Rights law won't affect pending suits, EEOC says

December 31, 1991|By New York Times News Service

WASHINGTON -- In an authoritative statement of policy, the Equal Employment Opportunity Commission declared yesterday that the new civil rights law does not apply to thousands of cases filed by people who say they suffered job discrimination before the measure was signed by President Bush on Nov. 21.

The ruling means that workers who filed complaints alleging discrimination before that date must try to prevail under the old rules, which made it much harder to prove discrimination and limited the compensation they could obtain if they won.

Under the commission's policy, the benefits of the new law, including jury trials and punitive and compensatory damages of up to $300,000, would also be unavailable to people who file lawsuits in the future complaining of discriminatory conduct that occurred before Nov. 21.

Whether the new law applied to pending cases was one of the most important and contentious questions surrounding the measure, passed after more than two years of bitter dispute between Congress and the White House.

In the debate on the legislation, Republican and Democratic members of Congress expressed sharply differing opinions on that question, and the statute itself does not clearly resolve the matter. With thousands of cases pending around the country, the question may ultimately be appealed to the Supreme Court.

Evan J. Kemp Jr., chairman of the commission, said the new policy was adopted unanimously by the panel of three Republicans, one Democrat and one independent, all appointed by President Bush or President Ronald Reagan. The commission describes itself as "America's primary civil rights law-enforcement agency" and has the authority to carry out laws on discrimination.

In its policy statement, the commission acknowledged that parts of the law create "an inference" that it should apply to past discrimination and to pending cases, and the agency said some judicial precedents would support that view.

But the commission said the Supreme Court's most recent decision on this issue suggests that a new law should not be construed to have retroactive effect where the language of the statute or the intent of Congress is ambiguous.

Civil rights lawyers, criticizing the commission's decision, said it would severely limit the initial impact of the new law. Job discrimination on the basis of race or sex, they note, was illegal before Nov. 21; the effect of the new law is to make discrimination easier to prove and to increase the penalties very substantially.

"From the plain language of the statute, it should be clear that Congress intended the Civil Rights Act of 1991 to apply to pending cases," said Joseph M. Sellers, director of equal employment opportunity programs at the Washington Lawyers' Committee for Civil Rights Under Law.

But the Supreme Court, now controlled by conservative justices, would appear likely to side with the commission.

While acknowledging contradictory Supreme Court precedents, Justice Antonin Scalia said in a case last year that it was "contrary to fundamental notions of justice" and "contrary to the wisdom of the ages" to apply laws retroactively.

A major purpose of the new law was to overturn Supreme Court decisions that made it harder for victims of discrimination to win in court.

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