The Uncertain Future of Title VII Class Actions After the Civil Rights Act of 1991

I. INTRODUCTION In recent years, employment discrimination class actions have become well-publicized, high-stakes events.1 Enormous monetary exposures, sensational allegations, and aggressive litigation tactics have brought these cases to prominence in legal circles, the business community, and the public eye. There are signs, however, that this trend could be slowed or even halted by a ten-year-old civil rights law whose implications in this area are just beginning to be felt in the federal courts. Employment discrimination class actions are typically brought under Title VII of the Civil Rights Act of 1964. As initially passed, the 1964 Act provided only equitable relief to victims of employment discrimination. The Civil Rights Act of 1991 expanded these remedies by providing compensatory and punitive damages to victims of intentional discrimination in the workplace. The 1991 Act also bestowed the right to a jury trial on both parties in such cases. Ironically, however, the same law that was designed to provide additional remedies to individuals may have made it more difficult for them to bring class claims. The availability of substantial monetary damages to Title VII plaintiffs may destroy the homogeneity of remedy required to maintain a class action under Federal Rule of Civil Procedure 23(b)(2), a concern that was not present when injunctive relief was the predominant remedy under the statute. The individualized issues of proof and liability raised by the availability of damages may destroy the commonality necessary to maintain a class action under Rule 23(b)(3) and may render other means of adjudication superior to a class action within the meaning of the Rule. And the availability of a jury trial under Title VII may raise Seventh Amendment bars to the bifurcation schemes that were traditionally used to manage class claims of discrimination. As one court has summarized, "Certification of many Title VII cases as class actions may no longer be appropriate, given the expanded damages now made available under Title VII by the Civil Rights Act of 1991."2 This Article will examine the ways in which the Civil Rights Act of 1991 has altered the landscape of Title VII class actions and will analyze the ways in which courts have attempted-with varying degrees of plausibility-to surmount the obstacles to class litigation raised by the 1991 Act. It will also suggest ways in which these obstacles might be avoided in the future, if, indeed, they should be avoided at all. II. TITLE VII AND THE CIVIL RIGHTS ACT OF 1991 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, sex, color, and national origin.3 In the decades since 1964, Title VII cases have become a staple of the federal court system and a prominent means of addressing both real and perceived discrimination on the job.4 As initially passed, Tide VII provided only declaratory, injunctive, and other equitable relief (principally back and front pay) to victims of discrimination.5 This remedial scheme was consistent with those in other fed eral workplace discrimination statutes before and since, which have frequently omitted compensatory or punitive damages provisions.6 The Civil Rights Act of 1991 strengthened Title VII's remedial scheme by authorizing compensatory and punitive damages in cases of intentional employment discrimination.7 While understanding the damages provisions of the 1991 Act is essential to understanding its impact on Title VII class actions, there is no indication in the legislative history that Congress considered the effect these provisions might have on class litigation as opposed to individual claims. The 1991 Act's enhanced damages provisions were designed to compensate victims of discrimination for humiliation, trauma, physical distress, medical expenses, and other economic and noneconomic harms caused by workplace discrimination. …