402(b) is nothing more than a clear assurance that courts would not apply the 1991 Act to the Wards Cove litigation regardless of how the courts might eventually construe the 1991 Act's applicability to pending cases.") (citing statement of Senator Dole) (footnote omitted)). See also Thompson, 783 F. Supp. at 895 (Section 402(b) of the Act not clear expression of legislative intent regarding retroactivity of the statute; Wards Cove is the only case satisfying Section 402(b)'s prerequisites).
Section 109(c) also does not serve as a clear legislative beacon on the question of the Act's retroactivity. Section 109 was designed specifically to overrule legislatively the case of EEOC v. Arabian Amer. Oil Co., 113 L. Ed. 2d 274, 111 S. Ct. 1227 (1991), "by providing that Title VII applies to U.S. citizens employed in foreign countries." Fray v. The Omaha World Herald Co., 960 F.2d 1370, 1376 (8th Cir. 1992). Section 109(c) may be construed as simply an added assurance that this particular section's provisions will be applicable only to post-enactment conduct regardless of the manner in which courts eventually apply the other provisions of the Act. Mozee, 1992 U.S. App. LEXIS, at *10. I am significantly more persuaded with this construction than with the inference Plaintiff Aiken has proposed, viz., that the prospective command of Section 109(c) implies that other sections of the Act should be applied retroactively.
The language of other sections of the Act also militates against the inference of retroactivity plaintiff has proposed. Thus, Section 102(a) of the Act states that only a "complaining party" may seek compensatory and punitive damages and a jury trial. Pub. L. No. 102-166, § 102(a), 105 Stat. 1072. The term "complaining party" is defined in Section 102(d) to mean "the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII. . . ." Pub. L. No. 102-166, § 102(d), 105 Stat. 1073 (emphasis added). This definition appears to state that only plaintiffs who have not yet brought their lawsuits are entitled to rely upon the Act. Thompson, 783 F. Supp. at 895 (citing Van Meter v. Barr, 778 F. Supp. 83, 85 (D.D.C. 1991)).
In sum, a reading of the language of the Act alone does not indicate whether this statute is to be applied to cases pending at the time of its enactment. Unfortunately, the contradictory and partisan legislative history behind the Act provides no better guidance.
3. Legislative History
There are no legislative committee reports arising from the bills that became the Act. Fray v. The Omaha World Herald Co., 960 F.2d 1370, 1376 (8th Cir. 1992). The issue of the retroactivity of the Act was extensively discussed in the congressional floor debates, however. Id. Senator Danforth, Republican from Missouri, and Senator Kennedy, Democrat from Massachusetts, the primary sponsors of the Act, agreed on every issue but retroactivity. Thompson v. Johnson & Johnson Management Info. Center, 783 F. Supp. 893, 896 (D.N.J. 1992) (citing 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991)). Senator Danforth's Republican colleagues in the Senate agreed with his view that the Act would only be applied prospectively, and the Democratic senators supported the belief of Senator Kennedy that the Act would be applied retroactively. Id. (citing 137 Cong. Rec. S15,485 (Oct. 30, 1991)).
The beliefs of the members of the House of Representatives on the issue of retroactivity were also divided along party lines. Id. (citing 137 Cong. Rec. H9,530 (daily ed. Nov. 7, 1991)). In sum, "[a] clear indication of congressional intent cannot be deciphered from the [Act's] legislative history . . . ." Mozee v. American Commercial Marine Service Co., 932 F.2d 1171, (7th Cir. 1992). See also Long v. Hershey Chocolate, U.S.A., No. 1: CV-91-1689, 1992 U.S. Dist. LEXIS 6583, at *8 (M.D. Pa. May 1, 1992) (legislative history of the Act is both partisan and indeterminate); Thompson, 783 F. Supp. at 896 ("The legislative history of the 1991 Act only clouds the issue[, retroactivity,] before the court."); Kimble v. DPCE, Inc., 784 F. Supp. 250, 251 (E.D. Pa. 1992) ("Given . . . [the conflicting declarations from members of Congress on the issue of retroactivity], I find that the congressional intent is not clear."). I am, therefore, relegated to judicially fashioned rules of construction and other extrinsic evidence in order to resolve the ambiguity of the statute on the question of its retroactivity.
4. Case Law on Retroactivity
a) The Supreme Court
The ambiguity of the Act and its legislative history on the topic of retroactivity does not find a simple resolution in case law. See generally Mozee v. American Commercial Marine Service Co., 963 F.2d 929, (7th Cir. 1992) (discussing the conflicting Supreme Court precedent in area of retroactivity). In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969), the Supreme Court departed from its previously followed general presumption that statutes are to be applied prospectively only unless the statute expressly provides otherwise. The Court in Thorpe stated that the presumption runs the other way. Thorpe, 393 U.S. at 281. The Court did not discuss its departure from a long line of precedent abiding by the prospective presumption. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 845, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990) (Scalia, J. concurring).
The Supreme Court reaffirmed Thorpe in Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), stating that the general rule requires the application of new statutory provisions at the time of a court's decision absent manifest injustice or statutory or legislative direction to the contrary. Id. at 711. Decisions of the Court following Bradley on the issue of retroactivity have not travelled a consistent path. In United States v. Security Indus. Bank, 459 U.S. 70, 74 L. Ed. 2d 235, 103 S. Ct. 407 (1982), the Court stated that "the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student." Id. at 79.
Subsequently, in Bennett v. New Jersey, 470 U.S. 632, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985), the Supreme Court applied the Thorpe-Bradley presumption of retroactivity, but held that the particular facts at bar were excluded from this presumption. Id. at 638-40.
In 1988, the Court changed its course. In Bowen v. Georgetown University Hosp., 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), the Supreme Court reverted to the general rule that courts should generally assume that statutes are to be applied prospectively. The Court, in a unanimous decision, stated: "Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208. A year later, the Court mentioned Thorpe in passing, because it provided authority for the concession of the parties that certain recently passed regulations applied to the case. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 661, 103 L. Ed. 2d 685, 109 S. Ct. 1384 n.1 (1989).
The Court acknowledged the murkiness of its jurisprudence in this area in Kaiser. There, the Court in its majority opinion recognized that there was an "apparent tension" between the Thorpe-Bradley line of cases and the cases following Bowen. Kaiser, 494 U.S. at 837. The majority in Kaiser did not attempt to reconcile this tension, however, as it found that the statute at issue expressed a clear intent not to be applied retroactively. Id. at 837-38.
In a concurring opinion in Kaiser, Justice Scalia asserted that the Court should reconcile the divergent lines of precedent by overruling the Thorpe-Bradley line. Id. at 841. Justice Scalia reasoned that the Bowen presumption of prospective application is a doctrine supported by history and tradition. Id. at 855. He explained that the presumption of prospective application stems from the notion that parties should only be held accountable for the laws in existence at the time of their conduct. Id. Courts addressing the question of the retroactivity of the Act have found the opinion of Justice Scalia in Kaiser compelling. See, e.g., Kimble v. DPCE, Inc., 784 F. Supp. 250, 252 n.2 (E.D. Pa. 1992); Futch v. Stone, 782 F. Supp. 284, 286 n.1 (M.D. Pa. 1992).
b) The Court of Appeals for the Third Circuit
The Court of Appeals for the Third Circuit has not clearly adopted one of the two lines of Supreme Court retroactivity cases. See generally Tyree v. Riley, 783 F. Supp. 877, 883-84 (D.N.J. 1992) (reviewing Third Circuit retroactivity case law). In Davis v. Omitowoju, 883 F.2d 1155 (3d Cir. 1989), the court of appeals, following the Supreme Court decision of United States v. Security Indus. Bank, 459 U.S. 70, 74 L. Ed. 2d 235, 103 S. Ct. 407 (1982), held that the district court had not erred in denying retroactive application of an amended statute setting a cap on damages in medical malpractice verdicts. Davis, 883 F.2d at 1170-71. Commenting on the general prospective presumption relied upon in Security Indus. Bank, the Davis court stated that "this rule 'has generally been applied only when application of the new law would affect rights or obligations existing prior to the change in law.'" Id. at 1170 (quoting Bonjorno v. Kaiser Aluminum & Chem. Corp., 865 F.2d 566 (3d Cir. 1989), rev'd in part and aff'd in part, 494 U.S. 827, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990)).
In United States v. Jacobs, 919 F.2d 10 (3d Cir. 1990), cert. denied, 113 L. Ed. 2d 265, 111 S. Ct. 1333 (1991), the Third Circuit followed the Thorpe-Bradley line of cases. In Jacobs, at the time the defendant committed her offense, it was classified as a Class B felony. Id. at 11. However, at the time of her sentencing, the offense was classified as a Class C felony as a result of an amendment to 18 U.S.C. § 3359(a). The district court determined that her offense was a Class C felony and sentenced her accordingly. Consequently, the defendant was not eligible for probation. Id. The court cited the Thorpe-Bradley rule regarding retroactivity, but actually relied upon the so-called general saving statute, 1 U.S.C. § 9, to apply the classification amendment retroactively. Id. at 11-12.
Further, in U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914 (3d Cir.), cert. denied, 112 L. Ed. 2d 33, 111 S. Ct. 58 (1990), the Third Circuit, citing the Thorpe-Bradley presumption, retroactively applied an amendment to the Lanham Act after finding no threat of manifest injustice from such an application. Id. at 922 n.9 (citation omitted). In addition, in Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir. 1989), the court retroactively applied amendments in the federal removal statute. Id. at 65. The Third Circuit relied upon the Thorpe-Bradley line of cases, but did not discuss the reason for this reliance, or the extent to which a manifest injustice would or would not result from a retroactive application of the new statute.
Although the Third Circuit has relied upon the Thorpe-Bradley general presumption of retroactivity, it made clear in the Davis opinion that a new statute is not to be applied retroactively if "application of the new law would effect rights and obligations existing prior to the change in law." This rule is in harmony with the manifest injustice exception to the Thorpe-Bradley presumption, because if a new statute affects the rights and obligations of a party, a manifest injustice would likely result from the retroactive application of the new law. Tyree, 783 F. Supp. at 884. At least two recent decisions from district courts within the Third Circuit have determined that the Davis rule requires a conclusion that amendments made by the Act should not be applied retroactively. See Thompson v. Johnson & Johnson Management Info. Center, 783 F. Supp. 893, 897 (D.N.J. 1992) ("The Third Circuit's opinion in Davis leads this court to find against retroactive application."); Kimble v. DPCE, Inc., 784 F. Supp. 250, 252 (E.D. Pa. 1992) ("I believe Davis mandates that the presumption in favor of prospectivity applies to the present case.").
I also find that the admonition of Davis, holding that a new statute should not be applied retroactively if such an application would impact pre-enactment rights and obligations, precludes a retroactive application of Sections 101 and 102 of the Act. The Davis rule finds its root in the venerable legal doctrine known as the "rule of law." As explained by Judge Posner,
the idea that the law should coniine [sic] its prohibitions and regulations to future conduct, so that the persons subject to the law can conform their conduct to it and thus avoid being punished, whether criminally or civilly, for conduct that they had no reason to think unlawful, is a component of the traditional concept of the 'rule of law.' Except as codified in constitutional provisions (retroactive imposition of criminal penalties, for example, is forbidden by the ex post facto clause of the Constitution), the traditional conception is neither immutable nor absolute. But we think that conformity to it is the right policy for courts to follow in default of other guidance.
Luddington v. Indiana Bell Tel. Co., 966 F.2d 225, (7th Cir. 1992) (reaffirming May 1992 Mozee decision of the Seventh Circuit concluding that Act is not to be applied retroactively). Section 101 of the Act amends Section 1981 by legislatively overruling Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). As discussed above, under Patterson and its progeny, allegedly discriminatory conduct which occurred after the formation of an employment contract and which did not interfere with the right to enforce established contractual obligations did not violate Section 1981. For instance, during the Patterson era, claims of racially motivated or constructive discharge were not cognizable under Section 1981, because job termination, like on-the-job harassment, is conduct occurring after the formation of an employment contract. See, e.g., Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 110, 112 S. Ct. 940 (1992). Section 101 of the Act, 42 U.S.C.A. § 1981(b), brings such post-contract formation conduct within the ambit of Section 1981, and thus affects the rights and obligations of the parties as they existed during the reign of Patterson.
Section 102 of the Act, 42 U.S.C.A. § 1981a, also affects the pre-enactment rights and obligations of the parties. As noted above, Section 102 greatly expands the legal relief available under the Act by authorizing courts to award compensatory and punitive damages and a trial by jury. Prior to the Act, relief for a violation of Title VII was limited to an award of backpay and other equitable relief that a court deemed appropriate. See, e.g., Protos v. Volkswagen of America, Inc., 797 F.2d 129, 138 (3d Cir.), cert. denied, 479 U.S. 972, 93 L. Ed. 2d 418, 107 S. Ct. 474 (1986); Galeone v. American Packaging Corp., 764 F. Supp. 349, 350-51 (E.D. Pa. 1991). Although the right to a jury trial now afforded by Section 102 may arguably constitute a non-prejudicial change in the pre-enactment law of Title VII, the same cannot be said of this provision's authorization of compensatory and punitive damages.
As explained in Luddington, changes in available remedies can have a tremendous impact on conduct outside the courtroom. Luddington, 966 F.2d 225. The degree of caution and diligence that individuals and firms undertake to avoid being subject to either civil or criminal liability is largely attributable to the severity of the sanction authorized. Id. When the sanction or available remedies are increased, individuals and entities are entitled to a chance to adjust their level of care in view of the new environment created by the change. Id.
Other courts addressing the retroactivity of Section 102 have also found that the amendments made by this section impact the prior rights and obligations of the parties. See, e.g., Crumley v. Delaware State College, Nos. 90-429, 90-711, 91-89, 92-25, 797 F. Supp. 341, (D. Del. 1992) (retroactive application of new damage provisions of Act does not create new cause of action, but does potentially subject a defendant to substantially more in damages; consequently, new damages authorized by Section 102 are substantive rather than procedural in nature) (citing Thomas v. Frank, 791 F.Supp. 470 (D.N.J. 1992)); Long v. Hershey Chocolate, U.S.A., No. 1: CV-91-1689, 1992 U.S. Dist. LEXIS 6583, at *14-*15 (M.D. Pa. May 1, 1992) (Section 102 constitutes a "'major substantive provision. With these new sanctions necessarily comes the requirement that courts consider different and dispositive issues.'") (quoting Tyree v. Riley, 783 F. Supp. 877, 890-91 (D.N.J. 1992)).
Accordingly, I conclude that an application of the Third Circuit's Davis opinion prevents a retroactive application of Sections 101 and 102 of the Act.
5. The EEOC Policy Statement Regarding the Act
On December 27, 1991, the Equal Employment Opportunity Commission ("EEOC") issued a policy statement addressing the issue of whether the compensatory and punitive damages provisions of Section 102 of the Act should be applied to claims based upon pre-enactment conduct. See Defendant's Response, Exhibit E, at 1. After concluding that the language and legislative history of the Act was inconclusive, id. at 3-4, the EEOC examined case law. The agency reviewed the two lines of conflicting Supreme Court cases on the topic of the retroactivity of new statutes and determined that the general presumption of prospective application followed in Bowen v. Georgetown University Hosp., 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), was the better view, as it represented the Supreme Court's more recent holding on the subject. Defendant's Response, Exhibit E, EEOC Policy Statement at 7. As a result, the EEOC concluded that it would "not seek damages in charges filed prior to enactment of the Act, or in post-Act charges that challenge pre-Act conduct." Several courts have cited the EEOC report as authority supporting a finding that the Act is to be applied prospectively only. See Vogel v. The City of Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992); Tyree v. Riley, 783 F. Supp. 877, 888-89 (D.N.J. 1992). These cases have essentially relied upon the deference traditionally shown to administrative agencies in their interpretation of statutes and rules which they administer. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), reh'g denied, 468 U.S. 1227, 82 L. Ed. 2d 921, 105 S. Ct. 28 (1984) ("Considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer . . . .").
Although I take comfort in the result the EEOC reached in its December 27, 1991 policy statement, I respectfully disagree with the opinions which have accorded this statement great weight in deciding that the Act should not be retroactively applied. The Supreme Court specifically addressed the degree of deference which should be afforded guidelines issued by the EEOC in E.E.O.C. v. Arabian Amer. Oil Co., 113 L. Ed. 2d 274, 111 S. Ct. 1227 (1991). There, the Court stated:
In General Electric Co. v. Gilbert, 429 U.S. 125, 140-146, 97 S. Ct. 401, 410-413, 50 L. Ed. 2d 343 (1976), we addressed the proper deference to be afforded the EEOC's guidelines. Recognizing that 'Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations,' we held that the level of deference afforded "'will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id., at 141, 142, 97 S. Ct., at 410, 411 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124 (1944)).