Academic journal article Labor Law Journal

Accepting the Challenge: Affording Federal Employees Limited De Novo Review of Remedies in Title VII Actions in the Wake of Scott V. Johanns

Academic journal article Labor Law Journal

Accepting the Challenge: Affording Federal Employees Limited De Novo Review of Remedies in Title VII Actions in the Wake of Scott V. Johanns

Article excerpt

Federal-sector employment discrimination complaints must conform to a series of sophisticated statutory provisions. These requirements establish a methodical-and potentially difficult-process for federal-sector employees seeking relief through such claims. Despite their complexity, these provisions are incomplete. The recent decision from the D.C. Circuit Court of Appeals, affirming the U.S. District Court of the District of Columbia, in Scott v. Johanns1 highlights a critical issue that the provisions do not address-whether or not administrative decisions on the merits bind federal courts in subsequent actions challenging only the remedies the administrative agencies award. In Scott, both the district court and the court of appeals held that complainants who challenge administratively-awarded damages must prove their entire case de novo if they seek to dispute the remedy in federal court. This article explains the fundamental flaws in this decision-in terms of both the legal analysis employed and practical implications involved. It specifically exposes why the ruling rests on shaky grounds and explains why, in light of more persuasive and relevant guidance, federal-sector employment discrimination complainants should be able to pursue limited de novo review of remedies awarded by administrative agencies in federal court.

Part I of this article provides a general overview of the Title VII provisions and the Equal Employment Opportunity Commission ("EECXZ") regulations that govern federal-sector employment discrimination claims. Part II describes the uncertainty surrounding courts' application of Title Vn regulations to situations in which complainants have received a favorable outcome on the merits at the administrative level yet seek review in federal courts of only the remedies awarded by the administrative agency. This Part focuses on the recent decisions in Scott,2 which highlight the current controversy as to whether or not courts may review remedies awarded by administrative agencies without simultaneously reviewing the entire case de novo. It also sets forth the D.C. Circuit's reasoning in denying Scott limited de novo review. Part III critiques the D.C. Circuit's analysis. In particular, this Part exposes the court's arbitrary characterization of the action as one that is not entitled to limited de novo review under Title VII, misinterpretation of the plain meaning of Title VII, and misplaced reliance on inapplicable case law. Part IV sets forth factors the court should have considered more carefully in making its determination and that favor limited de novo review. Part V suggests solutions that are consistent with the substance of Title VII's provisions for resolving federal-sector employment discrimination claims as well as the significant policy concerns entailed.


Title VII of the Civil Rights Act of 1964 is the comprehensive statutory scheme prohibiting employment discrimination based on race, color, religion, sex, or national origin.3 Since its enactment in response to the failure of collective bargaining units' ability to effectively resolve employment discrimination disputes,4 Title VII has become a common source of support for complainants alleging unlawful discrimination practices since the 1970s.5

In its short life, the character of federal antidiscrimination employment law has substantially evolved.6 As forms of discrimination have progressed from overt to subtle, courts have become more willing to consider "discriminatory effect," as opposed to solely "discriminatory intent"7 and more likely to rely on the U.S. Constitution, rather than statutorily-defined protections.8 More recently, procedural questions have taken center stage in employment discrimination-related disputes.9

Title VII applied only to private-sector employees until Congress extended its protection to their federal-sector counterparts in 1972.10 Emphasizing that "equal employment opportunity is of paramount significance" in the federal sector,11 the House committee majority remarked that:

Americans rely upon the maxim, "government of the people," and traditionally measure the quality of their democracy by the opportunity they have to participate in governmental processes. …

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