Friday, June 6, 2014

Weighing in on Wal-Mart - Part Three – Revised Relief

I am continuing here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision.  I am not attempting to critique the decision, but rather seek to present different ways that plaintiffs can work around the case.

The approach I offer today is admittedly the most difficult Wal-Mart work around to implement – – revised relief. Title VII currently permits a combined total of $300,000 in compensatory and punitive damages for victims of discrimination in cases brought against large employers. This relief has remained static since the Civil Rights Act of 1991 was passed almost 25 years ago. Indeed, the inflationary effect of time has substantially eroded the impact of these damages. It would take over half a million dollars in damages today to have the same real dollar impact of $300,000 in 1991.

Punitive damages serve many purposes. Three of the most commonly cited reasons for this form of relief are deterrence, retribution, and education.  Class-action claims brought against employers serve many of the same purposes. The threat of class actions deter employers from engaging in discriminatory conduct, punish employers that do break the law, and educate the public when large dollar verdicts hit the news.

As class-action claims are likely diminished following Wal-Mart, now is the time for Congress to consider raising or eliminating the statutory caps on punitive damages to help fill the void of shrinking class-action claims. Alternatively, litigants (and the government ) should more actively pursue cases that can yield punitive relief to help vindicate the purposes of Title VII.  A more thorough discussion of my revised relief proposal can be found here.

I encourage others to weigh in on the comments below on different ways that relief can be used as a way of effectuating antidiscrimination statutes.  I will continue shortly with a discussion of how issue class certification can be used to help limit the Court’s Wal-Mart decision.


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