Ending Discriminatory Damages

69 Pages Posted: 15 Aug 2012 Last revised: 11 Dec 2012

Craig Robert Senn

Loyola University New Orleans College of Law

Date Written: March 5, 2012

Abstract

Anti-discrimination laws that discriminate? It sounds crazy. Yet, the different remedial models of our federal employment discrimination laws can (and often do) yield discriminatory damages.

Title VII of the Civil Rights Act of 1964, as amended, and the Americans With Disabilities Act of 1990 (ADA) share one model: victims of intentional sex-, race-, religion-, national origin-, color-, or disability-based discrimination may recover monetary damages for lost wages (or back pay), plus “compensatory and punitive damages” subject to statutory caps ranging from $50,000 to $300,000 (depending on the number of the employer’s employees). In contrast, the Age Discrimination in Employment Act of 1967 (ADEA) uses a different model: victims of intentional age-based discrimination may recover monetary damages for lost wages (or back pay), plus “liquidated damages” that equal, dollar-for-dollar, the lost wage amount.

While innocent in appearance, these different models create an ironic phenomenon: the “Discriminatory Damages Paradox,” whereby victims with certain federally protected characteristics can be (and often are) monetarily favored over those with other federally protected characteristics. In some Paradox situations, a prevailing Title VII or ADA plaintiff can recover substantially more monetary damages than an otherwise identically situated ADEA plaintiff. In other Paradox situations, the opposite is true.

This article proposes a “Uniform Title VII/ADA-Based Damages Model” to solve this Discriminatory Damages Paradox. This uniform model is warranted for three reasons: (1) it embraces Congress’s philosophy of promoting reasonably comparable and consistent (rather than unfairly disparate) monetary damages for victims of intent-based discrimination, as evidenced by the Civil Rights Act of 1991; (2) it better serves the ADEA’s purposes and interests by (a) more effectively promoting its remedial purpose of deterrence and (b) expanding its remedial purposes to include harm compensation and claim incentive; and (3) it serves to fully advance federal employment discrimination policy.

Keywords: Damages, Remedies, Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Punitive Damages, Compensatory Damages, Liquidated Damages

JEL Classification: J70, J71, J78

Suggested Citation

Senn, Craig Robert, Ending Discriminatory Damages (March 5, 2012). 64 Alabama Law Review 187 (2012); Loyola University New Orleans College of Law Research Paper No. 2012-26. Available at SSRN: https://ssrn.com/abstract=2129312

Craig Robert Senn (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

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