Pollard v. E. I. Du Pont De Nemours & Co.

Docket Number00-763.
Decision Date04 June 2001
PartiesPOLLARD v. E. I. DU PONT DE NEMOURS & CO.
CourtU.S. Supreme Court

Kathleen L. Caldwell argued the cause for petitioner. With her on the briefs was Eric Schnapper.

Matthew D. Roberts argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Acting Solicitor General Underwood, Acting Assistant Attorney General Yeomans, Austin C. Schlick, Dennis J. Dimsey, Jennifer Levin, Gwendolyn Young Reams, Phillip B. Sklover, Carolyn L. Wheeler, and Caren I. Friedman.

Raymond Michael Ripple argued the cause for respondent. With him on the brief was Donna L. Goodman.*

JUSTICE THOMAS delivered the opinion of the Court.

This case presents the question whether a front pay award is an element of compensatory damages under the Civil Rights Act of 1991. We conclude that it is not.

I

Petitioner Sharon Pollard sued her former employer, E. I. du Pont de Nemours and Company (DuPont), alleging that she had been subjected to a hostile work environment based on her sex, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. After a trial, the District Court found that Pollard was subjected to co-worker sexual harassment of which her supervisors were aware. The District Court further found that the harassment resulted in a medical leave of absence from her job for psychological assistance and her eventual dismissal for refusing to return to the same hostile work environment. The court awarded Pollard $107,364 in backpay and benefits, $252,997 in attorney's fees, and, as relevant here, $300,000 in compensatory damages—the maximum permitted under the statutory cap for such damages in 42 U. S. C. § 1981a(b)(3). The Court of Appeals affirmed, concluding that the record demonstrated that DuPont employees engaged in flagrant discrimination based on sex and that DuPont managers and supervisors did not take adequate steps to stop it. 213 F. 3d 933 (CA6 2000).

The issue presented for review here is whether front pay constitutes an element of "compensatory damages" under 42 U. S. C. § 1981a and thus is subject to the statutory damages cap imposed by that section. Although courts have defined "front pay" in numerous ways, front pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. For instance, when an appropriate position for the plaintiff is not immediately available without displacing an incumbent employee, courts have ordered reinstatement upon the opening of such a position and have ordered front pay to be paid until reinstatement occurs. See, e. g., Walsdorf v. Board of Comm'rs, 857 F. 2d 1047, 1053-1054 (CA5 1988); King v. Staley, 849 F. 2d 1143, 1145 (CA8 1988). In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement. See, e. g., Gotthardt v. National B. B. Passenger Corp., 191 F. 3d 1148, 1156 (CA9 1999); Fitzgerald v. Sirloin Stockade, Inc., 624 F. 2d 945, 957 (CA10 1980). For the purposes of this opinion, it is not necessary for us to explain when front pay is an appropriate remedy. The question before us is only whether front pay, if found to be appropriate, is an element of compensatory damages under the Civil Rights Act of 1991 and thus subject to the Act's statutory cap on such damages.

Here, the District Court observed that "the $300,000.00 award is, in fact, insufficient to compensate plaintiff," 16 F. Supp. 2d 913, 924, n. 19 (WD Tenn. 1998), but it stated that it was bound by the Sixth Circuit's decision in Hudson v. Reno, 130 F. 3d 1193 (1997), which held that front pay was subject to the cap. On appeal, Pollard argued that Hudson was wrongly decided because front pay is not an element of compensatory damages, but rather a replacement for the remedy of reinstatement in situations in which reinstatement would be inappropriate. She also argued that § 1981a, by its very terms, explicitly excludes from the statutory cap remedies that traditionally were available under Title VII, which she argued included front pay. The Court of Appeals agreed with Pollard's arguments but considered itself bound by Hudson. The Sixth Circuit declined to rehear the case en banc.

The Sixth Circuit's decision in Hudson was one of the first appellate opinions to decide whether front pay is an element of compensatory damages subject to the statutory cap set forth in § 1981a(b)(3). Contrary to the Sixth Circuit's resolution of this question, the other Courts of Appeals to address it have concluded that front pay is a remedy that is not subject to the limitations of § 1981a(b)(3). See, e. g., Pals v. Schepel Buick & GMC Truck, Inc., 220 F. 3d 495, 499-500 (CA7 2000); Kramer v. Logan County School Dist. No. R-1, 157 F. 3d 620, 625-626 (CA8 1998); Gotthardt, supra, at 1153-1154; Medlock v. Ortho Biotech, Inc., 164 F. 3d 545, 556 (CA10 1999); EEOC v. W&O, Inc., 213 F. 3d 600, 619, n. 10 (CA11 2000); Martini v. Federal Nat. Mortgage Assn., 178 F. 3d 1336, 1348-1349 (CADC 1999). We granted certiorari to resolve this conflict. 531 U. S. 1069 (2001).

II

Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, backpay, lost benefits, and attorney's fees under § 706(g) of the Civil Rights Act of 1964. 42 U. S. C. § 2000e-5(g)(1). In the Civil Rights Act of 1991, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages. 42 U. S. C. § 1981a(a)(1) ("[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964"). The amount of compensatory damages awarded under § 1981a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under § 1981a, however, may not exceed the statutory cap set forth in § 1981a(b)(3). The statutory cap is based on the number of people employed by the respondent. In this case, the cap is $300,000 because DuPont has more than 500 employees.

The Sixth Circuit has concluded that front pay constitutes compensatory damages awarded for future pecuniary losses and thus is subject to the statutory cap of § 1981a(b)(3). 213 F. 3d, at 945; Hudson, supra, at 1203. For the reasons discussed below, we conclude that front pay is not an element of compensatory damages within the meaning of § 1981a, and, therefore, we hold that the statutory cap of § 1981a(b)(3) is inapplicable to front pay.

A

Under § 706(g) of the Civil Rights Act of 1964 as originally enacted, when a court found that an employer had intentionally engaged in an unlawful employment practice, the court was authorized to "enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay." 42 U. S. C. § 2000e-5(g)(1). This provision closely tracked the language of § 10(c) of the National Labor Relations Act (NLRA), 49 Stat. 454, 29 U. S. C. § 160(c), which similarly authorized orders requiring employers to take appropriate, remedial "affirmative action." § 160(c) (authorizing the National Labor Relations Board to issue an order "requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter"). See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 419, n. 11 (1975). The meaning of this provision of the NLRA prior to enactment of the Civil Rights Act of 1964, therefore, gives us guidance as to the proper meaning of the same language in § 706(g) of Title VII. In applying § 10(c) of the NLRA, the Board consistently had made awards of what it called "backpay" up to the date the employee was reinstated or returned to the position he should have been in had the violation of the NLRA not occurred, even if such event occurred after judgment. See, e. g., Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); NLRB v. Reeves Broadcasting & Development Corp., 336 F. 2d 590, 593-594 (CA4 1964); NLRB v. Hill & Hill Truck Line, Inc., 266 F. 2d 883, 887 (CA5 1959); Berger Polishing, Inc., 147 N. L. R. B. 21, 40 (1964); Lock Joint Pipe Co., 141 N. L. R. B. 943, 948 (1963). Consistent with the Board's interpretation of this provision of the NLRA, courts finding unlawful intentional discrimination in Title VII actions awarded this same type of backpay under § 706(g). See, e. g., Culpepper v. Reynolds Metals Co., 442 F. 2d 1078, 1080 (CA5 1971); United States v. Georgia Power Co., 3 FEP Cases 767, 790 (ND Ga. 1971). In the Title VII context, this form of "backpay" occurring after the date of judgment is known today as "front pay."

In 1972, Congress expanded § 706(g) to specify that a court could, in addition to awarding those remedies previously listed in the provision, award "any other equitable relief as the court deems appropriate." After this amendment to § 706(g), courts endorsed a broad view of front pay. See, e. g., Patterson v. American Tobacco Co., 535 F. 2d 257, 269 (CA4 1976) (stating that where reinstatement is not immediately feasible, backpay "should be supplemented by an award equal to the estimated present value of lost earnings that are reasonably likely to occur between the date of judgment and the time when the employee can assume his...

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