THE CIVIL rights bill pending in the Senate is described by defenders as mainly an effort to restore important technical changes made in equal employment law by a new Supreme Court majority last year. The legislation does indeed seek to undo those court decisions, which together appreciably weakened the law as it had been previously understood. But that is not all it does; it would extend prior law as well as repair it. The leading example has to do with the price of a finding of discrimination -- what plaintiffs can sue for and get if they win.
Under old law, the most that the typical winning plaintiff could get was to be made whole in the limited sense of being awarded the job or promotion and back pay found to have been wrongly denied. That was all that a judge was empowered to order, and the law did not provide for jury trials. Only in one class of cases could plaintiffs seek more. Under a post-Civil War statute plaintiffs charging intentional racial discrimination were entitled to ask for jury trials and seek not just lost rank and pay but compensatory and punitive damages.
The Supreme Court last year narrowed the application of this Reconstruction Era statute, called Section 1981; the pending legislation would restore its prior scope. Then it would take the important further step of giving all other persons charging intentional discrimination the same access to jury trials and damages. That's new. The arguments in favor are 1) that discrimination on the forbidden bases of religion or sex or disability are as wrong as racial discrimination, and victims should have the same recourse, and 2) that reinstatement and back pay do nothing for a victim of harassment or other such on-the-job mistreatment that stops short of loss of job or pay; only damages can help.
The point is also made that the threat of damages would act as a deterrent and that the damages would only be available for odious conduct: for compensatory damages the discrimination would have to be shown to have been intentional, and for punitive it would have to be found to have been malicious and to have been carried out with "reckless and callous indifference to ... federally protected rights" as well.
But this is a larger shift in the law than in some of their rhetoric the proponents acknowledge, and we think it goes too far. We have grave reservations about the system of punitive damages generally. It is erratic and abused. If legislatures want to punish behavior they should criminalize it and set clear penalties, not leave that to the uneven results produced by contingency fees and the jury process. If a system of punitive damages has to be retained, the proceeds should go to the state, not the victims. That would help take the roll of the dice out of such litigation. If indeed they are punishment and not compensation, such damages should be treated in the same way as fines.
Nor is it a problem for us if racial and the other prohibited forms of discrimination are differently treated; they are different. Racial discrimination occupies a place in our history and the law that discrimination on such bases as sex or handicap simply do not. Its victims have a special status, exercise a special claim. If the law now strands victims of such other forms of discrimination as sexual harassment, Congress should fashion a particular remedy for them, not broaden the present remedies for all. Most of this bill -- the restorative part -- deserves to be passed. The damages section needs to be cut back.