The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change

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Punitive damages were described by one early court as "an unsightly and an unhealthy excrescense." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in discrimination cases brought under Title VII. Kolstad has only generated more confusion concerning the proper standard for exemplary relief, and recent district and appellate court decisions reflect this uncertainty.
Attempting to determine the impact of punitive damages in Title VII cases after Kolstad, I performed an analysis of all federal district court decisions during the calendar years of 2004 and 2005. The study examined over six hundred district court opinions issued during this time frame. Of these cases, there were only twenty-four district court decisions either awarding punitive damages under Title VII or upholding a jury's award of punitive relief An additional study further revealed that slightly less than 18 percent of those Title VII cases that went to a jury resulted in a punitive damage award by the jury, and approximately 29 percent of those juries that found in favor of the plaintiff also awarded punitive damages.
This Article explores the basic foundations of punitive damages in the American judicial system, and examines the goals of providing this form of relief in employment discrimination cases. The Article further examines a study performed on the effectiveness of punitive damages in Title VII cases. After analyzing this data, this Article suggests one alternative way of better achieving the original deterrent purpose behind the addition of punitive damages to Title VII. The Article proposes a three-part framework for analyzing all cases of intentional discrimination and recommends adopting a new scheme for remedial relief under Title VII. The Article then explores the implications of adopting the proposed approach and examines how the proposal fits within the contours of the academic scholarship. The Article concludes by urging that the congressional intent of deterring unlawful discrimination can more properly be achieved through the proposed form of relief.