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Hastings Law Journal

Authors

Minna J. Kotkin

Abstract

With the maturing of employment law and litigation, the shift away from class action to individual lawsuits, attempts to address more subtle forms of discrimination, and recent Supreme Court decisions vastly restricting systemic actions, Title VII of the Civil Rights Act of 1964 has become essentially a private dispute resolution mechanism. This Article argues that the remedies available under Title VII, however, do not serve either articulated purpose of the statute: to make the victims of impermissible discrimination whole and to discourage employers' discriminatory practices. Back pay awards in individual suits are too small to serve as effective deterrents, and individuals, as compared to class members, are less likely to seek or desire reinstatement or other forms of injunctive relief. This Article examines the legislative history of Title VII and suggests that an early mismatch between private enforcement mechanisms and a public remedial structure laid the groundwork for the current problems. Using empirical evidence and doctrinal analysis, the author attempts to elucidate the shift from the public to the private model of litigation and how that shift was camouflaged by the availability of a claim under 42 U.S.C. section 1981. In addition, the Article suggests legislative changes including and in addition to the proposed Kennedy- Hawkins Civil Rights Act of 1990, which would allow awards of compensatory and punitive damages in Title VII actions. *Finally, the Article recommends a more flexible judicial construction of Title VII, allowing compensation for "loss of employment opportunity" as part of equitable relief.

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