Bumping the Status Quo: Actual Relief for Actual Victims under Title VII

Abstract

A critical aspect of Title VII of the Civil Rights Act of 1964 (the Act) was to pressure employers by creating remedies for the victims of employment discrimination. Whole classes of plaintiffs, as well as individuals, could now seek redress in the courts, and the Act directed courts to fashion equitable relief for victims of proven discrimination. Such relief was to remedy the harm done to the individual plaintiff, and also to deter future acts of discrimination by the defendant and other employers. Thus, the remedial side of Title VII kept one eye on the particular needs of the victim and the other on the phenomenon of discrimination itself.This Comment addresses one possible remedy: “bumping.” Discrimination charges often arise after an allegedly unlawful discharge, refusal to hire, or refusal to promote the plaintiff. After a victim proves liability, a court must determine how to compensate for the prohibited discrimination. Courts frequently order the employer to place the victim in the position she would have occupied but for the discrimination. When the employer has already filled the position, reinstatement means that the employer must “bump” the incumbent employee to make room for the discriminatee. Courts currently award bumping only under compelling and narrow circumstances.This Comment argues that bumping should be the rule, not the exception, for Title VII relief. Court-ordered bumping squares with the text, history, and prophylactic purposes of Title VII far better than alternate remedies do. Courts should minimize the inconvenience and unfairness to bumped incumbents by tailoring the bumping order, not by entrenching them in their jobs.Section I examines the development of the rightful place doctrine. Section II argues for the appropriateness of bumping in light of Title VII's text, history, and purposes. Finally, Section III suggests an approach that gives greater scope to bumping as a remedy, and considers how courts can alleviate the hardship to the displaced incumbent.