Individualizing Back Pay Relief in Title VII Class Actions


Under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“1991 Act”), back pay is one of the available monetary remedies for victims of discriminatory employment practices. The primary goal of the 1991 Act, signed into law on November 21, 1991, was to revitalize the nation’s employment discrimination laws. The 1991 Act was expected to accomplish this goal, in part, by strengthening the substantive provisions supporting disparate impact claims by legislatively overturning the Supreme Court’s ruling in Wards Cove Packing Co. v. Atonio.

The scope and effectiveness of a law is determined as much by the contours of the remedy it provides as by the standards for determining its violation. In the context of antidiscrimination law, commentators have traditionally focused on injunctive relief. Recent scholarship, however, has emphasized the importance of monetary remedies in providing incentive for victims of employment discrimination to pursue what are often difficult and lengthy Title VII claims. Congress recognized the connection between remedy and liability in the 1991 Act by providing for compensatory and punitive damages for victims of intentional discrimination in the workplace. However, the primary monetary remedy in disparate impact actions remains back pay. Given Congress’ reaffirmation of disparate impact as a central theory for proving employment discrimination, an analytic exploration of the monetary relief for such Title VII violations is in order.

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