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The problem with giving future lost wages to successful job bias litigants, defense lawyers say, is that the amounts are unpredictable and the duration can be budget-busting for some employers. But employers will have to live with the vagaries of so-called front pay, says the U.S. Supreme Court. Live with it, that is, unless Congress chooses to amend the Civil Rights Act of 1991. And since the act was the product of a rancorous battle that prompted a presidential veto, additional compromise and deliberate agreements to be ambiguous in the text, the currently divided Congress is unlikely to take up the employers’ cause, say political observers on both sides of the aisle. Employers’ best hope of limiting the increasingly important remedy of so-called “front pay” was dashed on June 4 by the U.S. Supreme Court. Pollard v. E.I. DuPont De Nemours & Co., No. 00-763. In Pollard — a hostile work environment suit — a unanimous court rejected employers’ arguments that front pay was an element of compensatory damages and thus subject to the damages cap imposed by the 1991 act. A front pay award is usually based on earnings a plaintiff would have received but for the discrimination. The award can cover the period from the court’s judgment until reinstatement to the job, or simply in lieu of reinstatement. It has become more significant for litigants as reinstatement has become less practical, particularly in sexual harassment-hostile work environment situations, employment litigators say. For some job bias victims, like Sharon Pollard, a front pay award can make a dramatic difference. After Pollard proved that she was the victim of intentional and egregious sex discrimination by DuPont, a court awarded her $107,364 in backpay and benefits and $300,000 in compensatory damages, the most permitted by the law. That compensatory award, her lawyer will soon argue, should be supplemented with front pay of about $800,000. ‘A GNAT BITE’ “A $300,000 award is like a gnat bite,” says Pollard’s counsel, Kathleen Laird Caldwell of Memphis’ Taylor, Halliburton & Ledbetter. “DuPont is so big and has megabucks. It doesn’t affect big employers at all.” The high court’s decision doesn’t change the playing field, insists Christopher J. Collins, senior counsel at New York’s Proskauer Rose, which filed an amicus brief supporting DuPont on behalf of the Society for Human Resource Management. “Front pay in virtually all of the circuits had been available and not subject to caps,” he says, adding, “It only might bring to the forefront the availability of this type of remedy.” That is bad enough, Collins says, because front pay is “very unpredictable. Courts can award no front pay or front pay that can be a decade long.” For the justices, the case raised questions of language and intent. The 1991 act gave Title VII plaintiffs for the first time a right to a jury trial and to compensatory and punitive damages. Previously, they could win only equitable relief, such as backpay, injunctions and reinstatement. But Congress also imposed limits on damages. Caps range from $50,000 to $300,000, depending on the size of the employer’s work force. There is no reference to front pay in the act. It has two relevant but conflicting provisions. One expressly includes “future pecuniary losses” as compensatory damages. That meant front pay and the cap should apply, DuPont and an array of business groups argued. The other says that compensatory damages did not include any of the remedies that had been available historically under Section 706(g) of the 1964 Civil Rights Act. And many courts historically interpreted Section 706(g) to authorize an equitable remedy of front pay. Writing for the Court, Justice Clarence Thomas said 706(g) did authorize front pay awards. The section was modeled after a provision in the National Labor Relations Act which allowed “backpay awards,” today known as front pay under Title VII, up to the date of reinstatement, even if reinstatement occurred after judgment. Congress didn’t intend to include front pay in the 1991 damages caps, he wrote: “Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay.” If front pay had been included in the damages caps, it probably would have consumed the entire cap in small-employer situations, says employment law scholar Charles Craver of George Washington University National Law Center. “So even if you were entitled to compensatory damages, those remedies would become irrelevant because they would have been beyond the cap,” he says. A front pay award on top of even a $50,000 cap for small employers “can do great damage,” Caldwell acknowledges. But she adds, “I think the number of times a small employer would be hit with a significant front pay award is going to be fairly minimal. And, frankly, this gives incentive not to let discriminatory acts occur.” Front pay is used increasingly because cases take so long to litigate that plaintiffs often move to other jobs, and cases generate such hostility that judges are reluctant to return the plaintiff to the offending environment. It used to be “routine to order people back to work and it was what these guys wanted — jobs,” says employment litigator Woodley B. Osborne of Washington, D.C.’s Osborne & Deutsch. Now, he says, “Reinstatement is not as attractive an arrangement because there is such bad blood between the two sides.” The 1991 act, says Proskauer Rose’s Collins, really represented a balancing by Congress of additional remedies for discrimination victims and tort reform through the damages caps. But unpredictable and lengthy front pay “really undermines the whole congressional purpose of balancing remedies and tort reform,” he says. “So maybe Congress will look at that in the future and fix it.” Caldwell responds, “We hope Congress will not.”

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