Backgrounder on Private Attorney's General
A person's right to sue for a violation of his or her civil rights is meaningless without the ability to obtain a lawyer, cover the costs of litigation, or obtain a fair measure of damages. All too often, victims of discrimination are people who have lost their jobs, have little or no income, or otherwise have little access to legal representation. Nonetheless, many cases brought by persons of limited means have had a dramatic impact on the enforcement of, and compliance with, the civil rights laws.
What has Congress done about this?
Since federal government enforcement may falter due to lack of resources or political will, Congress passed the Civil Rights Attorney's Fees Award Act of 1976 to allow for enforcement of civil rights laws to be done by lawyers in private practice. The system of "private attorney's general" permits individuals to enforce their civil rights in court to advance compliance nationally and pursue their right to equal protection under the law. It also entitles successful plaintiffs to recover attorneys’ fees to ensure victims have access to legal representation.
How has the Supreme Court treated this right?
Recent Supreme Court decisions have made it much more difficult for victims of discrimination to recover their attorneys' fees, and other costs, along with a full measure of damages -– even if they win their lawsuit. In addition, current law imposes arbitrary caps on the compensation that victims of gender, disability, or religious discrimination can recover.
How has the Civil Rights Attorney Act been challenged or interpreted since its passage?
In Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Services (2001), the Court decided attorney's fees were no longer recoverable under the Civil Rights Attorney’s Fees Award Act when the plaintiff's claim was the driver or "catalyst" for the defendant's changed behavior. Instead, in order to recover attorney's fees, the plaintiff must win his or her case in court, not merely obtain a favorable settlement out of court. The decision was a radical departure from existing law and practice, and a setback for civil rights enforcement since most lawyers are unlikely to take on cases involving protracted litigation and not be paid for it. Moreover, it frustrates intended effect of having such cases act as catalyst for broader societal change as envisioned by Congress.
Court Goes Soft on Anti-Discriminatory Penalties
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Punitive damages are usually awarded when a plaintiff successfully proves not only that the defendant discriminated against him or her, but also that the defendant's actions were egregious and/or an intentional violation of the civil rights laws.
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In Barnes v. Gorman, the Supreme Court began to undermine this effective enforcement tool by eliminating punitive damages for discrimination against persons with disabilities, no matter how egregious or intentional the discrimination.
Are there other limits on remedies for victims of discrimination?
Yes. The Civil Rights Act of 1991 currently places arbitrary caps on the amount of damages victims of intentional discrimination on the basis of gender, disability, or religion can receive, no matter how large their financial loss or how great their anguish. As a result, some of the worst discriminators do not have to take full responsibility for their actions and victims are deprived of their full remedies under the law.
What did the Supreme Court decided in Circuit City v. Adams?
As an employee of Circuit City, Saint Clair Adams endured constant verbal harassment in the form of sexually lewd comments regarding heterosexual and homosexual acts. When his supervisors finally took his complaints seriously, Adams' co-workers were harassed him even further. Adams then sued Circuit City. The Court decided in Circuit City v. Adams (2001) employers may force employees to give up their rights to sue as a condition of employment in exchange for mandatory binding arbitration, with no requirement or assurance that the dispute will be resolved according to the civil rights laws.
Inadequate remedies by the Court.
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Mandatory binding arbitration is no substitute for the courts when it comes to protecting an individual's civil rights since their proceedings can be and often are done in secret. Plus, arbitration proceedings, compared to judicial proceedings, have fairly lax standards regarding the admissibility of evidence.
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The relief offered in arbitration is generally more limited than that provided by a court. For example, arbitration agreements also do not require employer to stop discriminatory conduct in the future.
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Employees may be required to pay for the arbitration, regardless of the outcome.
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Arbitrators do not have to know or follow the law and do not have to justify their rulings or issue written opinions.
How lawsuits help enforce civil rights laws.
Lawsuits brought by individuals remain the most efficient method of ensuring compliance with civil rights laws. For those seeking to defend their rights through the court system, recovering attorneys' fees, obtain full compensation for their loss, and taking advantage of the deterrent effect of punitive damages is critical. Ensuring that individuals who have proven discrimination are able to obtain a full and effective remedy is a crucial component of ensuring civil rights for all Americans. If the Court continues to employ narrow and regressive interpretations of the law, it will fail to discourage employers from ending their discriminatory practices.
