Black Workers in White Unions: Job Discrimination in the United States

By William B. Gould | Go to book overview
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6 Remedies (II): Back Pay, Punitive Damages, Attorneys' Fees, and Test Validation

Title VII, in addition to providing for injunctive relief and affirmative action as remedies for statutory violations, empowers the courts to issue relief "with or without back pay."1 The statutory language and policy are derived from the National Labor Relations Act, which empowers the National Labor Relations Board to fashion relief with or without back pay. The Title VII back-pay provisions are patterned on the Taft-Hartley model. Under the Taft-Hartley Act, more than compensation is involved in the award of back pay. The purpose is to implement the public-policy objectives contained in the statute.

The Circumstances under Which Back Pay Is Awarded

The leading decision on back pay is Albermarle Paper Company v. Moody, in which the Court, while noting that the back-pay award is not "automatic or mandatory," stated that the statutory scheme was aimed at "an historic evil of national proportions." The Court limited severely the power of the trial court to deny such a monetary remedy. Justice Stewart said, "Important national goals would be frustrated by a regime of discretion that "produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.' "2

The Court, in Albermarle, noted that the relevant statutory provisions in Title VII have dual origins. In the first place, the Court stated, the backdrop for antidiscrimination legislation is that the judiciary has a constitutional duty to eliminate the discriminatory effects of the past as well as the future. "Necessary relief" and "complete justice" acquire a "special meaning" under such circumstances. Second, the Court remarked that the "make whole" purpose of Title VII's remedial provisions was tailored according to that of the National Labor Relations Act. The Court stated, "We may assume that Congress was aware that the Board, since its inception, has awarded back pay as a matter of course -- not randomly or in the exercise of a standardless discretion."3 The presumption that back pay is to be awarded has been established with clarity.

Moreover, Justice Stewart also asserted that in class actions the victims of discrimination who are unnamed parties to the litigation need not file charges with the EEOC. This assertion is in keeping with the general theme of Albermarle: "Given a finding of unlawful discrimination, back pay should be denied only for


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