Supreme Court Removes Cap on "Front Pay"
in Discrimination Cases

Jeff Harlig

(appeared in Rights Stuff, newsletter of the Bloomington Human Rights Commission,
September 2001, pp. 1-2)

Sharon Pollard worked as an operator in the hydrogen peroxide production area of a DuPont plant in Tennessee. She was harassed by her male co-workers from 1987 to 1996, when she left the company. Pollard’s harassment was gender based, but was not sexual harassment. She was harassed because she was a woman doing what was traditionally considered a man’s job.

Male co-workers made every effort to undermine Pollard’s authority and make her job performance appear inadequate. For example, another operator left a Bible on her desk open to the passage "I do not permit a woman to teach or have authority over man. She must be silent." Another group of co-workers circulated an e-mail condemning Pollard for participating in Take Your Daughter to Work Day, and others criticized her for attending a company-sponsored support group called the Women’s Network. Pollard’s coworkers also referred to her with derogatory terms based on her gender and openly discussed the fact that they did not approve of women working in the peroxide department, coaching softball teams, or doing other "men’s work." Perhaps most significantly, Pollard’s co-workers directly undermined her ability to do her job. They told other male operators not to follow her instructions, set off false alarms in her area when she was in charge and sabotaged her projects to make her look bad.

Pollard complained repeatedly to her supervisor, and he witnessed the harassment first-hand. Nevertheless, DuPont conducted only a superficial investigation of the problem and never officially reprimanded or punished anyone involved. Pollard finally took medical leave to get psychological assistance for problems resulting from the way she had been treated. DuPont then required her to return to the same work area. When she refused, she was fired.

DuPont was found liable for having violated Title VII of the Civil Rights Act of 1964 by a district court. The court awarded Pollard $107,364 in back pay - pay she would have received from the time she was fired until the time the court made its judgment - and $300,000 in compensatory damages. Pollard had requested $800,000 in compensatory damages. The money was to include estimated pay that she would not receive because she was unable to return to work at DuPont. This is one instance of what has come to be called "front pay." Although the district court, and later the Sixth Circuit Court of Appeals, agreed that $300,000 was insufficient compensation for Pollard’s treatment, they believed that they were bound by the Sixth Circuit Court’s earlier ruling that front pay was subject to the cap on compensatory damages that Congress had put in place when it first allowed such damages in the 1991 Civil Rights Act.

Often, courts resolved discrimination cases and other labor disputes by ordering a company to reinstate a plaintiff who had been wronged. The pay awarded to a plaintiff that had been lost during the dispute and trial was called "back pay." Over time, "back pay" came to refer to the pay awarded to a plaintiff up to the time the court rendered its judgment. A new term, "front pay," has come to refer to the pay a plaintiff is entitled to between the time the judgment is reached and the time the worker returns to the place of employment.

Increasingly, however, employees are unable to return to the same workplace because the hostility created between the company and the worker by the harassment and subsequent litigation makes future cooperation impossible. In other cases, the employee has been so severely traumatized that he/she would be unable to function in the old work environment. In these cases, the courts may award front pay that includes the projected income the employee would have received over some number of years of future employment in the previous position.

Pollard’s case reached the U.S. Supreme Court in 2000, and its unanimous decision in June of this year changed the liability picture for companies that fail to correct situations of harassment and discrimination.

The Supreme Court engaged in some complicated reasoning to arrive at its conclusion that front pay should have no limits set on amount. It determined that front pay is not recovery of "future pecuniary losses," an element of compensatory damages subject to the $300,000 cap. It arrived at this decision by finding that Congress did not intend for the already existing remedies in the original Civil Rights Act of 1964 to be reduced when it added the additional remedies of the 1991 act. Historically, back pay included the period now covered by the term "front pay." Back pay was a pre-existing remedy in 1991. Therefore, the Court concluded, Congress could not have meant for front pay to be part of the compensatory damages option added at that time.

Several business groups, including the Society for Human Resource Management, joined DuPont in hoping that the court would not reach this decision. In reality, it does not change outcomes that much, since all Circuit courts besides the Sixth that have ruled in these cases have already agreed that front pay has no statutory cap. The Supreme Court’s decision, however, imposes this ruling on all courts in the country, and the publicity surrounding it makes the remedy better known to employees who have been or will be discriminated against. Employers should be aware that this new ruling provides further incentive to adequately monitor and resolve harassment and discrimination in their workplaces.