David Wirtz and Orit Goldring ()
Fair warning both to defense counsel who represent employers, and to plaintiffs’ counsel who represent employees, in employment-related litigation under Title VII of the Civil Rights Act of 1964, as amended, the New York State Human Rights Law (NYS HRL) and the New York City Human Rights Law (NYC HRL): Whether claims for relief go to the judge or the jury is not as simple as at least some might think. Stated another way, the often-heard mantra in employment litigator circles—”back pay is for the jury and front pay is for the judge”—just isn’t correct.1
In fact, what kinds of claims for relief go to the judge and what claims go to the jury depends on what substantive law is at issue, what relief is sought, and whether the relief is being sought in federal or state court. Unwittingly, defense lawyers in federal court often waive the argument that both back pay and front pay—which includes reinstatement—should be decided by the judge (and there is case law demonstrating such waivers).2 And plaintiff’s lawyers have been selecting the federal courts as their venue, often without realizing that doing so may risk waiving the right to have the jury decide whether back pay or front pay should be awarded, and if so, how much.
The Current Landscape
One thing for certain—when employment discrimination and/or retaliation claims are brought in a federal court under Title VII, both back pay and front pay are treated as equitable remedies to be determined by the court, not the jury.3Thomas v. iStar Fin., 508 F.Supp.2d 252, 258 (SDNY 2007) (“Under Title VII, front pay is unquestionably an equitable remedy to be decided by the court”). Back pay is also for the court. Broadnax v. City of New Haven, 415 F.3d 265, 271 (2d Cir. 2005); Robinson v. Metro-North, 267 F.3d 147, 157 (2d Cir. 2001); Hamza v. Saks Fifth Ave., No. 07 Civ. 5974, 2011 U.S. Dist. LEXIS 139132, at *10 (SDNY 2011) (“[T]his court agrees with the defendant that case law is clear that the issue of back and front pay damages in a Title VII retaliation case is to be resolved by this court rather than the jury”); Colwell v. Suffolk Cnty. Police Dept., 967 F.Supp. 1419, 1431 (EDNY 1997), rev’d on other grounds, 158 F.3d 635 (2d Cir. 1998) (“Title VII and, perforce, the ADA [Americans with Disabilities Act] authorize the court to determine and award back pay”).
The “case law is clear” and so is Title VII itself. As originally enacted, there was no entitlement to a jury at all, and the potential remedies listed for a judge to consider in Section 2000e-5(g)(1) included “reinstatement or hiring of employees, with or without back pay” and “such affirmative action as may be appropriate.” Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 261 (1964) (current version at 42 U.S.C. §2000e-5(g)(1)). The Civil Rights Act of 1991 amended Title VII in multiple ways, but it left intact the original list of remedies for the judge, while adding compensatory damages (back pay excluded) and punitive damages (within certain monetary limitations), which it authorized a jury to consider; i.e., Title VII as amended leaves back pay and front pay for the judge to decide. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1072-73 (1991) ((current version at 42 U.S.C. §2000e-5(g)(1)).
So much for the mantra as to federal claims brought in federal court.
The opposite is true in New York state courts. There, any form of monetary damages—including both back pay and front pay—is treated as a legal, not an equitable, remedy, and, therefore, one to be determined by the jury as a matter of New York state law. Murphy v. Am. Home Prods. Corp., 136 A.D.2d 229, 231 (1st Dept. 1988).4
So much for the mantra as to state claims brought in state court.5
Things get a little murkier with Title VII actions brought in federal court that raise federal and pendent state and/or local discrimination claims. In the few reported decisions addressing the issue of who should be deciding whether to award back or front pay, several federal courts have applied the New York state rule to pendent claims brought under the New York State Human Rights Law (NYS HRL) and the New York City Human Rights Law (NYC HRL), sending both back pay and front pay to the jury to decide, without distinguishing the federal from the state and/or local claims. Chisholm v. Mem’l Sloan-Kettering Cancer Ctr., 824 F.Supp.2d 573, 576 (SDNY 2011) (citing Thomas v. iStar Fin., Inc., 508 F.Supp.2d at 258 (SDNY 2007)) (NYS HRL); Sass v. MTA Bus Co., 6 F.Supp.3d 238, 254 (EDNY 2014) (citing Murphy, Chisholm and Thomas) (NYC HRL).
In Chisholm, the jury’s verdict made no distinction between damages under federal, state or local law, and the court treated the entire damage award as if it had allocated the award to the plaintiff’s claim under the New York State Human Rights Law. 824 F.Supp.2d at 576. In Thomas, the plaintiff brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. and the NYC HRL. The jury awarded back pay and front pay. In considering remittitur, the court acknowledged the “tension” between the federal and state rules, but noted as the court did in Chisholm, that the jury’s verdict made no distinction between the federal and NYC HRL claims, which permitted the court to “consider the entire award of damages as if it were allocated to [the plaintiff’s] claims under the NYCHRL.” 508 F.Supp.2d at 258 (citing Singleton v. City of New York, No. 05 cv. 7769, 2007 WL 2219334 at *2 (SDNY, Aug. 3, 2007)). And finally, in Sass, the plaintiff brought his discrimination claims under Title VII, the NYS HRL, and the NYC HRL. The court looked to the NYS HRL and treated back pay as a legal remedy “under the parallel” NYC HRL, citing Chisholm. 6 F.Supp.3d at 254.
In sum, absent a distinction in the jury instructions and on the special verdict form, awards of back pay and front pay have been treated as within the province of the jury as to state and local discrimination laws, but also as to Title VII.
This phenomenon may explain, at least in part, why employee-side practitioners most often bring their cases in federal court. There are advantages over the state courts there of course, like the relative speed with which things move, but also, unless defense counsel interferes (see below), it is the jury that will be deciding how much back and front pay to award.
Dangers and Risks
Proceeding federally also avoids a danger for plaintiff’s lawyers that is apparently unknown to some, specifically, that seeking equitable relief in a New York state court (like reinstatement, which is a common remedy in discrimination actions) waives the right to a jury trial altogether. (Seeking back pay or front pay does not run this risk, because neither is considered an equitable remedy under New York law.) Kaplan v. Long Island Univ., 116 A.D.2d 508, 509 (1st Dept. 1986); Bockino v. Metro. Transp. Auth., 224 A.D.2d 471, 471, (2d Dept.), app. den. 88 N.Y.2d 805 (1996) (where a plaintiff seeks the equitable remedy of reinstatement under the Human Rights Law, together with the legal remedy of damages, she waives the right a jury trial).
While several federal courts have applied New York state law to pendent claims by permitting juries to decide issues of back and front pay, plaintiffs’ lawyers have been saved from waiving the right to a jury trial by filing a complaint that seeks equitable and monetary relief in federal court by a somewhat strange twist, that is, federal courts have been unwilling to apply New York state law in this regard: “[W]hen a federal court is presented with a case involving both legal and equitable claims for relief that have common issues of fact, and a jury trial has been properly demanded with respect to the legal claims, the party making the demand has a right to have the legal claims tried to a jury, even though they would have no such right if they had brought their combined claims in state court.” Davila v. New York Hosp., 813 F.Supp. 977, 987-988 (SDNY 1993) (citing Resnick v. Resnick, 763 F.Supp. 760, 766 (SDNY 1991) and Kaplan, supra)) (emphasis added).
To reach such result requires some mental gymnastics, since these courts have been seemingly untroubled by the fact that the same rationale for applying the New York state rules as to back and front pay also apply to the jury waiver rule; i.e., “[F]ederal courts must apply state substantive law to pendent state claims.” Davila, 813 F.Supp. at 987.
There is a possible way to avoid the need for these mental gymnastics, however. It comes in the form of the U.S. Court of Appeals for the Second Circuit’s decision in Thomas v. iStar. In that case, the court reaffirmed that back pay and front pay are equitable remedies for both discrimination and retaliation claims under Title VII. But it did not stop there. The court went on to indicate that “defendants may be correct that federal courts should also treat as equitable damages those damages sought for violations of pendent state law claims [New York State and City Human Rights Laws] that are ‘virtually identical’ to Title VII claims.” (citations omitted). 652 F.3d 141, 152 n.9 (2d. Cir. 2010) (emphasis added).
Thus, despite the practice of letting the jury decide whether back and front pay should be awarded under federal, state and local law, there is room for defense counsel to argue that the opposite should be true, and that the court should take on that task, even if there are pendent NYS HRL and/or NYC HRL claims in the picture, so long as they are “virtually identical” (as they so often are in these kinds of complaints).
• Defense lawyers should not give up the argument that seeking equitable and legal remedies in actions that include Title VII, NYS HRL and/or NYC HRL claims waives the plaintiff’s right to a jury trial in federal court altogether. This is concededly an uphill argument, but one that should be waived advisedly, not casually.
• Plaintiffs’ lawyers should not take it as a given that seeking equitable and legal relief in federal court will get them to a jury on back and front pay.
• Defense lawyers in federal court should make clear that their expectation is that both back and front pay are for the judge in every pre-trial submission, including proposed jury instructions, and a proposed special verdict form, all of which should distinguish between Title VII, NYS HRL and NYC HRL claims with regard to remedies, thereby preserving the entitlement under federal law to have the court, not a jury, decide back and front pay issues.
• Plaintiffs’ lawyers in federal court should consider arguing for a general verdict form. Failing that (and getting one in these types of cases would be another uphill argument), they should propose jury instructions and a special verdict form that intermingle the federal, state and local claims, because it appears most likely that the court will let the jury decide both back and front pay on all claims if no distinctions are drawn.
• Defense lawyers should add the back and front pay issue to the list of issues they consider as they analyze whether to pursue removal of a discrimination action brought in a New York state court.
• Plaintiffs’ lawyers should consider seriously the risks of proceeding in a New York state court if they intend to seek any equitable remedies like reinstatement.6
1. After all, the full mantra goes, front pay—future compensation based upon a terminated employee’s past rate of compensation—is a substitute for the equitable remedy of reinstatement, and everybody knows from law school that equitable remedies have been questions for the court, not the jury, going back to England’s separate courts of law and equity.
2. See, e.g., Thomas v. iStar Fin., 652 F.3d 141, 152 (2d. Cir. 2010); Broadnax v. City of New Haven, 415 F.3d 265, 270-73 (2d Cir. 2005).
3. The remedies structure of federal discrimination statutes other than Title VII (such as the Age Discrimination in Employment Act) differs from Title VII and are beyond the scope of this article.
4. We have not found a New York state court decision addressing these issues in the context of a case in which federal claims were also brought.
5. We have not found a comparable decision involving the NYC HRL, but there is a possible clue in Sass v. MTA Bus Co., in which the court describes the NYS HRL and NYC HRL as “parallel” with regard to remedies. 6 F.Supp.3d at 254.
6. We acknowledge that judges have various tools to address these issues as a practical matter. For example, Federal Rule of Civil Procedure 39(c) entitles the court to refer “any issue” to an advisory jury, either on motion or sua sponte. The legal and tactical issues raised by such options in federal or New York State courts are beyond the scope of this article.