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STENDER v. LUCKY STORES

January 7, 1992

NANCY J. STENDER, DIANE SKILLSKY, JULIE VALENTINE-DUNN, REBA BARBER-MONEY, IRMA HERNANDEZ, ANITA MARTINEZ and JON GOLD on behalf of themselves and all other similarly situated, Plaintiff, -v.- LUCKY STORES, INC., Defendant.


The opinion of the court was delivered by: MARILYN HALL PATEL

 Plaintiffs have brought this class action against Lucky Stores, Inc. on behalf of Black and female employees working in retail stores within Lucky's Northern California Food Division. Plaintiffs allege discrimination on the basis of race and sex in initial job placement, allocation of work hours, reclassification of part-time employees to full-time positions, and promotions. Claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the California Fair Employment and Housing Act ("FEHA"), Government Code §§ 12900-12996.

 On November 21, 1991 the President signed into law the Civil Rights Act of 1991. The Act "respond[s] 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." Civil Rights Act § 3(4). The Civil Rights Act will affect the law in this case if it applies to cases which were pending at the time of its enactment. Plaintiffs contend that the Act is applicable to their claims while defendant argues that the provisions of the Act should not be applied to this case. The only case which this court has found which analyzes the question of the retroactivity of the 1991 Civil Rights Act in depth is Mojica v. Gannett Co., Inc., No. 90-C-3827 (N.D. Ill. Nov. 27, 1991). *fn1" That court held that the Act was applicable to cases which were pending at the time of its enactment. For the following reasons, this court holds that the Civil Rights Act of 1991 is applicable to plaintiff's claims.

 DISCUSSION

 A. The Plain Language of the Act

 "The starting point for interpretation of a statute 'is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1575, 108 L. Ed. 2d 842 (1990) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980)). The language of the 1991 Civil Rights Act indicates that the Act should apply to cases which were pending at the time of its enactment.

 Section 402 of the 1991 Civil Rights Act provides:

 (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.

 The Ninth Circuit has stated that "the fact that Congress expressed its intention that [a] statute take effect upon enactment is some indication that it believed that application of its provisions was urgent." In re Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984). In Reynolds, the Omnibus Budget Reconciliation Act of 1981 was silent as to whether it should apply to cases which were pending when it was enacted. However, the court weighed the fact that the Act was to be effective upon enactment in favor of the Act's retroactive application.

 More importantly, reading clauses (a) and (b) of section 402 together makes it clear that the 1991 Civil Rights Act applies to cases which were pending at the time of its enactment. Section 402(b) carves out an exception to the Act for the parties in the currently pending Wards Cove case. *fn2" The Supreme Court has stated on many occasions that "no provision [of a statute] should be construed to be entirely redundant." Kungys v. U.S., 485 U.S. 759, 778, 99 L. Ed. 2d 839, 108 S. Ct. 1537 (1988); see also Arcadia v. Ohio Power Co., U.S. , 111 S. Ct. 415, 419 (1990). If the Civil Rights Act only applied prospectively, section 402(b) of the Act would be meaningless. The Supreme Court has also expressed a hesitancy "to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837, 100 L. Ed. 2d 836, 108 S. Ct. 2182 (1988). In this case, the only interpretation of Section 402 that does not make clause (b) meaningless is that the Act is applicable to cases which were pending at the time of its enactment, with the exception of Wards Cove.3

 The language of section 109 of the Act also supports interpreting the Act to apply retroactively. Section 109, which legislatively overrules E.E.O.C. v. Arabian American Oil Co., U.S. , 111 S. Ct. 1227 (1991), provides:

 (c) Application of Amendments. -- The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act.

 Like section 402(b), section 109(c) would be meaningless unless the Civil Rights Act applies to cases which were pending at the time of its enactment. ...


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