Vogel v. City of Cincinnati Brief Amici Curiae Urging Modification of Opinion

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 91-3474 

RICHARD VOGEL,
Plaintiff-Appellant,

v.
CITY OF CINCINNATI, et al.

Defendants-Appellees,

and
THE SENTINEL POLICE ASSOCIATION,

Intervenor Appellee.

Appeal from the United States District Court 
for the Southern District of Ohio 

Western Division

BRIEF AMICI CURIAE
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
AND THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

URGING MODIFICATION OF OPINION

BARBARA ARNWINE 
RICHARD T. SEYMOUR 
MICHAEL SELMI 
SHARON VINICK

Lawyers' Committee for Civil 
Rights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
CORNELIA T. L. PILLARD 
MARINA C. HSIEH 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson St., 16th Floor 

New York, NY 10013 
(212) 219-1900

Counsel for Amici



No. 91-3474 

RICHARD VOGEL,
Plaintiff-Appellant, 

v.
CITY OF CINCINNATI, et al.

Defendants-Appellees,

and
THE SENTINEL POLICE ASSOCIATION,

Intervenor Appellee.

Appeal from the United States District Court 
for the Southern District of Ohio 

Western Division

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE 
BRIEF AMICI CURIAE

OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
AND THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

URGING MODIFICATION OF OPINION

The NAACP Legal Defense and Educational Fund, Inc., and the 
Lawyers' Committee for Civil Rights Under Law hereby move this 
court for an order permitting them to file a brief amicus curiae, 
and in support thereof state as follows:

Amici seek leave to file a brief concerning part II of the 
court's opinion of March 13, 1992, which concerns whether the 1991 
Civil Rights Act, or a section thereof, applies to claims based on 
pre-Act conduct. Had this issue arisen when the original briefs in 
this case were submitted, an amicus brief on the issue might have



been filed at that time. The parties' briefs, however, were due 
long before passage of the Act, and thus no party sought to invoke 
that law. We are advised by counsel for the parties that when this 
case was argued on November 5, 1991, one of the parties did suggest 
that the court direct further briefing if and when the Act was 
signed into law. The court, however, did not direct or request the 
filing of such briefs after the statute was enacted on November 21, 
1991. Thus part II of the court's opinion addresses an issue of 
law which was not encompassed within the questions originally 
presented by this appeal and which possibly-affected litigants 
could not have anticipated prior to March 13, 1992, would be 
decided in this case.

The lack of an opportunity to file an amicus brief on this 
unanticipated aspect of the court's opinion would not be an 
obstacle to informed judicial action, or a source of potential 
unfairness, if the issue had in fact been briefed by the parties. 
But in this instance the issue was not briefed at all. The extent 
to which the Civil Rights Act applies to pre-Act claims is an 
exceedingly complex issue which ought not be addressed without the 
thorough airing of the numerous legal questions involved. Part II 
of the court's opinion refers to two decisions regarding whether 
the Civil Rights Act applies pre-Act claims; there were, as of mid- 
March 1992, more than fifty federal court decisions on this 
question. Part II of the court's opinion refers to statements made 
by two members of Congress regarding the applicability of the Act 
to pre-Act claims; in fact almost forty members of Congress

2



discussed this issue. A number of lower court decisions have 
recognized that the applicability of the Act to pre-Act claims may 
depend on which section of the Act is invoked, and perhaps on the 
particular circumstances of the specific case at issue. Part II of 
the court's opinion, however, does not state specifically which 
section of the Act was invoked by which party, or how that section, 
if applicable, would affect the parties. All of these are matters 
which the court would have been better able to evaluate with the 
benefit of briefs on both sides of the issue.

Had the matter in fact been briefed, the court would also have 
had the advantage of arguments discussing whether there was any 
need for the court to decide at all whether the Act applied to pre- 
Act claims. It is our understanding that applicability of the Act 
came into question when, at oral argument, counsel for the 
intervenors suggested that plaintiff-appellant Vogel might be 
barred from maintaining this action by section 108 of the Act, 
which overturns in part the decision in Martin v. Wilks, 490 U.S. 755

(1989). We suggest in our proposed amicus brief that the plain 
language of section 108, as finally enacted, clearly would not bar 
Vogel from bringing this action, even if section 108 does apply to 
pre-Act claims.

The circumstances of this case are such that none of the 
original parties has any interest in seeking rehearing with regard 
to part II. Plaintiff-Appellant Vogel was the losing party on 
appeal, and thus might seek rehearing, but part II of the decision, 
holding section 108 inapplicable to pre—Act claims, is a decision

3



t
favorable to Vogel. The discussion in Part II regarding section 
108 is adverse to the interest in this case of the defendants and 
intervenors, but since they prevailed on the issue of liability, 
they have no reason to object to part II, or to seek rehearing at 
all.

This motion and the proposed brief are being filed within the 
fourteen day period for filing a petition for rehearing.

MARINA C. HSIEH 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

BARBARA ARNWINE 
RICHARD T. SEYMOUR 
MICHAEL SELMI 
SHARON VINICK

Lawyers' Committee for Civil 
Rights Under Law 

1400 Eye Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 371-1212

March 26, 1992
Counsel fo r Am ici

4



TABLE OF CONTENTS

INTEREST OF AMICI ...........................................  1
ARGUMENT ......................................................  2

I. There Is No Reason To Decide Whether Section 108 
Applies To Pre-Act Claims, Because Section 108,
Even If Applicable, Would Not Bar Plaintiff Vogel's 
C l a i m ................................................  2

II. The Court's Opinion Should Be Modified To Specify
Which Section of the Civil Rights Act Is At Issue . 5

III. Part II of the Court's Opinion Misapprehends
Relevant Legal Principles ............................  6
A. The EEOC Policy Guidance....................... 6
B. The Statutory Language ......................... 9
C. The Legislative H i s t o r y ....................  10
D. The Caselaw In This Circuit Regarding

Application of New Statutes to Pre-Existing 
Claims .......................................... H

C O N C L U S I O N ........................................................
Appendix A: Selected Docket Entries, United States v.

City o f Cincinnati

Appendix B: EEOC Policy Guidance

l



TABLE OF AUTHORITIES
Cases Page
Boddie v. American Broadcasting Co. ,

889 F . 2d 267 (6th Cir. 1 9 8 9 ) ........................  12
Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988) .................................  8 _ *
Bradley v. Richmond School Board,

416 U.S. 396 (1974) ................................. 5,8
Bush v. State Industries, 599 F.2d 780

(6th Cir. 1979)   12
Chevron U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984).................  7,8
Dale Baker Oldsmobile v. Fiat Motors of

North America, 794 F.2d 213 (6th Cir. 1986) . . . .  12
In Re Salem Mortg. Co., 783 F.2d 626

(6th Cir. 1986)   10
Martin v. Wilks, 490 U.S. 755 (1989) .................... 1, 13
Mason Gen. Hospital v. Secretary of Dept, 

of Health and H.S., 809 F.2d 1220
(6th Cir. 1987)   13

Republic Steel Corp. v. Costle, 581 F.2d 1228
(6th Cir. 1978)   13

Russello v. United States, 404 U.S. 16 (1983)...........  10
Scarboro v. First American National Bank of

Nashville, 794 F.2d 213 (6th Cir. 1986) ...........  12
United States v. City of Cincinnati,

771 F . 2d 161 (6th Cir. 1 9 8 5 ) ........................  4
United States v. Murphy, 937 F.2d 1032

(6th Cir. 1991)   11
Other Authorities
Civil Rights Act of 1 9 9 1 ................................. Passim
EEOC Policy G u i d a n c e .....................................  6-8

i i



136 Cong.
137 Cong. 
H .R . Rep.

Rec. (1990) ........................
Rec. (1991) ........................
101-644 (101st Cong., 2d Sess. 1990)

10
11
10

i l l



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 91-3474

RICHARD VOGEL,
Plaintiff-Appellant,

v.
CITY OF CINCINNATI, et al

Defendants-Appellees,

and
THE SENTINEL POLICE ASSOCIATION,

Intervenor-Appellee.

Appeal from the United States District Court 
for the Southern District of Ohio 

Western Division

BRIEF AMICI CURIAE
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
AND THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

URGING MODIFICATION OF OPINION

INTEREST OF AMICI
The NAACP Legal Defense and Educational Fund, Inc. is a non­

profit corporation established to assist African Americans in 
securing their constitutional and civil rights. The Lawyers' 
Committee for Civil Rights Under Law is a nationwide civil rights 
organization, formed in 1963 by leaders of the American Bar at the 
request of President Kennedy, to provide legal representation to

1



victims of civil rights violations. Both amici represent clients 
in the Sixth Circuit and elsewhere whose rights might be affected 
by part II of this court's decision of March 13, 1992.

ARGUMENT
I. There Is No Reason To Decide Whether Section 108 Applies To 

Pre-Act Claims, Because Section 108, Even If Applicable, Would 
Not Bar Plaintiff Vogel's Claim
Part II of the court's opinion does not state specifically 

which provision of the Civil Rights Act was in question. It is our 
understanding, however, that the provision at issue is section 108, 
which overrules at least in part Martin v. Wilks, 490 U.S. 755 (1989);

we are advised that counsel for the intervenor suggested at the 
November 5, 1991, oral argument that if section 108 were enacted, 
it would bar plaintiff Vogel from maintaining this action.

A review of the language of section 108, as finally adopted, 
makes absolutely clear that section 108, even if applicable to pre- 
Act claims, would not prevent Vogel from pursuing the instant 
litigation. The question addressed by section 108 is when 
affirmative action pursuant to a federal court consent decree or 
order may be subject to collateral attack. Martin v. Wilks held that 

such decrees and orders could always.be challenged collaterally by 
any person who was not a party to the original litigation in which 
the decree or order was entered. Section 108 does not forbid all 
collateral attacks, but does preclude certain specified individuals 
from bringing such challenges.

The relevant language of section 108 reads as follows:
(A) Notwithstanding any other provision of law, and 

except as provided in paragraph (2), an employment practice 
that implements and is within the scope of a litigated or

2



consent judgment or order that resolves a claim of employment 
discrimination under the Constitution or Federal civil rights 
laws may not be challenged under the circumstances described 
in subparagraph (B).

(B) A practice described in subparagraph (A) may not be 
challenged in a claim under the Constitution or Federal civil 
rights laws -

(i) by a person who, prior to the entry of the.’ 
judgment or order described in subparagraph (A), had -

(I) actual notice of the proposed judgment or 
order sufficient to apprise such person that such 
judgment or order might adversely affect the 
interests and legal rights of such person and that 
an opportunity was available to present objections 
to such judgment or order by a future date certain; and

(II) a reasonable opportunity to present 
objections to such judgment or order; or

(ii) by a person whose interests were adeguately 
represented by another person who had previously 
challenged the judgment or order on the same legal 
grounds and with a similar factual situation, unless 
there has been an intervening change in law or fact.

105 Stat. 1076.
Section 108 bars two categories of individuals from 

collaterally attacking a federal judgment or order. The first 
group precluded from bringing such actions are those who had 
"actual notice of the proposed judgment or order" and an 
opportunity to present objections. In this case, however, there is 
no claim that Vogel had any notice of the 1981 consent decree at 
issue. On the contrary, the City of Cincinnati insisted that Vogel 
"was unidentifiable as a potentially interested party until he took 
examination No. 89-01 on February 2, 1989, "1 some eight years after

Brief of Defendants-Appellees, No. 91-3474, p. 10.
3



the decree was approved. There was manifestly no way that the 
parties to the consent decree could have identified or notified in 
1981 "every potential person who might seek employment in the 
Cincinnati Police Division during the life of the Consent Decree."2 
We are advised by counsel for plaintiff that in 1981, when the 
decree was approved, Mr. Vogel was still a teenager.

Section 108 also bars actions by individuals who were 
adequately represented by other persons who challenged the decree 
in question. The decree at issue in this case was entered into 
August 13, 1981. The procedural history of that decree set forth 
in this court's 1985 opinion makes no mention of any person having 
challenged the decree. United States v. City o f Cincinnati, 771 F.2d 161, 163

(6th Cir. 1985) We attach to this brief as Appendix A a copy of 
the relevant docket entries in United States v. City o f Cincinnati, which

reveal the decree was approved on the same day it was submitted to 
the court, without any recorded objection or appearance by any 
party.

Under these circumstances, section 108 would not bar Vogel 
from maintaining this action. For that reason, this appeal 
presents no occasion to decide whether section 108 applies to pre- 
Act claims.

2 Id.

4



II. The Court's Opinion Should Be Modified To Specify Which
Section of the Civil Rights Act Is At Issue
If the court resolves to address in its opinion the 

applicability to this pre-Act claim of some provision of the 1991 
Civil Rights Act, the court should specify which section of the Act 
is at issue. .♦

Title I of the 1991 Civil Rights Act, entitled "Federal Civil 
Rights Remedies," contains eighteen separate sections, almost all 
of which concern the determination of employment discrimination 
litigation. Part II of the court's March 13, 1992, opinion, as
currently written, does not state expressly which provision of the 
Act is in question, or by whom it was invoked. Although that 
information can be gleaned by interviewing counsel for the parties 
regarding what occurred at the November 5, 1991, oral argument,
that is not a practicable step for ordinary litigants.

The terms of the court's March 13, 1992, opinion make clear
why litigants and lower courts need to know what section of the Act 
part II described as inapplicable to pre-Act claims. Part II 
states that Bradley v. Richmond School Board, 416 U.S. 396 (1974), does

not apply where "'substantive rights and liabilities' ... would be 
affected", and states that "application of the 1991 Act would 
affect 'substantive rights and liabilities' of the parties to this 
action." (Slip opinion, pp. 6-7) The meaning of this passage 
depends on which section of the Act also has been invoked. A 
holding that any particular section affects "substantive rights and 
liabilities" would not necessarily mean that some other section of

5



the Act has that effect. The application of the "substantive 
rights and liabilities" standard will have to be resolved section 
by section; to do so the lower courts, and other panels of this 
court, will need to know what section was at issue in this case to 
affect such rights and liabilities.
III. Part II of the Court's Opinion Misapprehends Relevant Legal 

Principles
We believe the appropriate course for the court is to delete 

part II as unnecessary to the disposition of the case. We address 
the merits of the issues in part II only in the alternative.

A. The EEOC Policy Guidance
Part II of the court's opinion turns largely on the EEOC

Policy Guidance of December 27, 1991. The pivotal sentence in this
portion of the opinion reads as follows:

In light of the ambiguity of the statute on its face and the 
lack of congressional guidance, the EEOC's decision to apply 
the 1991 Act prospectively appears reasonable.

(Slip opinion, p. 6) (Emphasis added). This sentence appears to
be based on the assumption that the Policy Guidance dealt with the
entire Civil Rights Act, and would thus encompass section 108.

In fact, however, the Policy Guidance deliberately does not
encompass section 108. We annex as Appendix B a copy of the actual
Policy Guidance. As the terms of that document make clear, EEOC
expressly and deliberately dealt only with the application to pre-
Act claims of section 102, which for the first time authorizes
compensatory and punitive damages in Title VII cases. That

6



intentionally limited scope is apparent from the very outset of the 
Policy Guidance.

1. SUBJECT. Policy Guidance on Application of Damages 
Provisions of the Civil Rights Act of 1991 to Pending 
Charges and Pre-Act conduct.

2. PURPOSE. This policy document is intended to provide 
guidance on whether the compensatory and punitive damages provisions ' 
of the Civil Rights Act of 1991 apply to pending charges 
and to conduct occurring prior to the effective date of 
the Act.

*  *  *

7. SUBJECT MATTER. The issue addressed here is whether the 
compensatory and punitive damages provisions of the Civil Rights Act 
of 1991 apply to charges challenging conduct that 
occurred prior to the effective date of the Act.3

Whatever the Policy Guidance may mean with regard to section 102,
the Policy Guidance reflects a very deliberate and consistent
decision of the EEOC not to express any view regarding whether other

provisions of the Act apply to pre-Act claims. Where EEOC has made 
such decision to take no position regarding the applicability of 
section 108 to pre-Act claims, it would stand Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984), on its head to

apply the Policy Guidance to a section which the EEOC itself chose 
to exclude from coverage by the Policy Guidance.

Even as to section 102 itself, the Policy Guidance is of 
little significance to the courts. Part II of the court's opinion 
correctly describes Chevron as holding "the construction given a statute

by the agency that administers it is entitled to deference." (Slip 

Policy Guidance, p. 1 (emphasis added).
7



opinion, p. 6) (Emphasis added). The opinion also correctly
states that EEOC "issued a policy statement that it 'will not seek 

damages under the Civil Rights Act of 1991 for events occurring 
before November 21, 1991.'" Id. (Emphasis added). The opinion

does not assert that EEOC construed section 102 to be inapplicable to

pre-Act claims. Again, a careful reading of the Policy Guidance 
reveals that the EEOC deliberately issued only a policy statement, 
not a "construction" of section 102. The Policy Guidance actually 
concludes that the statutory language supports application to pre- 
Act claims (Policy Guidance, pp. 3-4), and that the legislative 
history is ambiguous (Id. at 4, 6-7). The EEOC policy is based

solely on Bradley v. Richmond School Board, 416 U.S. 696 (1974) and Bowen 

v. Georgetown University Hospital, 488 U.S. 204 (1988). After describing

these cases, the Policy Guidance sets forth the EEOC's reasoning
and conclusion in but a single sentence:

Bowen represents the Supreme Court's more recent holding on 
this issue, and the Commission will follow the dictates of 
that case with regard to the retroactivity of the damages 
provision.

(Policy Guidance, p. 7.)
There are several reasons why this sentence does not warrant 

deference under Chevron. First, it is not an interpretation, but a

decision to "follow" Bowen rather than Bradley simply because it is

"more recent." Second, the sentence deals not with a legal issue 
within the agency's expertise, but a general question of law 
affecting countless other statutes and agencies. Third, judicial

8



deference to EEOC's views as to the relationship between Bradley and 

Bowen is uniquely inappropriate because a majority of the

Commissioners are not even attorneys.
B. The Statutory Language
Part II of the opinion refers only to one provision of the 

Act, section 402(a), which states that ”[e]xcept as otherwise 
specifically provided, this Act and the Amendments made by this Act 
shall take effect upon enactment.” 105 Stat. 1099. The opinion 
concludes that section 402(a) by itself is ambiguous. (Slip 
opinion, p. 6.)

The opinion does not address, however, two other provisions of 
the Act, which deal expressly with application to pre-Act claims. In

two specific instances Congress expressly forbade application of 
certain portions of the Act to pre-Act conduct. In section 109, 
which extended the protections of Title VII to American employees 
working for American employers outside the United States, Congress 
provided:

(c) The amendments made by this section shall not apply with 
respect to conduct occurring before the date of the enactment of this Act.

105 Stat. 1078. And with regard to sections 104 and 105, 
concerning disparate impact cases, the Act states in section 
402(b):

Notwithstanding any other provision of this Act, nothing 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.

105 Stat. 1099.

9



Read together, sections 402(a), 109(c) and 402(b) reflect a 
deliberate, carefully constructed congressional scheme, providing 
that the Act would not apply to certain specified pre-Act claims, 
and would apply to all others. Where Congress has expressly made 
only certain portions of an act inapplicable to pre-Act claims, the 
decisions of this circuit compel the conclusion that the balance of 
the law does apply to such claims. In re Salem Mortg. Co., 783 F.2d 626,

631 (6th Cir. 1986). "Where Congress includes particular language 
in one section of a statute but omits it in another section of the 
same Act, it is generally assumed that Congress acts intentionally 
and purposely in the disparate inclusion or exclusion." Russello v.

United States, 404 U.S. 16, 23 (1983).

C. The Legislative History
On three different occasions Congress voted down proposals to 

include in the 1991 Civil Rights Act language expressly excluding 
application to pre-Act claims. In the spring of 1990 a specific 
amendment to that effect was rejected in the House Judiciary 
Committee.4 In August 1990, the House rejected by a vote of 238 
to 188 the Michel-LaFalce substitute, which would have provided 
that "the Amendments made by this Act shall not apply with respect 
to claims arising before the enactment of this Act."5 In June 1991 
the House rejected by a vote of 266 to 162 a similarly worded

H.R. Rep. 101-644, pt. 2, p. 71 (101st Cong., 2d Sess. 
1990); 136 Cong. Rec. H 6786 (Rep. Moorhead) (daily ed. Aug. 2,1990).

136 Cong. Rec. H 6747, 6768 (daily ed. Aug. 3, 1990).
10



In the finalsubstitute bill offered by Representative Michel.6 
negotiations of October 1991, the Senate negotiators specifically 
rejected an administration proposal "stating that the bill applied 
to no pending cases."7

D. The Caselaw In This Circuit Regarding Application of Mew
Statutes to Pre-Existing Claims

This court's March 13, 1992, opinion noted that, absent
statutory language or established congressional intent, new 
legislation is presumed inapplicable to cases where it would affect 
"substantive rights and Liabilities." See United States v. Murphy, 937

F.2d 1032, 1037, 1038 (6th Cir. 1991). In a case in which a party 
seeks to invoke section 108, we believe that the application of 
Sixth Circuit caselaw is more complex than suggested by the court's 
opinion, and often could not be resolved without an evidentiary 
hearing.

The presumption against application of a law affecting liabilities 

is illustrated by the circumstances of Murphy itself. The

application of the law at issue in that case would have imposed 
liability on the defendant for conduct which was lawful when it 
originally occurred. Specifically an amendment to the False Claims 
Act for the first time imposed liability for mere "constructive 
knowledge of falsity," 937 F.2d at 1038, as opposed to actual 
knowledge. The presumption regarding a law affecting substantive rights

137 Cong. Rec. H 3898, H 3908 (daily ed. June 4, 1991).
137 Cong. Rec. S 15964 (daily ed. Nov. 5, 1991) (Sen.Kennedy).

11



is illustrated by Boddie v. American Broadcasting C o ., 881 F.2d 267 (6th

Cir. 1989), where the new statute at issue had abolished the cause 
of action which was the subject of Boddie's pre-Act claim.

The complementary rule in this circuit, elsewhere, is that a 
statute is presumed applicable to pre-Act claims where the law does 
not alter the standard of substantive legality, but merely changes 
the remedies and procedures to be utilized in enforcing pre­
existing obligations.

[S]tatutory amendments merely affecting remedies . . . and which 
are procedural in nature are generally applicable to cases 
pending at the time of enactment, unless manifest injustice 
will result... .

Bush v. State Industries, 599 F.2d 780, 786 n.9 (6th Cir. 1979). The

statute in Bush gave employees a right to sue for damages if they

had been retaliated against for filing a complaint under the Fair
Labor Standards Act. The new law was applied to pre-Act
retaliation because retaliation itself had been prohibited

for years .... The amendment . . . did not create new 
substantive rights, but simply affected the remedies available 
for vindication of their pre-existing rights.

599 F . 2d at 786. See also Dale Baker Oldsmobile v. Fiat Motors o f North 

America, 794 F.2d 213, 216 (6th Cir. 1986) (distinguishing "a

statute conferring a substantive right" from "acts relating to the 
remedy, to rules of practice or courses of procedure, or to the 
means employed to enforce a right"); Scarboro v. First American National Bank 

o f Nashville, 619 F.2d 621, 622 (6th Cir. 1980) (application of new

12



statute authorizing jury trials poses no "threat of 'injustice' to 
either party").

The decisions in this circuit, consistent with other circuits, 
"thus distinguish between laws affecting substantive standards 
regulating extrajudicial conduct, —  which are presumed 
inapplicable to pre-Act claims —  and laws affecting the remedies 
and procedures for enforcing established rights —  which are 
presumed applicable to pre-Act claims. The controlling issue with 
regard to section 108, we believe, is whether the party against 
whom section 108 is invoked relied to his or her detriment on pre- 
Act law. See Mason Gen. Hospital v. Secretary o f Dept, o f Health and H.S. , 809

F.2d 1220, 1227 (6th Cir. 1987) (applicability of new law turns in 
part on "the extent to which the party against whom the new rule is 
applied relied on the former rule") ; Republic Steel Corp. v. Costle, 581

F •2d 1228, 1233-34 (6th Cir. 1978) (whether party's earlier conduct 
was "induced" by prior law) . In most circuits prior to Martin v.

Wilks, a consent decree could only be attacked when originally

entered; if a person subject to that requirement failed to meet it, 
he or she cannot complain that section 108 withdraws the additional 
opportunity accorded by Wilks to challenge the decree. On the other 

hand, in the case of a decree entered after Wilks itself, an 

individual might have relied on Wilks in declining to challenge the

decree when it was first proposed. Whether such reliance actually 
occurred in a given case is a factual issue to be resolved after an 
appropriate evidentiary inquiry.

13



For the reasons set forth above, however, we believe that the 
appropriate modification of the court's March 13, 1992, opinion
would be to delete part II.

CONCLUSION
For the above reasons, we urge the court to modify its opinion 

of March 13, 1992, by deleting part II of the opinion regarding 
whether the Civil Rights Act, or any particular provision thereof, 
applies to pre-Act claims. In the alternative, we urge the court 
to modify that part II to state that section 108 of the Act is at 
issue, and to hold that section 108 of the Act, because it relates 
to matters of procedure and remedy, will apply to pre-Act claims 
unless the party against whom it is invoked can prove that he or 
she relied to his or her detriment on pre-Act law.

BARBARA ARNWINE 
RICHARD T. SEYMOUR 
MICHAEL SELMI 
SHARON VINICK

submitted

J u l i u s l . c h a m b e r s
CHARLES STEPHEN RALSTON 
CORNELIA T. L. PILLARD 
MARINA C. HSIEH 
ERIC SCHNAPPER

Ju l i u s l
CHARLES

Lawyers' Committee for Civil
Rights Under Law 

1400 Eye Street, N.W. 
Suite 400
Washington, D.C. 20005 
(202) 371-1212

Educational Fund, Inc. 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900

NAACP Legal Defense and

Counsel for Amici

14



CERTIFICATE OF SERVICE
I hereby certify that on this twenty-sixth day of March, 1992,

I served on counsel for the parties a copy of the Motion for Leave
to File Brief Amicus Curiae and two copies of the proposed Brief
Amicus Curiae by causing them to be deposited in the United States
mail, first class postage prepaid, addressed to:

Fay D. Dupuis, Esq.
City Solicitor
Julie F. Bissinger, Esq.
Assistant City Solicitor 
Room 214, City Hall 
801 Plum Street 
Cincinnati, Ohio 45202
William S. Wyler, Esq.
Schwartz, Manes & Ruby 
2900 Carew Tower 
441 Vine Street 
Cincinnati, Ohio 45202
Alphonse Gerhardstein, Esq.
1409 Enquirer Building



APPENDIX A



140]; November 18, 1991

)AY— PROCLAMATION
PUBLIC LAW 102-166 [S. 1745]; November 21, 1991

CIVIL RIGHTS ACT OF 1991

“Notional Philanthropy Day".

ian 800.000 nonprofit philan- 
tates:
tions employ approximately 
■ services of approximately

United States contributed 
support such philanthropic

ire responsible for enhancing 
at the world;
ates owe a great debt to the 
music centers, youth groups, 

nmunitv service institutions, 
which aid and comfort dis- 

ais; and
tes should demonstrate grati- 
c organizations and for the 
iividuals who carry out the 
therefore, be it
Representatives o f the United 
d. That November 19, 1991. is 
.- Day", and the President is 
reclamation calling upon the 
e such day with appropriate

i

For Legislative History o f Act, see Report fo r  P .L  102-166 
in U.S.C.C. & A.N. Legislative History Section.

An Act to amend tho Civil Right* Act of 19*4 to itrangthon and improve federal civil right* 
law*, to provide for damage* in ca*e» of intentional employment dl*c»imination, to clarify 
provisions regarding disparate impact actions* and for othar purposes.

Be it enacted by the Senate and House o f Representatives of the
United States o f America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Civil Rights Act of 1991” .

SEC. 2. FINDINGS.

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. Atonio, 490 U.S. 642 (1989) has weakened the scope and 
effectiveness of Federal civil rights protections; and

(3) legislation is necessary to provide additional protections 
against unlawful discrimination in employment.

SEC. 3. PURPOSES.

The purposes of this Act are—
(1) to provide appropriate remedies for intentional discrimina­

tion and unlawful harassment in the workplace;
(2) to codify the concepts of “business necessity” and “job 

related” enunciated by the Supreme Court in Griggs v. Duke 
Power Co., 401 U.S. 424 (1971), and in the other Supreme Court 
decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 
642(1989);

(3) to confirm statutory authority and provide statutory guide­
lines for the adjudication of disparate impact suits under title 
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

(4) to respond to recent decisions of the Supreme Court by 
expanding the scope of relevant civil rights statutes in order to 
provide adequate protection to victims of discrimination.

TITLE I—FEDERAL CIVIL RIGHTS 
REMEDIES

SEC. 101. PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE 
MAKING AND ENFORCEMENT OF CONTRACTS.

Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended—
(1) by inserting “ (a)” before “All persons within” ; and
(2) by adding at the end the following new subsections:

1070 105 STAT. 1071



P.L. 102-166
Sec. 101

LAWS OF 102nd CONG.—1st SESS. Nov. 21

"(b) For purposes of this section, the term ‘make and enforce 
contracts’ includes the making, performance, modification, and 
termination of contracts, and the enjoyment of all benefits, privi- 
leges, terms, and conditions of the contractual relationship.

“ (c) The rights protected by this section are protected against 
impairment by nongovernmental discrimination and impairment 
under color of State law.’’.
SEC. 102. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION.

The Revised Statutes are amended by inserting after section 1977 
(42 U.S.C. 1981) the following new section:
"SEC. 1977A. DAMACE3 IN CASES OF INTENTIONAL DISCRIMINATION IN 

EMPLOYMENT.

“(a) R ic h t  or R e c o v e r y .—
"(1) C iv il  r ig h t s .— In an action brought by a complaining 

partv under section 706 or 717 of the Civil Rights Act of 1964 (42 
U.S.C. 2000e-5) against a respondent who engaged in unlawful 
intentional discrimination (not an employment practice that is 
unlawful because of its disparate impact) prohibited under sec­
tion 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), 
and provided that the complaining party cannot recover under 
section 1977 of the Revised Statutes (42 U.S.C. 1981), the 
complaining party may recover, compensatory and punitive 
damages as allowed in subsection (b), in addition to any relief 
authorized by section 706(g) of the Civil Rights Act of 1964, from 
the respondent.

"(2) Disability .— In an action brought by a complaining party 
under the powers, remedies, and procedures set forth in section 
706 or 717 of the Civil Rights Act of 1964 (as provided in section 
107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12117(a)), and section 505(aXl) of the Rehabilitation Act of 1973 
(29 U.S.C. 794a(aXl)), respectively) against a respondent who 
engaged in unlawful intentional discrimination (not an employ­
ment practice that is unlawful because of its disparate impact) 
under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791) and the regulations implementing section 501, or who 
violated the requirements of section 501 of the Act or the 
regulations implementing section 501 concerning the provision 
of a reasonable accommodation, or section 102 of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a 
violation of section 102tbX5) of the Act. against an individual, 
the complaining party may recover compensatory and punitive 
damages as allowed in subsection (b), in addition to any relief 
authorized by section 706(g) of the Civil Rights Act of 1964, from 
the respondent.

“ (3) Reasonable accommodation and good faith effort.— 
In cases where a discriminatory practice involves the provision 
of a reasonable accommodation pursuant to section 102(bX5) of 
the Americans with Disabilities Act of 1990 or regulations 
implementing section 501 of the Rehabilitation Act of 1973, 
damages may not be awarded under this section where the 
covered entity demonstrates good faith efforts, in consultation 
with the person with the disability who has informed the cov­
ered entity that accommodation is needed, to identify and make 
a reasonable accommodation that would provide such individual

105 ST AT. 1072



the term 'make and enforce 
formance, modification, &nd 
ovment of all benefits, privi- 
ractual relationship, 
section are protected against 
crimination and impairment

G.—1st SESS. Nov. 21

ONAL DISCRIMINATION, 

oy inserting after section 1977
ion:
"ENTIONAL DISCRIMINATION IN

m  brought by a complaining 
she Civil Rights Act of 1964 (42 
lent who engaged in unlawful 
n employment practice that is 
impact) prohibited under sec- 

42 U S.C. 2000e-2 or 2000e-3), 
ig party cannot recover under 
:atutes (42 U.S.C. 1981), the 
- compensatory and punitive 
n (b), in addition to any relief 
; Civil Rights Act of 1964, from

ought by a complaining party 
irocedures set forth in section 
jf 1964 (as provided in section 
bilities Act of 1990 (42 U.S.C. 
he Rehabilitation Act of 1973 
/) against a respondent who 
iscrimination (not an employ- 
cause of its disparate impact) 
tation Act of 1973 (29 U.S.C. 
nenting section 501, or who 
:tion 501 of the Act or the 
501 concerning the provision 

• section 102 of the Americans 
(J.S.C. 12112), or committed a 
le Act, against an individual, 
sr compensatory and punitive 
i fb), in addition to any relief 
Civil Rights Act of 1964, from

ION AND GOOD FAITH EFFORT, 
practice involves the provision 
pursuant to section 102lbX5) of 
;s Act of 1990 or regulations 
ne Rehabilitation Act of 19 <3, 
under this section where the 

od faith efforts, in consultation 
;lity who has informed the cov- 
is needed, to identify and make 

it would provide such individual

. 1072

with an equally effective opportunity and would not cause an 
undue hardship on the operation of the business.

“ (b) Compensatory and Punitive Damages.—
“(1) Determination of punitive damages.—A  complaining 

party may recover punitive damages under this section against 
a respondent (other than a government, government agency or 
political subdivision) if the complaining party demonstrates 
that the respondent engaged in a discriminatory practice or 
discriminatory practices with malice or with reckless indiffer­
ence to the federally protected rights of an aggrieved individual.

“ (2) Exclusions from compensatory damages.—Compen­
satory damages awarded under this section shall not include 
backpay, interest on backpay, or any other type of relief au­
thorized under section 706'g) of the Civil Rights Act of 1964.

“ (3) L imitations.—The sum of the amount of compensatory 
damages awarded under this section for future pecuniary losses, 
emotional pain, suffering, inconvenience, mental anguish, loss 
of enjoyment of life, and other nonpecuniary losses, and the 
amount of punitive damages awarded under this section, shall 
not exceed, for each complaining party—

"(A) in the case of a respondent who has more than 14 
and fewer than 101 employees in each of 20 or more cal­
endar weeks in the current or preceding calendar year,
$50,000;

“ (B) in the case of a respondent who has more than 100 
and fewer than 201 employees in each of 20 or more cal­
endar weeks in the current or preceding calendar year,
$100,000; and

“ (C) in the case of a respondent who has more than 200 
and fewer than 501 employees in each of 20 or more cal­
endar weeks in the current or preceding calendar year,
$200,000; and

“ (D) in the case of a respondent who has more than 500 
employees in each of 20 or more calendar weeks in the 
current or preceding calendar year, $300,000.

“ (4) Construction.—Nothing in this section shall be con­
strued to limit the scope of, or the relief available under, section 
1977 of the Revised Statutes (42 U.S.C. 1981).

“ (c) Jury T rial.—If a complaining party seeks compensatory or 
punitive damages under this section—

“ (1) any party may demand a trial by jury; and 
“ (2) the court shall not inform the jury of the limitations 

described in subsection (bX3).
“ (d) Definitions.—As used in this section:

“ (1) Complaining party.—The term 'complaining party’ 
means—

“ (A) in the case of a person seeking to bring an action 
under subsection (aXl), the Equal Employment Opportunity 
Commission, the Attorney General, or a person who may 
bring an action or proceeding under title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

“ (B) in the case of a person seeking to bring an action 
under subsection (aX2), the Equal Employment Opportunity 
Commission, the Attorney General, a person who may bring 

; an action or proceeding under section 505(aXl) of the Re­
habilitation Act of 1973 (29 U.S.C. 794a(aXl)), or a person 
who may bring an action or proceeding under title I of the

Nov. 21 CIVIL RIGHTS ACT OF 1991 P.L.

105 STAT. 1073

102-166
Sec. 102



Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et 
seq.).

“ (2) Discriminatory practice.—The term ‘discriminatory 
practice’ means the discrimination described in paragraph (1), 
or the discrimination or the violation described in paragraph (2), 
of subsection (a).

SEC 103. ATTORNEY'S FEES.

The last sentence of section 722 of the Revised Statutes (42 U.S.C. 
1988) is amended by inserting ", 1977A” after "1977".

SEC. lOt. DEFINITIONS.

Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is 
amended by adding at the end the following new subsections:

“ (1) The term ‘complaining party’ means the Commission, the 
Attorney General, or a person who may bring an action or proceed­
ing under this title.

"(m) The term ‘demonstrates’ means meets the burdens of produc­
tion and persuasion.

“ (n) The term ‘respondent’ means an employer, employment 
agency, labor organization, joint labor-management committee 
controlling apprenticeship or other training or retraining program, 
including an on-the-job training program, or Federal entity subject 
to section 717.” .

SEC. 105. BURDEN OF PROOF IN DISPARATE IMPACT CASES.

(a) Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is 
amended by adding at the end the following new subsection:

"(kKlXA) An unlawful employment practice based on disparate 
impact is established under this title only if—

"(i) a complaining party demonstrates that a respondent uses 
a particular employment practice that causes a disparate 
impact on the basis of race, color, religion, sex, or national 
origin and the respondent fails to demonstrate that the chal­
lenged practice is job related for the position in question and 
consistent with business necessity; or

“(ii) the complaining party makes the demonstration de­
scribed in subparagraph (C) with respect to an alternative 
employment practice and the respondent refuses to adopt such 
alternative employment practice.

"(BXi) With respect to demonstrating that a particular employ­
ment practice causes a disparate impact as described in subpara­
graph (AXi), the complaining party shall demonstrate that each 
particular challenged employment practice causes a disparate 
impact, except that if the complaining party can demonstrate to the 
court that the elements of a respondent’s decisionmaking process 
are not capable of separation for analysis, the decisionmaking proc­
ess may be analyzed as one employment practice.

“ (ii) If the respondent demonstrates that a specific employment 
practice does not cause the disparate impact, the respondent shall 
not be required to demonstrate that such practice is required by 
business necessity.

“ (C) The demonstration referred to by subparagraph (AXii) shall 
be in accordance with the law as it existed on June 4, 1989, with 
respect to the concept of ‘alternative employment practice’.

LAWS OF 102nd CONG.—1st SESS. Nov. 21P.L. 102-166
Sec. 102

105 STAT. 1074



P.L. 102-166
Sec. 107

.—1st SESS. Nov. 21

t of 1990 (42 U.S.C. 12101 et

-The term 'discriminatory 
described in paragraph (1), 

n described in paragraph (2),

e Revised Statutes (42 U.S.C. 
after "1977".

of 1964 (42 U.S.C. 2000e) is 
/ing new subsections: 
neans the Commission, the 
y bring an action or proceed-

meets the burdens o f produc-

an employer, employment 
Dor-management committee 
ining or retraining program, 
,m, or Federal entity subject

E IMPACT CASES.

of 1964 (42 U.S.C. 2000e-2) is 
ving new subsection: 
practice based on disparate 
ly if—
rates that a respondent uses 
e that causes a disparate 
r, religion, sex, or national 
demonstrate that the chai­

s e  position in question and

Nov. 21 CIVIL RIGHTS ACT OF 1991

"(2) A demonstration that an employment practice is required by 
business necessity may not be used as a defense against a claim oi
intentional discrimination under this title.

"(3) Notwithstanding any other provision of this title, a rule 
barring the emplovment of an individual who currently and know- 
indv uses or possesses a controlled substance, as defined m sched­
ules I and II of section 102(6) of the Controlled Substances Act (21 
U SC  802(6)), other than the use or possession of a drug taken under 
the supervision of a licensed health care professional, or any other 
use or possession authorized by the Controlled Substances Act or 
anv other provision of Federal law, shall be considered an unlawful 
emplovment practice under this title only if such rule is adopted or 
applied with an intent to discriminate because of race, color, reli­
gion, sex, or national origin.” . _

(b) No statements other than the interpretive memorandum 
appearing at Vol. 137 Congressional Record S 15276 (daily ed. Oct. 
25 ‘ 1991) shall be considered legislative history of, or relied upon in 
anv wav as legislative history in construing or applying, any provi­
sion of’ this Act that relates to Wards Cove—Business necessity/ 
cumulation/alternative business practice.
SEC. 106. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES.

Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as 
amended by section 105) is further amended by adding at the end 
the following new subsection:

"(1) It shall be an unlawful employment practice for a respondent, 
in connection with the selection or referral of applicants or can­
didates for employment or promotion, to adjust the scores of, use 
different cutoff scores for. or otherwise alter the results of. employ­
ment related tests on the basis of race, color, religion, sex, or 
national origin ".
SEC. 107. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSID­

ERATION OF RACE, COLOR. RELIGION. SEX, OR NATIONAL 
ORIGIN IN EMPLOYMENT PRACTICES.or

ikes the demonstration de- 
l respect to an alternative 
Dndent refuses to adopt such

g that a particular employ- 
act as described in subpara- 
hall demonstrate that each 
ractice causes a disparate 
party can demonstrate to the 
:nt’s decisionmaking process 
sis, the decisionmaking proc- 
: practice.
that a specific employment 

impact, the respondent shall 
such practice is required by

by subparagraph (AXii) shall 
xisted on June 4, 1989, with 
lployment practice’.

(a) In General.—Section 703 of the Civil Rights Act of 1964 (42 
U.S.C. 2000e-2) tas amended by sections 105 and 106) is further 
amended by adding at the end the following new subsection.

“ (m) Except as otherwise provided in this title, an unlawdul 
employment practice is established when the complaining party 
demonstrates that race, color, religion, sex, or national origin was a 
motivating factor for any employment practice, even though other 
factors also motivated the practice.” . _ .„

(b) Enforcement Provisions.—Section 706(g) of such Art (4<i 
U.S.C. 2000e-5(gi) is amended—

(1) by designating the first through third sentences as para­
graph (1); ,

(2) by designating the fourth sentence as paragraph uXA> ana 
indenting accordingly; and

(3) by adding at the end the following new subparagraph: 
“ (B) On a claim in which an individual proves a violation under

section 703(m) and a respondent demonstrates that the respondent 
would have taken the same action in the absence of the impermis­
sible motivating factor, the court—

“ (i) may grant declaratory relief, injunctive relief (except as 
provided in clause (ii)), and attorney s fees and costs dem-

074
105 ST AT. 1075



P.L. 102-166
Sec. 107 LAWS OF 102nd CONG.—1st SESS. Nov. 21

onstrated to be directly attributable only to the pursuit of a 
claim under section 703<m); and

“ (ii) shall not award damages or issue an order requiring any 
admission, reinstatement, hiring, promotion, or payment, de­
scribed in subparagraph (A).” .

SEC. 108. FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHAL­
LENGES TO EMPLOYMENT PRACTICES IMPLEMENTING LITI- 
GATED OR CONSENT JUDGMENTS OR ORDERS.

Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as 
amended by sections 105, 106, and 107 of this title) is further 
ai?,?nwfd oyxaddlng at end the following new subsection:

(nXl K A) Notwithstanding any other provision of law, and except 
as provided in paragraph (2), an employment practice that imple- 
ments and is within the scope of a litigated or consent judgment or 
order that resolves a claim of employment discrimination under the 
Constitution or Federal civil rights laws may not be challenged 
under the circumstances described in subparagraph (B)

<B) A practice described in subparagraph (A) may not be chal- 
laws— m 3 C alm Under the 0005:1111:1011 or Federal civil rights

“ (l) by a person who, prior to the entry of the judgment or 
order described in subparagraph (A), had—

"(I) actual notice of the proposed judgment or order 
sumcient to apprise such person that such judgment or 
order might adversely affect the interests and legal rights 
ot such person and that an opportunity was available to 
present objections to such judgment or order by a future 
date certain; and

‘‘(II) a reasonable opportunity to present objections to 
,, such judgment or order; or
(ii) by a person whose interests were adequately represented 

by another person who had previously challenged the judgment 
or order on the same legal grounds and with a similar factual 
situation, unless there has been an intervening change in law or

(2) Nothing in this subsection shall be construed to—
-  J A) f  tlle s:?ndards for intervention under rule 24 of the
whdr,erh»vRU 63 ° f Procedure or aPPly 10 :be rights of parties 
who have successfully intervened pursuant to such rule in the 
proceeding in which the parties intervened;

(B) apply to the rights of parties to the action in which a 
litigated or consent judgment or order was entered, or of mem­
bers of a class represented or sought to be represented in such 
action or of members of a group on whose behalf relief was 
sought in such action by the Federal Government;

(C) prevent challenges to a litigated or consent judgment or 
order on the ground that such judgment or order was obtained

US10n ,°r /raud’ or 13 transparently invalid or was 
a court lacking subject matter jurisdiction; or

(D) authorize or permit the denial to any person of the due
law required by the Constitution.

I ‘t l Any 3CtI?n not Precluded under this subsection that chal- 
o a r f^ n h  C° n,Sent ^ d ^ e n t  or order described in

^  bur° Ug,ht m the court’ and lf Possible before the judge, that entered such judgment or order. Nothing in this subsec-

105 STAT. 1076



)NG.—1st SESS. Nov. 21 CIVIL RIGHTS ACT OF 1991

jtable only to the pursuit of a

or issue an order requiring any 
lg, promotion, or payment, de-

ORDERLY RESOLUTION OF CHAL- 
PRACTICES IMPLEMENTING LITI- 
ENTS OR ORDERS.

t of 1964 (42 U.S.C. 2000e-2) (as 
d 107 of this title) is further 
ilowing new subsection: 
le r provision of law, and except 
nployment practice that imple- 
itigated or consent judgment or 
yment discrimination under the 
s laws may not be challenged
I subparagraph (B). 
paragraph (A) may not be chal- 
•.itution or Federal civil rights

d the entry of the judgment or 
(A), had—

; proposed judgment or order 
person that such judgment or 
:t the interests and legal rights 
a opportunity was available to 
judgment or order by a future

:unity to present objections to

;ts were adequately represented 
iously challenged the judgment 
inds and with a similar factual 
an intervening change in law or

II be construed to— 
tervention under rule 24 of the 
or apply to the rights of parties

id pursuant to such rule in the 
ntervened;
irties to the action in which a 
- order was entered, or of mem- 
iught to be represented in such 
up on whose behalf relief was 
era! Government;
.tigated or consent judgment or 
udgment or order was obtained 
s transparently invalid or was 
:t matter jurisdiction; or 
denial to any person of the due 
institution.
ider this subsection that chal- 
igment or order described in 
court, and if possible before the 
r order. Nothing in this subsec-

tion shall preclude a transfer of such action pursuant to section 1404 
of title 28, United States Code.” .
SEC. 109. PROTECTION OF EXTRATERRITORIAL EMPLOYMENT.

(a) Definition of Employee.—Section 701(f) of the Civil Rights 
Act of 1964 (42 U.S.C. 2000e(f)) and section 101(4) of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12111(4)) are each amended 
bv adding at the end the following: "With respect to employment in 
a*foreign country, such term includes an individual who is a citizen 
of the United States.” .

(b) Exemption.—
(1) Civ il  rights act of 1964.—Section 702 of the Civil Rights 

Act of 1964 (42 U.S.C. 2000e-l) is amended—
(A) by inserting "(a)” after “ Sec. 702.” ; and
(B) by adding at the end the following:

“(b) It shall not be unlawful under section 703 or 704 for an 
employer (or a corporation controlled by an employer), labor 
organization, employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining 
(including on-the-job training programs) to take any action other­
wise prohibited by such section, with respect to an employee in a 
workplace in a foreign country if compliance with such section 
would cause such employer (or such corporation), such organization, 
such agency, or such committee to violate the law of the foreign 
country in which such workplace is located.

“(cXl) If an employer controls a corporation whose place of incor­
poration is a foreign country, any practice prohibited by section 703 
or 704 engaged in by such corporation shall be presumed to be 
engaged in by such employer.

“(2) Sections 703 and 704 shall not apply with respect to the 
foreign operations of an employer that is a foreign person not 
controlled by an American employer.

"(3) For purposes of this subsection, the determination of whether 
an employer controls a corporation shall be based on—

“ (A) the interrelation of operations;
“ (B) the common management;
“ (C) the centralized control of labor relations; and 
“ (D) the common ownership or financial control, 

of the employer and the corporation.” .
(2) A mericans with disabilities act of i990.—Section 102 of 

the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is 
amended—

(A) by redesignating subsection (c) as subsection (d); and
(B) by inserting after subsection (b) the following new 

subsection:
“ (c) Covered Entities in Foreign Countries.—

“(1) In  general.—It shall not be unlawful under this section 
for a covered entity to take any action that constitutes discrimi­
nation under this section with respect to an employee in a 
workplace in a foreign country if compliance with this section 
would cause such covered entity to violate the law o f the foreign 
country in which such workplace is located.

“ (2) Control of corporation.—
“ (A) Presumption.—If an employer controls a corpora­

tion whose place of incorporation is a foreign country, any 
practice that constitutes discrimination under this section

Nov. 21

1076 105 STAT. 1077

v



PL. 102-166
Sec. 109

and is engaged in by such corporation shall be presumed to 
be engaged in by such employer.

(B) Exception. This section shall not apply with re­
spect to the foreign operations of an employer that is a 
foreign person not controlled by an American employer.

(C) Determination.—For purposes of this paragraph, 
the determination of whether an employer controls a cor­
poration shall be based on—

"(i) the interrelation of operations;
“(ii) the common management;
“ (iii) the centralized control of labor relations; and 
"(iv) the common ownership or financial control, 

of the employer and the corporation.’’.
(c) A pplication of A mendments.—The amendments made by this 

section shall not apply with respect to conduct occurring before the 
date of the enactment of this Act.

SEC. no. TECHNICAL ASSISTANCE TRAINING INSTITUTE.

LEoCHtT c AonSftaTAnCE-~ SeCti0n 705 0f tHe CiYil R‘g -^  Act Of 1964 (42 U.S.C. 2000e-4) is amended by adding at the end the 
following new subsection:

“ (jXl) The Commission shall establish a Technical Assistance 
training Institute, through which the Commission shall provide 
technical assptance and training regarding the laws and regulations 
enforced by the Commission.

(2) An employer or other entity covered under this title shall not 
De excused from compliance with the requirements of this title 
oecause of any failure to receive technical assistance under this 
subsection.

(3) There are authorized to be appropriated to carry out this 
SÛ f>e?'tl0n Such sums “  maX ** necessary for fiscal year 1992.” .
* i. „  ECnvli: Date.—The amendment made by this section shall 
take effect on the date of the enactment of this Act.

SEC. 111. EDUCATION AND OUTREACH.

Section 705(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4fh)) 
is amended—

(1) by inserting “(1)” after "(h)” ; and
^  a6ding at the end the following new paragraph:

U) In exercising its powers under this title, the Commission shall 
carry out educational and outreach activities (including dissemina- 
tion of information in languages other than English) targeted to—

(A) individuals who historically have been victims of employ­
ment discrimination and have not been equitably served by the 
Commission; and

(B) individuals on whose behalf the Commission has author­
ity to eniorce any other law prohibiting employment discrimi­
nation,

concerning rights and obligations under this title or such law, as the 
case may be. .

SEC. 112. EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORY 
SENIORITY SYSTEMS.

. ^ i o n  706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) 
ib amended—

(1) by inserting (1) before “A  charge under this section” - 
and *

LAWS OF 102nd CONG.—1st SESS. Nov. 21

(
“ (2) F 

occurs, 
an inte 
(whetht 
of the 
when a. 
a perse 
system

SEC. 11"

Nov. 21

"(c) I 
action c 
of the . 
expert : 

(bi Ci 
Act of 1 
ing exp.

SEC. 1U

SEC. 113

Sectic 
(29 U.S. uc:

(S
(4

" I f  a ch: 
or the p 
the Corr 
A civil a 
in sectic 
90 days

SEC. 116.

Nothi 
to affect 
agreeme

105 STAT. 1078



CIVIL RIGHTS ACT OF 1991G.—1st SESS.

poration shall be presumed to 
er.
:ion shall not apply with_ re- 
ms of an employer that is a 
i  by an American employer, 
purposes of this paragraph, 

r an employer controls a cor-

operations;
gement;
ontrol of labor relations; and 
rship or financial control, 
ration.".
Hie amendments made by this 
3 conduct occurring before the

ING INSTITUTE.

705 of the Civil Rights Act of 
d by adding at the end the

blish a Technical Assistance 
he Commission shall provide 
rding the laws and regulations

(2) by adding at the end the following new paragraph:
“ (2) For purposes of this section, an unlawful employment practice 

occurs, with respect to a seniority system that has been adopted for 
an intentionally discriminatory purpose in violation of this title 
(whether or not that discriminatory purpose is apparent on the face 
of the seniority provision), when the seniority system is adopted, 
when an individual becomes subject to the seniority system, or when 
a person aggrieved is injured by the application of the seniority 
svstem or provision of the system.” .

SEC. 113. AUTHORIZING AWARD OF EXPERT FEES.

(a) Revised Statutes.—Section 722 of the Revised Statutes is 
amended—

(1) by designating the first and second sentences as subsec­
tions (a) and (b), respectively, and indenting accordingly; and

(2) by adding at the end the following new subsection:
“ (c) In awarding an attorney's fee under subsection^ (b) in any 

action or proceeding to enforce a provision of section 1977 or 1977A 
of the Revised Statutes, the court, in its discretion, may include 
expert fees as part of the attorney's fee.’’.

lb) Civil Rights Act of 1964.—Section 706(k) of the Civil Rights 
Act of 1964 (42 U.S.C. 2000e-5(k)) is amended by inserting "(includ­
ing expert fees)’’ after “attorney’s fee” .

P.L. 102-166
Sec. 116

,-ered under this title shall not 
he requirements of this title 
chnicaJ assistance under this

ppropriated to carry out this 
ressary for fiscal year 1992.” . 
ent made by this section shall 
it  of this Act.

t of 1964 (42 U.S.C. 2000e-4(h)) 

and
swing new paragraph: 
his title, the Commission shall 
ctivities (including dissemina- 
ir than English) targeted to— 
y have been victims of employ- 
t been equitably served by the

If the Commission has author- 
hibiting employment discrimi-

er this title or such law, as the 

CHALLENGE DISCRIMINATORY

:t of 1964 (42 U.S.C. 2000e-5(e)) 

A charge under this section” ;

SEC. lit. PROVIDING FOR INTEREST AND EXTENDING THE STATUTE OF 
LIMITATIONS IN ACTIONS AGAINST THE FEDERAL GOVERN­
MENT.

Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is 
amended—

(1) in subsection (c), by striking “ thirty days” and inserting
“90 days"; and

(2) in subsection (d), by inserting before the period “ , and the 
same interest to compensate for delay in payment shall be 
available as in cases involving nonpublic parties.” .

SEC. 115. NOTICE OF LIMITATIONS PERIOD UNDER THE AGE DISCRIMINA­
TION IN EMPLOYMENT ACT OF 1967.

Section 7(e) of the Age Discrimination in Employment Act of 1967 
(29 U.S.C. 626(e)) is amended—

(1) by striking paragraph (2);
(2) by striking the paragraph designation in paragraph (1);
(3) by striking “Sections 6 and” and inserting “Section ’; and
(4) by adding at the end the following: . . . :

“ I f a charge filed with the Commission under this Act is dismissed 
or the proceedings of the Commission are otherwise terminated by 
the Commission, the Commission shall notify the person aggrieved. 
A civil action may be brought under this section by a person defined 
in section 11(a) against the respondent named in the charge within 
90 days after the date of the receipt of such notice.” .
SEC. 116. LAWFUL COURT-ORDERED REMEDIES. AFFIRMATIVE ACTION. 

AND CONCILIATION AGREEMENTS NOT AFFECTED.

Nothing in the amendments made by this title shall be construed 
to affect court-ordered remedies, affirmative action, or conciliation 
agreements, that are in accordance with the law.

/
1078 105 ST AT. 1079



P L . 102-166 
Sec. 117 LAWS OF 102nd CONG— 1st SESS. Nov. 21

SEC. 117. COVERAGE OF HOUSE OF REPRESENTATIVES AND THE AGEN 
CIES OF THE LEGISLATIVE BRANCH.

(a) Co v e r a g e  of th e  H ouse  of Representatives  —

(2) E m p l o y m e n t  in  th e  h o u se .—
, J ^ r^?PL1S.ATION-—Fbe rights and protections under Htu 
VI1 of the Civil Rights Act of 1964 (42 U.S.C. 2000eet 
shal . subject to subparagraph (B). apply with respect t o S v  
employee m an employment position in the House of ReZ

ReprnesenSiv“  “ y employing authon^  of the HouseTf 
(B ) A d m in is t r a t io n .—

_ , l J Nt? fNERAI" ~ In thf  administration of this para­
graph, the remedies and procedures made applicable

^ S d S S S y ” 90 Uti° n d6SCribed ^  Cl3USe (iU SHaI1
( i )S )th fF fll^P  N'7 The res° lution referred to in clause 
r * , „ , e Fair Employment Practices Resolution (House 
Resolution 5o8 of the One Hundredth Congress as
RSe?oft?h?H°ber 4; r 988)’ 33 “ corporated into’ the 
y ~ f 3 ° f  th® House of Representatives of the One Hun-
s,nnd ^ fCf0nd CongTess 33 Rule LI- or any other provi- 
resolution COntlnues m efTect the Provisions of such

(C) E xercise  of r u l e m a k in g  po w e r .— The provisions of 
subparagraph (B) are enacted by the House of Representa- 
lves as an exercise of the rulemaking power of the House

t o E S ’" m in t  "an^ te th l

(b) iNSTRUMEJrTALrn^ OF CONCTRESS^-^11̂  ^  ^  ° f  ^
. j ] ’ *1! GvtNtEIVALu—T 16 righta and protections under this title 
™ i  ii™  °J-the ClviJ Rl« hts Act of 1964 (42 U.S.C 2000e et 

SUuJeCt t0 Paragraph (2), apply with respect to the 
conduct of each instrumentality of the Congress.
,x,cd Es t a b l ish m e n t  of rem edies  a n d  procedures by  
iN rrR U M E N T A L m ^.-T h 0 chief official of each instnfmeSaliW
u . Sha11 estabIish remedies and procedures to £  
utilized with respect to the rights and protections providS
p r|uat paragraph (1). Such remedies and procedures shall 
apply exclusively, except for the employees who ar^definS  as 
Senate employees, in section 301(cXl)

tJitv o r T h l7 r ° NGRESSr , ? e,ChiefofficiaI of each instrumen- 
S^^dures for m Z f SS Si?a ’ after establishing remedies and procedures for purposes of paragraph (2), submit to the Comn-ess 
a report describing the remedies and procedure ^

(4) D e f in it io n  of INSTRUMENTAUTIES.-For purposes o f this
A ^ h t h e  following: 

th! f  ^  ■ CaPitol, the Congressional Budget Office 
th» rvfr ^  £ ^ 0U,ntlI?g Office, the Government Printing Office’ 
£ teS S iGaAen.eChn° l0gy “ d the United s S

105 STAT. 1080



Nov. 21 CIVIL RIGHTS ACT OF 1991 PJ - 102-166
Sec. 202

(5) Construction.—Nothing in this section shall alter the 
enforcement procedures for individuals protected under section 
717 of title VII for the Civil Rights Act of 1964 (42 U.S.C. 2000e- 
16).

SEC. 118. ALTERNATIVE MEAN'S OF DISPUTE RESOLUTION.

Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement nego­
tiations, conciliation, facilitation, mediation, factfinding, minitrials, 
and arbitration, is encouraged to resolve disputes arising under the 
Acts or provisions of Federal law amended by this title.

TITLE II—GLASS CEILING

SEC. 201. SHORT TITLE.
This title may be cited as the “Glass Ceiling Act of 1991 .

SEC. 202. FINDINGS AND PURPOSE.
(a) Findings.—Congress finds that—

(1) despite a dramatically growing presence in the workplace, 
women and minorities remain underrepresented in manage­
ment and decisionmaking positions in business;

(2) artificial barriers exist to the advancement of women and 
minorities in the workplace;

(3) United States corporations are increasingly relying on 
women and minorities to meet employment requirements and 
are increasingly aware of the advantages derived from a diverse 
work force;

(4) the “Glass Ceiling Initiative” undertaken by the Depart­
ment of Labor, including the release of the report entitled 
“ Report on the Glass Ceiling Initiative", has been instrumental 
in raising public awareness of— . . .

(A) the underrepresentation of women and minorities at
the management and decisionmaking levels in the United 
States work force; . . .(B) the underrepresentation of women and minorities in 
line functions in the United States work force;

(C) the lack of access for qualified women and minorities 
to credential-building developmental opportunities; and

(D) the desirability of eliminating artificial barriers to the 
advancement of women and minorities to such levels;

(5) the establishment of a commission to examine issues 
raised by the Glass Ceiling Initiative would help—

(A) focus greater attention on the importance of eliminat­
ing artificial barriers to the advancement of women and 
minorities to management and decisionmaking positions in 
business; and(B) promote work force diversity;

(6) a comprehensive study that includes analysis of the 
manner in which management and decisionmaking positions 
are filled, the developmental and skill-enhancing practices used 
to foster the necessary qualifications for advancement, and the 
compensation programs and reward structures utilized in the 
corporate sector would assist in the establishment of practices 
and policies promoting opportunities for, and eliminating artifi-

105 ST AT. 1081



st SESS. Nov. 21

e policymaking level; or 
immediate advisor with 
ional or legal powers of

ion .—
irred to in subsection (a) 
tion, not later than 180 
?ged violation, with the 
fission, which, in accord- 
s set forth in sections 554 
5 Code, shall determine 
shall set forth its deter- 
ual Employment Oppor- 
i violation has occurred, 
propriate relief.
'HORITIES.—
) of the Civil Rights Act 
apply with respect to any

of the application de- 
erm “any charge filed by 
ging an unlawful employ- 
t filed under this section, 
ed by a final order under 
. order under chapter 158 
trpose of this review, the 
ion shall be an “ agency 
e 28, United States Code, 
necessary to decision and 
decide all relevant ques- 

and statutory provisions, 
ider subsection (b) if it is

>f discretion, or otherwise

d procedures; or 
nee.
the court shall review the 
a party, and due account 
or.
referred to in subsection 

ng under this subsection, 
irt in accordance with the 
of the Civil Rights Act of

if any provision of section 
ms 309 and 320(aX3) shall

A MEMBER OF THE SENATE.

snate shall reimburse the 
fment made on his or her 
:ion committed under the 
■ Member of the Senate not 
ade.

Nov. 21 CIVIL RIGHTS ACT OF 1991

SEC. 321. REPORTS OF SENATE COMMITTEES.
(a) Each report accompanying a bill or joint resolution of a public 

character reported by any committee of the Senate (except the 
Committee on Appropriations and the Committee on the Budge ) 
shall contain a listing of the provisions of the bill or joint resolution 
that apply to Congress and an evaluation of the impact of suen
provisions on Congress. __

fb) The provisions of this section are enacted by the Senate as an 
exercise of the rulemaking power of the Senate, with full recogni­
tion of the right of the Senate to change its rules, in the same 
manner, and to the same extent, as in the case of any other rule of 
the Senate.
SEC. 325. INTERVENTION AND EXPEDITED REVIEW OF CERTAIN APPEALS, 

(a) Interven tion .—Because of the constitutional issues that m ay
be raised by section 309 and section 320, any Member of the Senate 
may intervene as a matter of right in any proceeding under section 
309 for the sole purpose of determining the constitutionality ot suen

Sefb)°THRESHOLD MAiTER.-In any proceeding under section_309 or 
section 320, the United States Court of Appeals for the Federal 
Circuit shall determine any issue presented concerning the constitu­
tionality of such section as a threshold matter.

(c) Appeal_ •
(1) In general.—An appeal may by taken directly to the

Supreme Court of the United States from any “ terireutory or 
final judgment, decree, or order issued by the United States 
Court of Appeals for the Federal Circuit ruling upon the con­
stitutionality of section 309 or 320. . . .  ., . . t

(2) Jurisdiction.—The Supreme Court shall, if it has not 
previously ruled on the question, accept jurisdiction over tne 
appeal referred to in paragraph (1), advance the appeal on the 
docket and expedite the appeal to the greatest extent possible.

TITLE IV—GENERAL PROVISIONS

SEC. 401. SEVERABILITY.
I f any provision of this Act, or an amendment made by this Act, or 

the application of such provision to any person or circumstances is 
held to be invalid, the remainder of this Act and the amendments 
made by this Act, and the application of such provision to other 
persons and circumstances, shall not be affected.

SEC. 402. EFFECTIVE DATE.
(a) In General—Except as otherwise specifically provided, this 

Act and the amendments made by this Act shall take effect upon

6 ( ^ C ertain D isparate Impact Cases.—Notwithstanding any 
other provision of this Act, nothing in this Act shall app y o any 
disparate impact case for which a complaint was filed before March 
1, 1975, and for which an initial decision was rendered after UctoDer
30, 1983.

105 ST AT. 1099

P.L. 102-166Sec. 402

98



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city 0? CHTTXSHATI. OHIO I
;:! L S INCINIJAXI P0L1CE DIV. >ARTHUR P . HULL, JR,
VILLIAM P, SHBEHAN 
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CHARLES E. S X S  JR ^
PHILIP W. BASHES, (* 
WILLIAM PAUL WATTS *7 
WENDELL YOUNG 
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t [ o s « c {  G l & Z j u J

ATTORNEYS

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MaryBeth Mertir.
Civil Sights Division 
U. S. Deparanent of Justice 
Washington, D. C. 20530

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rise X* ,t- i ---- * w_K itharine Bobbins & Jen H oltaaan, Eao

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C incinnati, Olio 45202 621-9100

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COMPLAINT

,'CON8SKT?DECREIION f0 ?  * a,:ry ° f  C o l l# ,a t  0< c r i i

”  J  J u . t .  e„ . , ot ( a t I I I
kemo oppos. (doc J « ! “ ! !  ? *1 05fdtr of » » l i c «  ( f n  y

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AN8WER & CROSS CLATv „* < .  y f t *__  mw&i CLAIM Of i j itorvtaor Ouns r-*- , ..
" • " *  ’ - — im r . _ _ _________ ^ utBa ('l t y  Lo<«*

ranted
" • • t in ?  ua? o f  a ? J u S i
»n d  UDOn r t f n i t a i i __^»aaoj^>fr cu stom ary  In 8  t ’T ^ M * * * !*

Tn Z --- 2 *■ u»* x,y tna
cr^^CCOrd4nca Rule 83(c)  ?■«<! ~|T^"TYf*"“  vs

T , m  ° J l i  -
“ ‘8 univ

££ntiff*
’ “ ww»VBr, 
University 
■1#*" »hall

answer to cross claim  0? ' H r " -  ' nts
PRELIM PT order. D laeovarr to ” TlRVEN0* d« * t -  ^ n c i ir
ANSWER /ahe y to b » ceap lite  Juno i - i m  catc/.h

j DEPOSITION of Elaor L. Dunaway, by p i t f . ^

hJÔ NT STIPULATIONS b itv t in  th* n  «... c  * j

j JOINT MOTION OP TUI USA i, 'TXy a r n V ^ 1 4 U8A 7* bc
1 decree . a - * ty ot CIi7T- MU entry or the consent
Ia FFIDaVIT o f V. Tolar “ CP
| MEMO 0PPOE, doc. (|»13) by ■•«.:
I fpt order - T r ia l  to =Cu r t "? S !r I * J 4» V S ? 5 , /abe
u m w m e k i  »  t f t  O H , ,  *,U i c

« f ° «  » f  * l » . r  l .  * Se * /“ «
PRE-TRIAL MEMORANDUM, by P l t f .  USA 

.PROPOSED PINDINCS OP pact IT P i - *
PRO?OSED COHL"S:OS8 0 ,  ‘ l  « .  7 y  ,

(JOINT STIPULATIONS, p i t f .  4 def t .

(MOTION TC intervene by cha f a nt i na l ,  aa a Pi c£
JOINT MOTION for antr* - *  p l c f * ' 4be
IcONSENT DECREE I  City d e J * r r S#rC decr**
(black anployae or f a a a l .  a n p l j y . i ^  0 l JJ* f °  d l * c r i « i a a c in *  a * . i a i t  
lf*  dat * th i .  d.eraa,  defts nlv not?* \* * ° T 6lB* 3 y r «

bhalr  daai r *  to tarninata ealc decraa P l t . L W/6° d* y“ aocice  
retent ion of j u r i . d i c t i on  inthie Ch* d^ l i n e .

cntc/abc 
eato/abc

a. *w ‘• • ‘ H i n a r i  •JLIC

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A P P E N D IX B



£00 ‘ 3St»d 3 P ;

1 .

2 .

3.

4.

5.

6.

7 .

NOTICE
taUMftCA
915.002
CAtt

p ” '
Act Conduct.
PTTttPQSB. This policy document is damages1provisionson whether the compensatory an pun pending charges and
of the Civil Rights Ac o ^ 9JhJpP^ecti?e date of the Act. to conduct occurring prior to tne eixe

DATS. On receipt.
. . „ t-r. wkoc order 205.001/ 

rHPT1,ITT™  *! ?n »e ae(*P) , this notice will remain in
i S ^ m U l ^ S  or U i r U d e d .

Title VI-./WA Division, Office of Leg.l Counsel.
TVcTnaeTiOHS. P ile  after Section 604 of Volume I I  
Compliance Manual.
gnp/rEfT MATTER.
The issue addressed here is w*etber^ A c T ^ V ^ V ^ a p p l y

punitive damages pr^dsiona of the £^i l  * <3 r to the effective
to charges challengingI conduct that °cc luJe8 that the damages 
date of the Act. The Commission to be considered as a remedy provisions do not so apply, but are natory conduct that
!» .11 =»e. ^ ^ ^ V - s  eff Ct?vr5.«, November 21, i m .  occurred on or after the acc b e u

I, ppmages ProyiSldhS.
Section 102 of the ci)ivil vRi9r^moensator1y9 and pauitive damages 

166 (hereinafter the "Act") makes P Title vil / the Americans 
available for inianlJsfinfll violatio "ADA" 1,2 and section 501 of 
with Disabilities Act ^he/ elgIla3f15erThese compensatory and punitive

^  e ^ l .  remedies (bach pay end

42 U.S.C. 5 2000e (1988) .
Pub. L. NO. 101-336, 104 Stef. 327 (1»«) (to be codified

at 42 U.S.C. $ 12101)
3 29 U.S.C. S 791 (1988).

DISTRIBUTION: CM Holders ■Bo4 P6XM ibi, M T V

£00 ‘ 39Hd an dan dai-dD«bN uioad 90=1!  26.  2 Ndf



£00 • 39bd c * » o . • w w a -
____________________ m - JlQ2

injunctive relief, already availably thoee^.tatute./
Section 102 provides, ziowever, that : be available under the ADAin dieparate impact caiea; tor will they P* ,f£ort no
where the respondent can showthat..t d 0 °  i m p o B B  an undue 
find a reasonable accommoa&tion that w u i u
hardship.5

under eection 102 of the Act, f«ing
awarded to compensate a complaining P ^ . compeneetory damages caused by intentional iiscr-rinatcry coaduc^^comp^^a^ |eouni’ry 
can reflect actual out-of-poiketpecnicrylo ^^ a„d mental'’
losses, and nonpecumery losses such as ^ ° ° av()ilabla where nhe 
anguish. Punitive iamagci. wil ■ respondent actedcomplaining party can demonstrate that the ̂  respondant^^ ^
intentionally end with malice or with . /1x. . federally protected rights." Section (b)(1).

Although a cieimant may request f u U  total Amount*that
past pecuniary losses, the Act plac - P nunitive damages and 
may be awarded to a complaining P5r^ d ̂ t u r e  pecuniary 1o b8«b . 
compensatory damages for Jonpe.cuni®E<y the employer and operate as
f S l i o T  lor thoVe employer, with more than 500 employ*** “ £

S « r s s s u r i s s ^

u s c‘ s i m  » ”th9ees t S r i l 1 ™ J $ £ £ « S l o  “  t f f
^ " p f l i f t s
including1t ™  Commission and the Attorney Generalectly\iSder Title

s t j a s -  i;H  J ?  s r & f f  s i
S S u ^ ’i  parties"who £ »  ? £ £ . r  u ^ h .  existinf provisions 
of section 1981.

5 Because the employment provisions of Title I of the ADA 
win not
charges under that starve. ana will not arise, and
tt l ^ r o treVt h L ° fpotUcyn gWu "  apVu** exclusively to Title VII.

‘ » « * - * £ •  *nd temportry
this count. See, I lI lj yoncy o , c _nq ,b . n * Title VII

finterpreting^th^ahaloqous provision in Section ? £ £

VII), egyp, denied/ 416 U ' ° n o t  included under the concluded that part-time employees are no^

t-00 ‘ 30Hd Uld'H 0 .. dan-dDUdN woad 90 : i I  26.  2 Ndf



?00 ' 3£)q?d k & •

915.0Q2 12/91

$300,000; for employers 
cannot exceed $200,000; 
$100,000; and for those

with 201 to 500 employees, those damages 
for those with 101 to 200 employees, 

with 15 to 100 employees, $50,000.
IX. nf images Provisions to .Pending CherffQg 3hd

ppe-Act Conduct
A. gHfltn1-Qrv language and Legislative History

Section 402 of the Act provides that "except as otherwise 
specifically provided, this Act and the amendments made by this Act, 
shall take effect upon enactment." Since no provision delays the 
effective dote, it is. clear that all of the Act's provisions apply 
to any conduct occurring on or after November 21, 1991, when the 
President signed the bill into law.

The above quoted language is not clear, however, as to pending 
cases or post-Act charges challenging pre-Act conduct. On its 
face, the language could be construed to mean that the Act applies 
to any charge or case in process on or after the date of enactment. 
The language could alternatively mean that the Act affects only 
conduct occurring after that date.

Two sections of the Act contain specific exemptions for pre- 
Act conduct, arguably suggesting that the remaining provisions of 
the Act, including section 102, are to be applied to pending cases. 
Section 109(c) of the Act states that the amendments made by that 
section* "shall not apply with respect to conduct occurring before 
the date of the enactment of this Act." Section 402(b) provides 
that * r notwithstanding any other provisions of this Act, nothing 
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." The intent of this

definition of "employer" in Title VII and the AD**,^Twnermac v. North Anerlcan Signal Co., 7 04 F . 2d 347, 354 (7 th Cir. 
1983) (ADEA), those conclusions were based on the definitional 
requirement that employers have the requisite number of employees 
"for each working day in each of twenty or more calendar weeks. 
Because the language of Section 102 of the Act does not contain the 
"each working day" requirement, any rationale for a 2JJSBSJ3D4I1 type 
of result has been eliminated with respect to calculating caps on 
damages.

7 Finally, section 102 also provides the right to jury 
trial if damages are sought and bars a court from informing the 
jury of the statutory limits on the amount of damages awarded.

* Section 109(c) extends Title VII and ADA protections^to 
U.S. citizens working in foreign countries for American companies 
or for companies controlled by American employers.

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provision was to provide assurances that the Wards Cove packing 
Company, the employer in wards Cove Packing Co- v- A t o m s , 490 U.S. 
642 (1989), would not be subjected to the Act's standards governing 
disparate impact cases. See 137 Cong. Rec. S15,483 (daily ed. Oct. 
30, 1991) (statement of Senator Darforth).

While the above sections may create an inference that the 
remainder of the Act has retroactive* effect, it cannot be said 
that 'then language (of those section*}- requires this result." 
Hoven v. Georgetown- Univ. Hoap. , 488 U.S. 204, 208 (1988). In
addition, the legislstive history offers conflicting views on the * 
retroactivity of the Act and does not conclusively resolve the 
issue. Compare. e.g. . 137 Cong. Rec. S15,483, S15,485 (daily ed. 
Oct. 30, 1991) (statement of and interpretative memorandum
submitted by Senator Danforth); i<i. at S15,478 (section-by-section 
analysis submitted by Senator Dole); id* at S15,953 (daily ed. Nov. 
5, 1991) (document submitted by Senator Dole); id* at S15,966
(statements of Senators Durenberger and Simpson) wi£ji 137 Cong. 
Rec. S15,485 (daily ed. Oct. 30, 1991) (statement of Senator
Kennedy); id- at SL5,963, S15,9(54 (daily ed. Nov. 5, 1991)
(statement of and exhibit submitted by senator Kennedy).

B. Judicial Precedents
The Supreme Court has stated that "where the congressional 

intent is clear, it governs" with regard to the retroactivity of 
a statute. Kaiser A1 iminum & Chemical Corp. y t PoniQrng, H O  S.Ct. 
1570, 1577 (1990). Where congressional intent with regard to
retroactivity is less clear, the Supreme Court has employed 
presumptions to determine the applicability of new lawB to pending 
cases. There are two lines of cases that address appropriate 
presumptions in thi i- context; one line is represented by the 
Supreme Court's decision in Bradley v. Richmond School Board, 416 
U.S. 696 (1974), and the other by the Court's decision in Bowen v. 
Georgetown University Hospital. 483 U.S. 204 (1988).

* The term "retroactive" is used in most court cases to 
refer to application of a law or decision to conduct occurring 
prior to passage of the law or issuance of the decision. Some 
courts and commentators differentiate between "retroactive" and 
“retrospective" application -- the former referring to application 
of a new law or case to matured rights, e .o.. to a case that has 
gone to final judgment, and the latter referring to application of 
a new law or case tc pending controversies. The use of the*term 
•retroactive" here refers to the latter category of cases, 1,e .. 
non-final controversies concerning pre-Act conduct.

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At issue in Bradley was the propriety of applying a newly 
enacted attorney's fees statute to a pending case. The Cour , 
there, invoked the rule 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 a statutory direction or 
legislative history to the contrary." 416 U.S. at 711. The Court 
read Thorpe v. Housing Authority v. City of ayriiaSI/ 393 u.S. 26B 
(1969), as standing for the proposition that "even where the 
interfveningl law dees not explicitly recite that it is to be 
applied to pending cases, it is to be given recognition ana* 
effect." gradlev. 416 U.S. at 715. The Court expressly rejected 
the contention that "a change in the law is to be given effect in 
a pending case only where that is the clear and stated intention 
of the legislature." Id.

In Bowen. after a court invalidated Department of Health and 
Human Services 1981 regulations regarding reimbursable Medicare 
costs for hospitals, HHS rsissued the regulations and applied them 
retroactive to 1981.11 When HHS sought to recoup sums previously 
paid to the hospitals as a result o:f the previous court ruling, the 
hospitals sued, challenging the Secretary's authority to 
retroactively apply the second set of regulations. The^Supreme 
Court struck down the new regulations, finding no legislative 
authority for HHS to issue retroactive rules. In contrast to 
Bradley, the Court stated that "[rRetroactivity is not favored in 
the law. Thus, congressional enactments and administrative rules 
will not be construed to have retroactive effect unless their 
language requires this result." gowen, 488 U.S. at 208.

Subsequently, ii Kaiser Aluminum & Chemical Corp. v. Boniorn^, 
110 S.Ct. 1570, 1577 (1990), the Supreme Court stated that there 
is “apparent tension1 between the "rule articulated in Bradley" and 
"the generally accepzed axiom that '[r ]etroactivity is not favored

10 The district court in Bradley had awarded attorney's fees 
to the plaintiffs based cn the court's general equitable powers. 
The new statute authorizing attorney's fees was enacted after 
initial submission of the case to the appellate court, but prior 
to its decision. The court of appeals reversed the district 
court’8 award of dees, finding that such an award must be 
authorized by Congress and that the new attorney's fees statute 
did not apply to the case.

11 The court had struck down the 1981 regulations on the 
basis that the Secretary had violated the Administrative Procedure 
Act by failing to provide notice and an opportunity for public 
comment before issuing the rule. When the Secretary subsequently 
reissued the regulation, it first published a notice seeking public 
comment.

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in the law.'"12 Indeed, in a concurring opinion in the Sfllaeg case, 
Justice Sc&lia argued that the 3radley rule could not be reconciled 
with the "principle that legislation is tô  be applied only 
prospectively unless Congress specifies otherwise." Id* ®- 1579 
(Scalia, J., concurring). Justice Scalia urged the Court to 
discard Bradley in favor of the anti-retroactivity presumption.

Other courts, toa, have noted that the two lines of cases are 
somewhat contradictory.13 In terms cf the damages provisions in the 
Civil Rights Act of 1991, Bowen requires that they be applied 
prospectively, since the absence of an explicit statement of-* 
Congressional intent on this matter means that those provisions 
cannot be applied to pending cases. On the other hand, Bradley, 
requires retroactive application of the damages provisions, unless 
manifest injustice14 would result. One could argue that employers 
would indeed suffer manifest injustice if they were required to pay 
damages for conduct taat occurred before the law provided for such

12 The majority in Kaiser found that it did not need to 
reconcile the apparent conflict because the plain language of the 
statute at issue evidenced clear Congressional intent against 
retroactivity. Kaiser. 110 S.Ct. at. 1577-78. As previously noted, 
the Kaiser court recognized that "where the congressional intent 
is clear, it governs." Id. at 1577.

13 For a detailed discussion of the apparent conflict 
between the Bradley and Bowen lines of precedent, ge$ Bflyargae.,y,, 
Mason S Hanoer-Sllas.Mason Co./ Inc ,̂ 911 F.2d 1377, 1388-93 (10th 
Cir. 1990) (refusing to apply Civil Rights Restoration Act of 1987 
retroactively), cert, denied. 111 S.Ct. 789 (1991). For cases 
reaching the opposite result and giving retroactive application to 
the Civil Rights Restoration Act of 1987, see Ayers v. Allaln, 893 
F.2d 732 (5th Cir.) (retroactive application appropriate when 
Congress enacted the statute to return legislation to previous 
posture following contrary Supreme* Court interpretation of it), 
rev'd en banc on other oroundB, 914 F.2d 676 (1990), pert, granted. 
Ill S.Ct. 1579 (1991) (retroactivity issue not briefed or argued);
LuBsiar v. Dugger. 904 F.2d 661 (11th Cir. 1990); Leake v._Lflafl
island Jewish MedicaL Ctr. . 695 F. Supp. 1414, 1417-18 (B.D.N.Y, 
1988), aff«d. 869 F.2d 130 (2d Cir. 1989); Bonner v, Arizona. DCP't 
gf Corrections. 714 V . Supp. 420, 422 (D. Ariz. 1989).

14 in Bradley, the Court outlined three factors for 
consideration whether manifest injustice would result 'from 
retroactive application of a statute: "(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 the law upon those rights." 416 
U.s. at 717.

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a penalty.15 However, it could also be argued that# in light of 
the public concerns inherent to Civil Rights Act litigation, 
requiring employers to pay unforeseen damages for unlawful 
discrimination is not manifestly unjust.*s

Thus, in light of the ambiguity in legislative history and 
Supreme Court precedent, the issue of whether the damages 
provisions in the new Act should be applied retroactively is much 
in question. As of the time of the writing of this document, five 
federal courts have, addressed the question, and have reached* 
different conclusions. Vftn tfeter v. Barr, No. 91-0027 (D.D.C.
Dec. 18, 1991), reprinted in 245 Daily Lab. Rep. (Dec. 20, 1991) 
at D-l {refusing to apply damages provisions of Civil Rights Act 
of 1991 to pending suit against federal agency); Hansel V«
Service Co. . No. 88-11-853 (D. Colo. Dec. 11, 1991), summary printed 
in 245 Daily Lab. Rep. (Dec. 20, 1991) at A-3 (compensatory and 
punitive damages of 1991 Civil Rights Act not available in pending 
cases); James v. American. International Recovery/ Ins.., No. 1;89- 
CV-321 (N.D. Ga. Dec. 3, 1991), summary printed in 234 Daily Lab. 
Rep. (Dec. 5, 1991) at A-l (1991 Civil Rights Act does not apply 
to cases arising before the effective date of the Act); La CgaC-Yi 
Harris County. No. 3-89-1532 (S.D. Tex. Dec. 6, 1991) (granting
demand for jury trinl in Title VII suit); Moiica v_. Gannett Co..
No. 90 C 3827 (N.D. 111. Nov. 27, 1991), reprinted in 235 Daily 
Lab. Rep. (Dec. 6, 1991) at D-l (damages under Civil Rights Act of 
1991 are available in cases pending at time of enactment). Bowen 
represents the Supreme Court's more recent holding on this issue, 
and the Commission will follow the dictates of that case with 
regard to the retroactivity of the damages provisions. Accordingly, 
the Commission will not seek damages in charges filed prior to 
enactment of the Act, or in post-Act charges that challenge pre- 
Act conduct.

u Arguably, the new damages provisions alter employers' 
expectations, in contrast with the’ facts as they arose in Bradley. 
The statute at issue in ftr.idley merely created an additional basis 
for the recovery of attorney's fees; according to the Court, 
different theories could independently have required the same 
result, and thus ths new law “[did] not impose an additional or 
unforeseeable obligation upon [the defendant]." Bradley, 416 U.S. 
at 721. ££. Bess v. Bess. 929 F.2d 1332, 1335-6 (8th Cir. 1991) 
(retroactive application of damages provision in Electronic 
Communications Privacy Act of 1986 would result in "manifest 
injustice14 since it "could alter the rights of Individuals and the 
expectations of private litigants1).

r
16 in Bradley, the Court found no manifest injustice in 

retroactively applying the law at issue, in part due to the public 
concerns -- the pursuit of nondiscriminatory education -- inherent 
to the case. Arguabi.y, the pursuit of nondiscriminatory employment 
is a comparable public goal that militates against a finding of 
manifest injustice in retroactively applying the damages provisions 
in the new Civil Rights Act.

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III. Conclusion
For the reasons set forth above, the Commission will not seek 

damages under the Civil Rights Aet of 1991 for events occurring 
before November 21/ :1991.

Q t r .  v \  m i
Date Evan J. 

Chairman

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