Ignoring the clear constitutional mandate to avoid judicial legislation, the Supreme Court ended this term by essentially amending statutes that attack discrimination. The Court acted to protect employers from punitive damages liability in Kolstad v. American Dental Association, 67 U.S.L.W. 4552 (June 22, 1999), and public schools from liability in all but the most extreme cases in Davis v. Monroe County Board of Education, 119 S. Ct. 1661 (May 24, 1999). (See accompanying article.) While paying lip service to expanding the rights of the aggrieved, the Court dredged safe harbors found nowhere in either of the laws at issue. In Kolstad, the creation of a “good faith” standard is particularly galling given that neither party addressed the question during the litigation, the American Dental Association expressly disavowed that the question was before the Court, and the facts of the case did not present a basis on which to create such a defense.

Why then is the Court’s majority so willing to forget the words of Justice Louis Brandeis that “to supply omissions transcends the judicial function”? The answer is apparent: The majority is unwilling to accept Congress’ considered judgment that punitive damages are necessary to strengthen employee rights and aggressively deter employer violations.

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