B. Equitable Remedies

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Equitable Remedies

1. Reinstatement

"The beginning point ...for preventing future loss is reinstatement."⁶² Reinstatement is not mandatory, but is within the discretion of the trial court,⁶³ and may properly be denied where it would be impractical.⁶⁴ Emphasizing the primary role of reinstatement, a district court in the Fourth Circuit has held that reinstatement is proper even when the plaintiff does not want it.⁶⁵ Once reinstated, plaintiffs may be granted any seniority lost as a result of the discrimination.

2. Front Pay

In cases in which reinstatement is not an option, the "alternate remedy" of front pay may be used to make the plaintiff whole for future expected losses.⁶⁶ A number of factors determine the amount of an award of front pay. These factors include the time period for which front pay should be calculated, the amount of reasonably expected future earnings, the employees work and life expectancy, and the present value of the future earnings.

The Fourth Circuit has stated that front pay is an equitable remedy under the ADEA.⁶⁷ Therefore, front pay would be an equitable remedy under Title VII. As an equitable remedy, the award and amount of front pay are questions for the court, not the jury.⁶⁸ Because of the potential for abuse, however, and recognizing its limitations, front pay is not the preferred remedy. The Fourth Circuit has held that reinstatement is the "much preferred remedy" and that front pay "may serve as a substitute or complement."⁶⁹

It should be noted, however, the "after-acquired evidence doctrine" provides that evidence of employee wrongdoing, even if acquired by the employer after a discriminatory or wrongful termination, may limit an award of back pay and disentitlement to front pay and...