Under the Civil Rights Act of 1991, the plaintiff in an employment discrimination case who alleges intentional discrimination may recover punitive damages if she demonstrates that her employer engaged in the discriminatory practice with "malice" or "reckless indifference" to federally protected rights. To prove a case of disparate treatment under Title VII, the plaintiff bears the burden of persuading the trier of fact that her employer intended to discriminate against her. In other words, to be liable in a disparate treatment case, the employer has to specifically intend to treat the plaintiff differently based, for example, on her sex. If the defendant is found liable in such a case, the plaintiff may recover punitive damages by showing recklessness or malice on the part of the defendant. Recklessness requires a less culpable state of mind than specific intent to discriminate, and malice includes both recklessness and specific intent.
46 Fla. L. Rev. 521 (1994).