Cite as: 527 U. S. 212 (1999)
Kennedy, J., dissenting
The provision authorizes an award of compensatory damages in an "action" brought under § 717; the word "action" is often used to distinguish judicial cases from administrative "proceedings." See New York Gaslight Club, Inc. v. Carey, 447 U. S. 54, 60-62 (1980). Unlike § 717(b), which authorizes administrative proceedings, § 717(c) authorizes "civil action[s]" in court. It is most natural, therefore, to understand the phrase "an action brought by a complaining party under section . . . 717" as a reference to a judicial action under § 717(c) but not to an administrative proceeding under § 717(b). Compensatory awards are authorized under § 1981a(a)(1), moreover, "in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964." Section 706(g) authorizes a "court" to grant equitable relief for violations of Title VII. This provision, as incorporated through § 717(d), applies only in "civil actions" brought under § 717(c); it does not apply in proceedings before the EEOC or any other agency. Section 1981a(a)(1)'s express reference to § 706(g) confirms that compensatory damages are available only in judicial actions.
Other provisions of § 1981a also make clear that the statute authorizes compensatory damages only in judicial actions. Section 1981a(c) provides that "[i]f a complaining party seeks compensatory . . . damages under this section—(1) any party may demand a trial by jury; and (2) the court shall not inform the jury of the limitations [on damages awards] described in subsection (b)(3) of this section." It cannot be disputed that this provision contemplates a jury trial overseen by a court. With due respect to the majority, the provision does not guarantee a jury trial to either party "if a complaining party proceeds to court under § 717(c)," ante, at 221; it provides that either party may obtain a jury trial "[i]f a complaining party seeks compensatory . . . damages," § 1981a(c).
While falling short of embracing the argument as its own, the majority flirts with the contention that allowing agencies rather than juries to award compensatory damages lowers
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