least of all three or four years ago when the alleged activities occurred. Applying such a change to the parties in this case would create substantial liabilities that could not have been anticipated in 1988 and 1989, even by the most visionary. With such a change, prospective application is required.
Consequently, all three factors in the Bradley analysis for the manifest injustice exception support a conclusion that the court should apply the law prospectively. The parties are an individual and a private corporation although the issue is, in a general sense, of national concern. Congress, in passing the new legislation, created real and substantial new rights for plaintiff and concurrently real and substantial new obligations and liabilities for defendants. The Act as such is not merely remedial. Therefore, it would be manifestly unjust and in contradiction with both the facts and intent of Bradley to apply this law retroactively. As a result, both Bradley exceptions, legislative history and manifest injustice, are met here and prospective application of the Act is required. So too does Georgetown Hospital mandate prospective application.
IV. Other Case law
The case of Mojica v. Gannett Co., 779 F. Supp. 94 (N.D.Ill. 1991), reached a different conclusion using the Bradley analysis.
In reaching its decision, the distinguished judge emphasized that "the prevailing law was consistent with the 1991 Act's amendments to § 1981." Id. at 98-99. Thus, the court held that the 1991 Act did nothing to change the rights and liabilities of the parties in that case. Id. at 98. Mojica, therefore, is very fact-specific regarding the Act; in § 1981 cases the Act is retroactive at least in part because there was no perceived change in the law. Id. at 99. Yet the court did not have the benefit of the EEOC's policy statement which may have altered the judge's analysis as their decision, as the body charged with enforcement of the Act, is entitled to deference. However, as plaintiff here attempts to invoke a larger portion of the Act, this court must take a broader perspective than the Mojica court was permitted to. To the extent this case speaks to the same issues as Mojica, the court disagrees with those conclusions. See Graham v. Bodine Elec. Co., 782 F. Supp. 74 (N.D.Ill. 1992); Bristow v. Drake Street, Inc., No. 87 C 4412, 1992 WL 14262, 1992 U.S. Dist. LEXIS 499 (N.D.Ill. Jan. 21, 1992) (both holding Act, in some part, is to be applied retroactively). See also Cary v. CHA, No. 87 C 6998, 1991 WL 274443, 1991 U.S. Dist. LEXIS 18543 (N.D.Ill. Dec. 16, 1991); EEOC v. Elgin Teachers Ass'n, 780 F. Supp. 1195 (N.D. Ill. 1991) (both applying provisions retroactively without specifically holding Act retroactive).
Dozens of other district courts have considered the subject and are evenly split on the question. Van Meter v. Barr, 778 F. Supp. 83 (D.D.C. 1991) was one of the first to hold that the law should be given prospective effect and overruled plaintiff's objections that the law was only a procedural nicety and therefore could easily be applied retroactively. Id. at 84; accord Johnson v. Rice, Civ. A. No. 2:85- CV-1318, 1992 WL 16284, 1992 U.S. Dist. LEXIS 830 (S.D. Ohio Jan. 24, 1992). Other examples of cases concluding the Act should have prospective effect are McLaughlin v. New York, 784 F. Supp. 961, 1992 WL 43452, 1992 U.S. Dist. LEXIS 2552 (N.D.N.Y. March 5, 1992); Tusa v. Stanley Dry Cleaners, No. 91-2116- V, 1992 U.S. Dist LEXIS 2881 (D.Kan. Feb. 25, 1992); Conerly v. CVN Cos., Civ. 785 F. Supp. 810 (D. Minn. 1992); Patterson v. McLean Credit Union, C-84-73-WS, 1992 WL 33805, 1992 U.S. Dist. LEXIS 1989 (M.D.N.C. Feb. 18, 1992); Thompson v. Johnson & Johnson Mngt. Info. Ctr., No. 86-319, 1992 WL 29127, 1992 U.S. Dist. LEXIS 1930 (D.N.J. Feb. 18, 1992); Frazier v. Southeastern Pa. Transp. Auth., Civ. Action No. 84-2950, 1992 WL 30510, 1992 U.S. Dist. LEXIS 1829 (E.D.Pa. Feb. 12, 1992) (unpublished opinion); Khandelwal v. Compuadd Corp., 780 F. Supp. 1077 (E.D.Va. 1992). Cf. Hameister v. Harley-Davidson, Inc., 785 F. Supp. 113 (E.D.Wis. 1992) (citing McKnight v. Merrill Lynch, No. 90-C-597 (E.D.Wis. Jan. 9, 1992) (holding damages portion of Act not retroactive)). The court is not without support for its conclusion that the law should be applied prospectively.
In sum, this court holds that the Civil Rights Act of 1991 applies prospectively. Therefore, for the foregoing reasons, plaintiff's amended complaint is dismissed and leave is granted to plaintiff to file a complaint consistent with this order if he can do so in good faith.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court