Harassment, Now and Then

May 01, 1994

The Supreme Court has rebuffed the Clinton Justice Department and ruled that the Civil Rights Act of 1991 does not apply to suits filed earlier. The decision has been attacked in some quarters as another example of the cold conservatism of Nixon-Reagan-Bush justices. In fact, it was supported by eight justices, including Clinton nominee Ruth Bader Ginsburg. Only Justice Harry Blackmun dissented. Gerald Ford nominee John Paul Justice Stevens, whose voting record last term was even more liberal than Justice Blackmun's, wrote the opinion.

Retroactivity is almost always unfair. Congress may require it in some situations, but when it does not, judges usually find it unacceptable. Some supporters of retroactivity in the two cases before the court say that while the 1991 act doesn't specifically ,, apply to pending cases, the "legislative history" indicates that's what Congress meant. Anyone who has ever watched a congressional floor debate or been privy to the whispered cloakroom agreements knows better than to give debate more credence than the plain language of a law.

In this, "presidential history" is a better guide to congressional intent. A similar civil rights act specifying retroactivity was passed but vetoed in 1990. Members of Congress knew in 1991 that they could get an act on the books only without retroactivity, so they dropped it. To come back and say in court that a majority of Congress and the president favored such a provision is absurd.

A principal difference in the 1991 act and the laws on the books prior to 1991 is that victims of workplace discrimination can get a jury trial and punitive damages. The facts related to that in the case at issue were interesting:

A woman in Texas plastics plant claimed a male fellow worker sexually harassed her. Her employer agreed and reprimanded fTC and transferred the man. Then the woman quit her job, for an unrelated reason, but took legal action against her employer. The Equal Employment Opportunity Commission and a federal trial judge ruled for the employer. She appealed, and the appellate court said, after the 1991 act was signed, that the lower court decision was correct under the old law and could not be sent back to it for trial under the new law.

Judging by the trial record, this seems like a frivolous suit. If the new law produces an increase in the number of suits like it, there could be a backlash, even among supporters of tough civil rights laws and enforcement.

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