Before 1991, under the Civil Rights Act of 1964, employees who were subject to discrimination could receive reinstatement, an injunction against the discriminatory behavior, damages for backpay, lost benefits, attorneys’ fees, and litigation costs. The Civil Rights Act of 1991 added the ability to recover nonpecuniary, future pecuniary, and punitive damages. The newer damages are more difficult to quantify, so Congress imposed caps on the size of these additional damages based on the number of people working for the employer. 

In a jury trial, the jury is not informed of the existence of the damage caps. The judge takes the jury’s verdict and award, thanks the jury and sends them home, and then entertains a post-trial motion by the defendant to reduce the award to one of the statutory limits based on an asserted number of employees. The plaintiff can counter that a higher statutory limit applies because the employer actually has more than the asserted number of employees.

The post-trial nature of the dispute over employee numerosity causes problems. First, permitting one party to fulfill the burden through some types of evidence, particularly affidavits, may—in effect though not in form—shift the burden to the other party. A second problem is document dumping, which occurs when one party responds to a request for information by producing every item even remotely related to the request in order to overwhelm the requesting party with an inordinate amount of work spent sifting through the produced information. A document dump in this context can be overwhelming: the litigation involves two years’ worth of documents, and a large number of different documents refer to the number of employees a defendant has. Finally, litigation fatigue gives the judge an incentive to expedite proceedings about employee numerosity on the assumption that the parties have had adequate time for related discovery during an already lengthy litigation process. Section 1981a does not establish which party has the burden of proof for employee numerosity or what types of evidence suffice to meet that burden. No appellate court has spoken unambiguously to the issue, and district courts have used inconsistent and incomplete methods of analysis. This Comment examines the current case law dealing with these questions and—using statutory analysis, analogy to interpretation of similar laws, and policy arguments—proposes a framework to determine who bears the burden of proving the size of an employer and how that burden should be fulfilled.