Darned if You Due Process, Darned if You Don\u27t! Understanding the Due Process Dilemma for Punitive Damages in Title VII Class Actions

When Congress expanded the remedies available to Title VII the plaintiffs in the Civil Rights Act of 1991 to include compensatory and punitive damages, it did not realize that it was creating a minefield for certifying would-be Title VII class actions. The Fifth Circuit thoroughly explored many of the new pitfalls and hazards in its landmark opinion in Allison v. Citgo Petroleum Corp. This article attempts to critically evaluate a recent post-Allison trend whereby Title VII plaintiffs seeking class certification have foregone their claims for compensatory damages while still seeking punitive damages. Plaintiffs, relying on the Supreme Court\u27s recent cases concerning punitive damages, argue that a class-wide claim for punitive damages brought in a mandatory Rule 23(b)(2) class provides the best procedural mechanism for protecting the defendant\u27s due process rights, while assuring that each plaintiff gets his or her fair share of the punitive damages pot. In developing its jurisprudence, as to the constitutional requirements of due process in awarding punitive damages, the Supreme Court showed no intent to thwart the will of Congress to allow Title VII plaintiffs to pursue class claims for punitive damages. Until a decision of the Court clarifies the limits of due process upon Title VII class claims for punitive damages, plaintiffs and defendants in such actions must litigate in a minefield where class certification, and the course of proceedings for any such class actions that are certified, is uncertain at best and arbitrary at worst