July 26, 2009
Muslim workers lacked uniform beliefs, commonality; Title VII class cert denied
Haliye v Celestica Corp, ___F.Supp.2d ____ (D. Minn. June 10, 2009), is an interesting case. The district court in Minnesota declined to certify a class of 22 Muslim employees in a Title VII religious accommodation suit, concluding there was a lack of commonality among class members. Establishing a prima facie religious accommodation claim requires an individualized, fact-specific inquiry into whether the plaintiff has a bona fide religious belief, whether the plaintiff informed her employer of her belief, and “whether the plaintiff suffered discipline as a result of her failure to comply with a conflicting employment requirement.” In this case, none of those issues can be resolved on a class-wide basis. As the court stated "[m]ost strikingly, plaintiffs do not hold uniform beliefs about when they are required to pray — the issue that lies at the heart of this case.” Some plaintiffs believed it was necessary to pray at precise times; others believed they need only pray within a certain window of time.
Mitchell H. Rubinstein
February 05, 2009
Markel, Seiner on punitive damages
Two good law review articles on punitive damages have been released this month. The Cornell Law Review has published "Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction" by Dan Markel (Florida State). Here is the abstract:
Not long ago, Professor Cass Sunstein and his co-authors lamented that our legal culture lacks “a full normative account of the relationship between retributive goals and punitive damages.” This Article offers that full normative account—through a theory of “retributive damages” as intermediate civil sanctions. Under the retributive damages framework, when people defy certain legal obligations, the state may either seek to punish them through traditional criminal law or make available the sanction of retributive damages, which would be credited against any further criminal sanctions imposed by the state for the same misconduct. Accompanied by an intermediate level of procedural safeguards, retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a civil fine determined largely by the reprehensibility of the defendant’s misconduct. The base amount of the fine would assess a percentage of the defendant’s wealth (or net value for entities) that increases with the reprehensibility of the defendant’s misconduct, an assessment informed by guidelines and commentary provided by the state. The total retributive damages award should also include gain-stripping amounts, if any, in excess of compensatory damages, as well as lawyers’ fees and a modest and fixed award for the plaintiff for bringing the matter to the public’s attention. These payments (to the state, the plaintiff, and the lawyers) together constitute a sensible way to structure the aspect of extra-compensatory damages designed to advance the public’s interest in retributive justice.
After offering some background on punitive damages and how retributive justice differs from other rationales for punitive damages (such as optimal deterrence or victim vindication), the Article describes the structure of retributive damages and clarifies the comparative advantages of retributive damages vis-`a-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Sunstein’s challenge, but also promises to make sense of the Supreme Court’s recent and somewhat puzzling holding in Philip Morris USA v. Williams, i.e., that juries may not calculate punitive damages by considering the amount of harm caused to nonparties to the litigation.
Markel also has forthcoming "How Should Punitive Damages Work?" in the University of Pennsylvania Law Review and these two articles make an important contribution to the punitive damages debate.
The William & Mary Law Review has published "The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change" by Joseph A. Senier (South Carolina) in its most recent issue. This article addresses the Title VII's punitive damages framework and recommends a 3-part test for awarding liquidated (versus exemplary) damages in employment discrimination cases. From the article:
[T]he three-part test for determining liquidated damages in Title VII claims of intentional discrimination would proceed as follows:
1. The plaintiff would have the burden of persuasion of demonstrating intentional discrimination to the trier of fact.
2. If intentional discrimination is proven, the trier of fact and district court judge would determine the appropriate amount of relief under the statute. The question of punitive damages would not be at issue.
3. The defendant would have an opportunity to establish an affirmative good faith defense to the trier of fact. If the defense is successful, no liquidated damages would be awarded. If the defense is unsuccessful, the district court would award liquidated damages in the amount equal to actual damages in the case.
These articles are recommended for anyone interested in recent scholarship about punitive damages.