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November 27, 1991

IRENE MOJICA, Plaintiff,


The opinion of the court was delivered by: WILLIAM T. HART

Irene Mojica filed this action against defendant Gannett Company, Inc. in July 1990. Plaintiff is employed as the overnight (1:00 a.m. to 5:00 am.) disc jockey for WGCI-FM, a Chicago radio station owned by defendant. She alleges discrimination because she is female and Hispanic. Her claims are that she receives a lower salary and less favorable assignments than male and non-Hispanic disc jockeys and that she has been sexually harassed by certain station employees. Her complaint contains six counts: (1) sex discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206 et seq.; (2) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (3) national origin discrimination in violation of Title VII; (4) national origin discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (5) retaliation in violation of § 1981; and (6) retaliation in violation of Title VII. Plaintiff seeks damages for the period 1988 through 1991 and injunctive relief. This case is presently set for trial before a visiting judge on December 2, 1991.

 Anticipating that the Civil Rights Act of 1991 (the "1991 Act") would soon be passed, on November 12, 1991 plaintiff filed a motion to amend her complaint. That motion was presented in court on November 25, by which time the 1991 Act had been signed into law, the president having signed it on November 21. Plaintiff seeks to amend her complaint to add compensatory damages, punitive damages, and a jury demand for her Title VII claims. She also moves to strike any motion of defendant seeking to limit her § 1981 claims or to keep evidence of sexual harassment from the jury. The parties are in agreement as to how application of the 1991 Act would affect this case. The parties, however, disagree as to whether the 1991 Act applies to the present case. Plaintiff contends that the 1991 Act applies to all cases pending at the time the Act was passed and to all future cases. Defendant contends it only applies to conduct occurring on or after the date on which the 1991 Act was passed.

 Section 3 of the 1991 Act states:

 The purposes of this Act are--

 (1) to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace;

 (2) to codify the concepts of "business necessity" and "job related" enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158 , 91 S. Ct. 849 (1971) and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733 , 109 S. Ct. 2115 (1989);

 (3) to confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

 (4) to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protections to victims of discrimination.

 Section 22 of the 1991 Act sets forth the effective date of the Act:

 (a) IN GENERAL.--Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.

 (b) CERTAIN DISPARATE IMPACT CASES.--Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975 and for which an initial decision was rendered after October 30, 1983.

 Senator Danforth, one of the cosponsors of the legislation, at one time stated on the floor of the Senate that the new legislation was to apply prospectively only. Senator Kennedy expressed a disagreement with that view. Ultimately, however, Senator Danforth expressed the view that there was no clear legislative history, only various and inconsistent statements from a number of senators and representatives and that any court seeking to interpret the statute should look to the language of the statute, not the statements of the legislators, and apply appropriate rules of construction. See 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991); Id. S15,325 (daily ed. Oct. 29, 1991). The parties agree that the legislative debates are inconclusive and that the court should construe the language of the statute based on case precedent.

 A recent Supreme Court case acknowledges that there are inconsistent precedents regarding what to do when language and legislative history are inconclusive on the question of whether a statute is to be applied retroactively. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1576-77, 108 L. Ed. 2d 842 (1990). One line of cases indicates that retroactivity is disfavored and that congressional enactments and administrative rules will not be construed to have a retroactive effect unless their language requires otherwise. See Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988) (agency did not have congressional authority to promulgate retroactive cost rules). Another line of cases indicates that statutes going into effect during the pendency of a case are presumed to be applied in that case unless there is clear congressional intent to the contrary or application of the law would result in manifest injustice to one of the parties. See Bradley v. School Board of City of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476 , 94 S. Ct. 2006 (1974) (intervening statute applies unless a contrary intention appears or the application would result in manifest injustice); Thorpe v. Durham Housing Authority, 393 U.S. 268, 21 L. Ed. 2d 474 , 89 S. Ct. 518 (1969). In Bonjorno, it was unnecessary to resolve any inconsistency in the cases because a clear ...

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