concurring:
The interpretative problem in this case starts with the interplay of the words “intentional discrimination,” which suffices for compensatory damages, 42 U.S.C. § 1981a(a), and “reckless indifference,” which along with the alternative “malice” is a prerequisite for punitive damages, id. § 1981a(b)(l). The judicial mind naturally tends to view these words against a legal background, here a Supreme Court decision defining “malice” to include recklessness, Smith v. Wade, 461 U.S. 30, 39 & n. 8, 103 S.Ct. 1625, 1631 & n. 8, 75 L.Ed.2d 632 (1983); and the common legal notion, as expressed in the Model Penal Code § 2.02(5), that “[w]hen recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly.” If one fed this data into a parsing machine, it would answer- — § 1981a(a)’s standard for compensatory damages subsumes § 1981a(b)(l)’s standard for punitive damages, or whenever there is intentional discrimination there is at least reckless disregard. Yet one cannot help wondering why Congress would have enacted two separate provisions when one would have sufficed, and why all employers liable under § 1981a(a) should be swept within § 1981a(b)(l). Those who voted for this legislation surely must have believed that they were voting for a two-tiered damages system, as the majority opinion describes it. If the dissent is nevertheless correct in its interpretation, the punitive damages subsection must be the product of a very clever draftsman, someone who wanted to convey the appearance of limiting punitive damages to exceptional cases, while hoping that courts would draw upon other legal sources to find the limitation an illusion. Despite the dissent’s linguistic points, the majority opinion convinces me that Congress wanted the subsections kept separate, that it intended punitive damages to be reserved for only the worst cases. The structure of § 1981a certainly points in that direction, as do the historical materials, the policies promoted by punitive damages and the other factors skillfully marshalled in the majority opinion. Although the matter is exceedingly close, I also believe the language of § 1981a(b)(l) will bear the meaning the majority opinion ascribes to it. I therefore concur.