCHETA

KATHRYN K. IMAHARA

ASIAN PACIFIC AMERICAN LEGAL

CENTER OF SOUTHERN CALIFORNIA

1010 South Flower Street

Los Angeles, California 90015

DOREENA WONG

ASIAN LAW CAUCUS, INC.

468 Bush Street

San Fancisco, California 94108

APPENDIX

la

STATEMENTS OF AMICI CURIAE

The National Asian Pacific American Legal Consortium,

Inc. (“NAPALC”) was created in 1992 to promote, advance,

and represent the legal and civil rights of the Asian and

Pacific Islander communities through collaborative efforts

and the formation of a national legal structure that pursues lit-

igation, advocacy, education, and public policy development.

NAPALLC is comprised of three organizations dedicated to the

protection of civil rights of Asian and Pacific Islanders: the

Asian American Legal Defense and Education Fund

(“AALDEF”), the Asian Law Caucus, Inc. (“ALC”), and

Asian Pacific American Legal Center of Southern California

(“APALC”).

AALDEF is a not-for-profit civil rights organization that

addresses critical issues facing Asian Americans through

community education, advocacy and litigation. AALDEF’s

program priorities include the elimination of anti-Asian vio-

lence, immigrant rights, voting rights, employment and labor

rights, and redress for Japanese Americans incarcerated in

camps in the United States during World War II.

ALC is a non-profit, public interest legal organization

whose mission is to promote, advance, and represent the legal

and civil rights of the Asian and Pacific Islander communi-

ties. Since 1972, the ALC has provided free or low-cost mul-

tilingual legal services and community education in the areas

of immigration, housing, employment and labor, and civil

rights.

APALC is a non-profit legal organization dedicated to serv-

ing the Asian and Pacific Islander communities through direct

legal services, community education, leadership development,

and advocacy. Founded in 1983, APALC provides multilin-

gual, culturally sensitive legal and education services, with

programs focusing on immigration, family law, language

2a

rights, inter-ethnic relations, dispute resolution, and civil

rights advocacy.

The National Asian Pacific American Bar Association

(“NAPABA”) is a nationwide, non-profit, non-partisan orga-

nization of Asian Pacific American attorneys. Founded in

1989, NAPABA has over 3,000 members and is dedicated to

serving the needs of Asian Pacific American attorneys and

their communities. NAPABA was involved in efforts leading -

to the passage of the 1991 Act.

The Asian Pacific American Labor Alliance, AFL-CIO

(“APALA”), is non-profit labor organization founded in 1992

to, among other things: (1) defend and advocate for the civil

and human rights of Asian Pacific Americans, immigrants and

all people of color; and (2) provide a vehicle within our soci-

ety for the concerns of all Asian Pacific American workers.

APALA is the first national Asian Pacific American labor

Organization in American history.

The Chinese American Citizens Alliance (“CACA”) is a

national civil rights organization established since 1895 ded-

icated to the promotion and protection of equal rights for all

Chinese Americans. It is membership supported and conducts

legislative advocacy, youth development, and community

awareness and participation activities on national, state and

local levels. .

The Organization of Chinese Americans, Inc. (“OCA”) is

a non-profit, non-partisan advocacy organization that was

founded in 1973. As one of the nation’s oldest Asian

American civil rights organization, OCA secks to secure

social justice, equal opportunity, and equal treatment of

Chinese Americans and Asian Americans; and to climinate

prejudices and ignorance about Chinese Americans and Asian

Americans.

“s

*)

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