No Harm, No Foul?: An Argument for theAllowance of Punitive Damages WithoutCompensatory Damages Under42 U.S.C. § 1981a

I. Introduction The 1991 Civil Rights Act dramatically changed the recovery system for victims of sex discrimination in the workplace.1 Specifically, sec 1981a2 of the amendments granted a statutory right of compensatory and punitive damages to employees who are victims of intentional sex discrimination.3 This right to compensatory and punitive damages represents a significant departure from the remedies previously available under Title VII, which limited recovery to remedies such as back-pay and an injunction for reinstatement.4 Although sec 1981a incorporates legal remedies into intentional sex discrimination suits, Congress imposed caps on the amount of damages available in these suits.5 These caps have created a federal remedy for intentional sex discrimination that lies between a fully compensatory remedy under tort law and the limited remedies that existed under Title VII prior to sec 1981a's enactment.6 Partly for this reason, courts are divided over whether a plaintiff can recover punitive damages without proving compensatory damages under sec 1981a.7 Traditionally, common law has dictated that a plaintiff cannot recover punitive damages without compensatory damages.8 Moreover, in light of due process concerns, punitive damages are becoming more controversial.9 However, as a statutory remedy, the damages provision under 1981 a contains certain restrictions that may eliminate the need to apply these common law and due process limitations to punitive damages under sec 1981a.10 Furthermore, the Supreme Court has articulated a standard for awarding punitive damages under sec 1981a that must enter into this mix.11 These facts, along with the high number of employment discrimination cases facing courts today, indicate a likelihood of further division among the circuit courts over whether punitive damages may stand without compensatory damages under sec 1981a.12 It has been argued that a plaintiff should be entitled to recover punitive damages without compensatory damages under the analogy that a plaintiff suing under sec 1983 13 for a civil rights deprivation normally may recover punitive damages without compensatory damages.14 Both statutes address civil rights violations; however, significant differences between sec 1981a and sec 1983 make the analogy inapplicable.15 As such, the argument for punitive damages without compensatory damages under sec 1981a16 stands independent of a 1983 analysis.17 This argument can be made through an examination of common restrictions on punitive damages and their application to sec 1981 a as well as through an analysis of Kolstad v. American Dental Ass'n,18 in which the Supreme Court outlined the standard for awarding punitive damages under sec 1981a.19 This Note argues that a plaintiff may recover punitive damages without compensatory damages under sec 1981a. First, this Note briefly examines federal remedies historically available for employment discrimination. …