Chapter 3 - § 3.7 • REMEDIES FOR VIOLATION OF TITLE VII

• Jurisdiction: Colorado

§ 3.7 • REMEDIES FOR VIOLATION OF TITLE VII

Title VII remedies are designed to make a person whole for injuries suffered from past discrimination. Historically, this has meant reinstatement to the position the employee held before the employee was terminated or placement in the position the plaintiff claimed he or she was discriminatorily denied, plus back pay and payment of attorney fees. Since Title VII was passed, the concept of front pay as a remedy in lieu of reinstatement where reinstatement is not feasible has become more common. The Civil Rights Act of 1991 now permits the possibility of recovering damages for emotional distress and punitive damages.

§ 3.7.1—Reinstatement

If a plaintiff proves that he or she has been discriminated against, then the plaintiff is entitled to be reinstated in the position he or she held before the termination, or the plaintiff is entitled to be placed in the position that he or she was discriminatorily denied through a failure to hire, promote, or retain. Reinstatement and front pay are alternative remedies for making the plaintiff whole. Front pay rather than reinstatement, however, may be more appropriate where evidence demonstrates hostility between the parties, the employer set out to make an example of the employee, and the employer's illegal conduct rendered the employee vulnerable to layoff. Abuan v. Level 3 Commc'ns, Inc., 353 F.3d 1158 (10th Cir. 2003).

§ 3.7.2—Back Pay

A violation of Title VII entitles a plaintiff to back pay, but not more than two years from the filing of a charge of discrimination with the EEOC. 42 U.S.C. § 2000d-5(g)(1). In addition, wages and compensation earned by a plaintiff from other employment reduces the back pay amount. Id. However, there are certain events that can terminate the back-pay period before judgment, including:

• The date of an offer of reinstatement;
• The date the plaintiff obtains a higher-paying job than the position at issue paid;
• The date on which the plaintiff would have been terminated for a nondiscriminatory reason, such as when the employer has gone out of business; or
• The elimination of the position the plaintiff occupied before termination.
Practice Pointer
Employer's counsel should always obtain a plaintiff's financial earnings and his or her mitigation of damages efforts up to and including the trial date. Counsel should examine whether the evidence suggests that the plaintiff turned down job offers or failed to conduct a reasonably diligent job search. In doing so, counsel for the employer should investigate whether comparable job openings were available to the plaintiff for which the plaintiff failed to apply. Plaintiff's counsel should require the plaintiff to be diligent and document his or her job search efforts. Where appropriate, defense counsel should examine with the employer whether an offer of reinstatement is feasible.

The amount of back pay is calculated by determining the value of the plaintiff's total earnings such as salary, overtime wages, and premium pay, plus benefits for the position sought, minus the plaintiff's "interim" earnings including the value of actual benefits. Title VII also provides that amounts earnable with reasonable diligence must be deducted from the back-pay award. This requires the plaintiff to mitigate his or her damages by seeking other employment. The burden of proving a failure to mitigate lies with the defendant in a Title VII action. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (quoting United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979)).

Practice Pointer
In calculating damages, plaintiff's counsel should value, in addition to lost wages or salary, lost overtime, tips, bonuses or commissions, pensions, stock options, savings plans, benefits, employee discount benefits, value of lost raises and promotions, health and life insurance, and vacation and sick pay.

The determination of whether a plaintiff is entitled to back pay is a judicial decision within the discretion of the trial court after a finding that the employer intentionally engaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(g)(1). Tudor v. Se. Okla. State Univ., 13 F.4th 1019 (10th Cir. 2021). When the 1991 amendments to the Civil Rights Act were enacted, Congress expressly excluded and kept segregated a back pay award from an award of compensatory damages. 42 U.S.C. § 1981a(b)(2). In § 1981a(b)(2), Congress expressly referenced § 2000e-5(g), which authorizes the court, not a jury, to determine issues of back pay.

An award of back pay is an equitable remedy. Albemarble Paper Co. v. Moody, 422 U.S. 405, 416 (1975). However, the denial of back pay must be supported by the exercise of...