The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change

By Seiner, Joseph A. | William and Mary Law Review, December 2008 | Go to article overview

The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change


Seiner, Joseph A., William and Mary Law Review


ABSTRACT

Punitive damages were described by one early court as "an unsightly and an unhealthy excrescense." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in discrimination cases brought under Title VII. Kolstad has only generated more confusion concerning the proper standard for exemplary relief, and recent district and appellate court decisions reflect this uncertainty.

Attempting to determine the impact of punitive damages in Title VII cases after Kolstad, I performed an analysis o fall federal district court decisions during the calendar years of 2004 and 2005. The study examined over six hundred district court opinions issued during this timeframe. Of these cases, there were only twenty-four district court decisions either awarding punitive damages under Title VII or upholding a jury's award of punitive relief. An additional study further revealed that slightly less than 18 percent of those Title VII cases that went to a jury resulted in a punitive damage award by the jury, and approximately 29 percent of those juries that found in favor of the plaintiff also awarded punitive damages.

This Article explores the basic foundations of punitive damages in the American judicial system, and examines the goals of providing this form of relief in employment discrimination cases. The Article further examines a study performed on the effectiveness of punitive damages in Title VII cases. After analyzing this data, this Article suggests one alternative way of better achieving the original deterrent purpose behind the addition of punitive damages to Title VII. The Article proposes a three-part framework for analyzing all cases of intentional discrimination and recommends adopting a new scheme for remedial relief under Title VII. The Article then explores the implications of adopting the proposed approach and examines how the proposal fits within the contours of the academic scholarship. The Article concludes by urging that the congressional intent of deterring unlawful discrimination can more properly be achieved through the proposed form of relief.

TABLE OF CONTENTS

INTRODUCTION
  I. THE HISTORY OF PUNITIVE DAMAGES AND THE LAW
     A. Evolution of Doctrine in American Law
     B. Purpose of Punitive Damages
 II. PUNITIVE DAMAGES IN EMPLOYMENT
     DISCRIMINATION CASES
     A. Legislative History of the Civil Rights
        Act of 1991
     B. The Revised Statute
III. THE SUPREME COURT ADDRESSES PUNITIVE
     DAMAGES UNDER TITLE VII
     A. Kolstad v. American Dental Association
     B. Interpreting Kolstad
 IV. THE FALSE PROMISE OF PUNITIVE DAMAGES:
     AN EXAMINATION OF DISTRICT COURT CASES
     A. Methodology
     B. Results of Study
     C. Weaknesses of Analysis
     D. Analysis Conducted in a Different Database
        1. Jury Verdict Research Methodology
        2. Results of Jury Verdict Research's Analysis
        3. Rationale for Differences in Results
     E. District Courts Erect Additional Barriers to
        Punitive Relief
        1. District Courts Vacate Awards
        2. Courts Refuse To Give Punitive Damage
           Question to Jury
     F. Conclusions of Analysis
  V. A CALL FOR CHANGE
     A. Liquidated Damages Proposal for Title VII
        1. Actual Damages Doubled
        2. Abandon the Malice or Reckless
           Indifference Standard
        3. Eliminate the Statutory Cap for
           Liquidated Damages
        4. Good Faith Defense
     B. … 

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