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As indicated above, § 1981A(a) provides for damages
under Title VII, if the complaining party "cannot recover" under
§ 1981. For purposes of the Commission's administrative
enforcement process, the question arises as to the precise
meaning of the "cannot recover" language. The Commission has no
jurisdiction over § 1981, nor will the Commission, during
the investigation and conciliation process, be able to determine
the scope or outcome of a § 1981 action brought by the
charging party. Thus, in processing charges, the Commission will
seek compensatory and punitive damages, as appropriate, whether
or not an individual may have a cause of action under §
1981.
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