be applied prospectively only, the presumption of retroactivity remains. Still to be determined is the question of whether it would be a manifest injustice to apply the statute retroactively.
In determining whether retroactive application would be a manifest injustice, three factors are to be considered: "1) the nature and identity of the parties; 2) the nature of the rights affected; and 3) the impact of the change in law on pre-existing rights." Wright, 942 F.2d at 1096 (quoting In re Busick, 831 F.2d 745, 748 (7th Cir. 1987)). The first factor concerns whether the matter is one between private parties only or one that involves a public entity or public concern. If only involving private concerns, then a court should be more reticent in applying a new statute retroactively if there is an undue impact on the parties' previously existing rights or relationship. That the circumstances involve private parties only, though, does not preclude retroactive enforcement. See, e.g., Busick, 831 F.2d 745 at 748 at 748-49 . Here, the case is between private parties only. However, the 1991 Act, like the Civil Rights Act of 1964, is intended to promote equality in our nation and provide a remedy for discrimination. This is a public concern of great importance in our society. While the present case is not one where the plaintiff is acting in the role of a "private attorney general," see Bradley, 416 U.S. at 719, the public component of the dispute between the parties cannot be ignored. The 1991 Act itself generated great public interest and substantial political dispute. While the private nature of this particular litigation is recognized, it is also recognized that this case and the legislation under consideration involve matters of substantial public concern.
The second factor to consider is the nature of the rights involved. The question here is whether application of the new law "would infringe upon or deprive a person of a right that had matured or become unconditional." Bradley, 416 U.S. at 720. The parties do not have a substantial right to a bench trial, whereas the right to a jury trial, even if statutorily granted, is entitled to substantial protection. See Fed. R. Civ. P. 38(a). The second factor does not go against applying the provisions for a jury trial retroactively.
Scarboro v. First American National Bank of Nashville, 619 F.2d 621, 622 (6th Cir.) (per curiam), cert. denied, 449 U.S. 1014, 66 L. Ed. 2d 472 , 101 S. Ct. 572 (1980) (amendment to Age Discrimination in Employment Act providing for jury trial applies retroactively).
That the holding of Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132 , 109 S. Ct. 2363 (1989), has been effectively superseded as to its limitation of § 1981 actions also does not affect a matured right of defendant. The discriminatory conduct alleged by plaintiff began prior to the holding in Patterson. Therefore, at the time the conduct began, the prevailing law was consistent with the 1991 Act's amendments to § 1981. Also, from the beginning of defendant's alleged conduct until the passage of the 1991 Act, the conduct alleged was always prohibited by Title VII even if not by § 1981 to the extent Patterson was in force. Therefore, the change in the law did not affect the rights and obligations of the parties. See Bradley, 416 U.S. at 721; Hicks v. Resolution Trust Corp., 738 F. Supp. 279, 286 (N.D. Ill. 1990). What changed is plaintiff's ability to obtain additional damages for her injuries, though her Equal Pay Act claim already permitted her to obtain liquidated damages. The increased potential for damages, however, is not likely to have affected the conduct of the parties in committing any acts of discrimination that may have occurred. See Hicks, 738 F. Supp. at 286. While it is possible that prior knowledge of the full potential for liability might have affected the parties' settlement posture, no such argument is presented by defendant so it need not be considered whether such an effect could be a manifest injustice.
The third factor is the impact of the change in the law upon existing rights. Stated another way, this factor concerns "the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard." Bradley, 416 U.S. at 720. As previously discussed, the law was already clear that the alleged conduct of defendant was prohibited. Given this fact and that there was no apparent effect on conduct, this factor does not militate against applying the statute retroactively. Cf. id. at 721; Hicks, 738 F. Supp. at 286.
For the foregoing reasons, it is determined that retroactive application of the 1991 Act would not be a manifest injustice.
IT IS THEREFORE ORDERED that:
(1) Plaintiff's motion to amend her complaint is granted. An amended complaint shall be filed by December 2, 1991. That amended complaint may demand a jury trial and pray for compensatory and punitive damages consistent with the provisions of the Civil Rights Act of 1991.
(2) The Civil Rights Act of 1991 is applicable to plaintiff's claims. At the commencement of trial on December 2, 1991, each party shall present the trial judge with an original and one copy of her or its amended proposed jury instructions consistent with this holding.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: NOVEMBER 27, 1991