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Eleven years after business and civil rights groups compromised in Congress over major changes in job bias laws, the U.S. Supreme Court has taken up an issue that could tilt the playing field. The justices will decide whether awards of future lost wages — so-called front pay — in employment discrimination suits fall under the cap that Congress imposed on compensatory and punitive damages awards in the Civil Rights Act of 1991. “Looking at the statute doesn’t give you a definitive answer,” says employment law scholar Charles Craver of George Washington University National Law Center. “I would not be willing to bet any significant amount of money on which way the justices will go. But they’ve been rather hostile to job bias plaintiffs in recent years.” The justices will hear arguments in Pollard v. E.I. du Pont de Nemours & Co., No. 00-763, today. Not surprisingly, the case has generated the usual division between business and plaintiffs’ interests. The U.S. Chamber of Commerce and others argue that front pay is capped by the act. The National Employment Lawyers Association takes the opposite tack. The U.S. Equal Employment Opportunity Commission has weighed in, arguing that front pay was not capped by Congress. The 1991 act was itself a reaction by Congress to a series of high court decisions in the late 1980s that made it significantly more difficult for plaintiffs to prevail on job-discrimination claims. Congress enacted the 1991 measure after a presidential veto, political compromises that rose and set like the sun and even deliberate agreements to be ambiguous. The act, for the first time, gave plaintiffs claiming intentional employment discrimination under Title VII of the 1964 Civil Rights Act a right to a jury trial and a right to recover compensatory and punitive damages. Before the 1991 act was passed, Title VII plaintiffs could only win equitable relief, such as back pay, reinstatement and injunctions. But with the right to recover damages, Congress also imposed limits. The act sets damage caps ranging from $50,000 to $300,000, depending on the size of the employer’s work force. The problem for the high court stems from two provisions in the law. One expressly included “future pecuniary losses” as compensatory damages, and that, DuPont and others argue, means front pay. But another says that compensatory damages do not include any of the remedies that had been available historically under � 706(g) of the 1964 Civil Rights Act. And many courts historically have interpreted � 706(g) to authorize an equitable remedy of front pay. The conflicting provisions come to the high court in a suit by Sharon Pollard, an employee of DuPont at its hydrogen peroxide plant in Memphis, Tenn. After suing DuPont for sexual harassment, Pollard proved in a bench trial that she had been subjected to a hostile work environment. She had been forced to take a medical leave for psychological treatment and was fired after refusing to return to the same job environment. Calling her co-workers’ conduct “reprehensible” and charging her supervisors with “wretched indifference,” the district court awarded Pollard $107,364 in back pay and benefits and $300,000 in compensatory damages. The court specifically stated that the award was insufficient but added that it could not add front pay because it was bound by a precedent of the U.S. Court of Appeals for the 6th Circuit, holding that front pay is “future pecuniary loss” subject to the cap. On appeal, a 6th Circuit panel affirmed, citing the precedent. But it firmly disagreed with the precedent and noted that all the other circuits to face the issue had found that front pay was an equitable remedy not subject to the cap. The full 6th Circuit declined to review the panel’s ruling. If front pay had been available for Pollard, it would have totaled about $800,000, nearly doubling her award, says her Supreme Court counsel, Kathleen Laird Caldwell of Memphis’ Taylor Halliburton Ledbetter. LEGAL V. EQUITABLE Front pay is particularly significant to older workers who, but for the discrimination, probably would have remained in their jobs until retirement, says Woodley B. Osborne of Washington, D.C.’s Osborne and Deutsch. In those situations, courts routinely order front pay until the date of retirement, he says. Osborne filed an amicus brief supporting Pollard on behalf of the National Employment Lawyers Association. Front pay is always argued as equitable relief if reinstatement is not possible — “which is what happens in more and more of these cases because it takes so long to litigate them,” says Lynne Bernabei of Washington, D.C.’s Bernabei & Katz, which represents plaintiffs in job-discrimination cases. Caldwell agrees, explaining, “You don’t get to the front pay issue until there is a pretty clear reason why the person should not be reinstated. That requires the discretion of the judge, which is another very good reason why front pay is equitable, not legal relief. The judge also has to calculate the amount over a period of time — very unlike what a jury does with a lump sum award of damages.” Congress, she says, intended to make plaintiffs whole with the 1991 act. “If we can piecemeal out damages as DuPont wishes, the intent of Congress in stopping discrimination is clearly thwarted,” she says. “I think we have legislative history and intent on our side.” But DuPont, represented by in-house counsel Raymond Ripple, sees it very differently. The statute’s plain language, he argues, is the beginning and end of the debate. Compensatory damages in the act are expressly defined to include “future pecuniary loss,” he says, and under every definition and understanding of those terms, that includes front pay. He also contends that the 1991 act was a huge break with historical treatment of intentional-discrimination claims and remedies. Congress expanded remedies, but as, part of the carefully crafted political compromise, limited employers’ liability by imposing caps. Christopher J. Collins, senior counsel at New York’s Proskauer Rose, agrees. “One of the rationales behind the Civil Rights Act of 1991 was to be a measure of tort reform,” he says. “If front pay is not subject to the cap, you’ve defeated the purpose behind the act.” Collins, whose firm filed an amicus brief supporting DuPont on behalf of the Society for Human Resource Management, acknowledges that the weight of circuit opinions is against DuPont. “But we do think we have a very principled argument based on text of the statute,” he says, adding that it could be a hard case for the justices because the statute does not expressly mention front pay. That silence could lead the court into the limited and muddled legislative history of the rancorous battle over the 1991 act, Charles Craver says. “There’s not a lot of legislative history to these provisions because Congress couldn’t agree on anything,” he says.

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