After Albemarle: Class-Wide Recovery of Back Pay under Title VII

Title VII of the Civil Rights Act of 1964 provides administrative and judicial remedies for victims of discrimination in employment. Employers, engaged in “an industry affecting commerce” and having fifteen or more employees who work at least twenty weeks out of the year, are subject to the statutes strictures. Unions are also subject to the statute if they have fifteen or more members, operate an office or hiring hall, and represent employees. One remedy available under Title VII is an award of back pay from the date of the alleged violation. Back pay may be defined as court-awarded compensation for the loss of earnings resulting from a discriminatory employment practice. Modeled after similar provisions in the National Labor Relations Act, the back pay provision of Title VII, like the entirety of the statute, has a two-fold purpose. First, it provides employers with incentive to comply with the statute. Second, by furnishing the victim of discrimination with compensation for wages lost as a result of the violation, it makes the plaintiff whole. Initially intended as an instrument of compensation, the back pay award has become a formidable weapon in the hands of employee plaintiffs. The metamorphosis has been hastened by recent case law developments. The purpose of this Note is to review these developments, and to determine whether this increase in the award’s potency is desirable