Doing an End Run Around Damage Caps: Pollard v. E.i. Dupont De Nemours and Unlimited Front Pay - Rhonda Wilcox

• Publication year: 2002

Comment

Doing an End Run Around Damage Caps: Pollard v. E.I. DuPont de Nemours and Unlimited Front Pay

When Congress passed the Civil Rights Act of 1991 ("the Act"),¹ it sought to expand the remedies available to plaintiffs in Title VII actions for employment discrimination.² Prior to passage of the Act, a successful plaintiff in a Title VII action was entitled to limited relief. Section 706(g) of the Equal Employment Opportunity Act of 1972 provided that a court could enjoin the employer from engaging in illegal discrimination³ and order affirmative relief, "which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate."⁴ But Title VII plaintiffs rarely got compensatory or punitive damages. The statute was silent on the issue of such damages, and courts were extremely reluctant to award them.⁵

As a practical matter, financial awards under Title VII were almost exclusively in the form of front pay and back pay.⁶ These actual damages might be rather small and could be further limited by the plaintiff's duty to mitigate her damages.⁷ This meant that plaintiffs often had little or no financial incentive to pursue their claims (assuming they could find attorneys willing to represent them).⁸ For victims of sexual harassment, a form of discrimination,⁹ there was even less reason, at least monetarily, to bring suit. A victim who could prove she was subject to a hostile working environment, but who had suffered no corresponding financial loss such as termination or demotion, was entitled to no damages award at all.¹⁰ As Representative Hawkins noted during the debate on the 1991 Act, "There is little incentive for a plaintiff to bring a [T]itle VII suit when the best that she can hope for is an order to her supervisor and to her employer to treat her with the dignity she deserves and the costs of bringing her suit."¹¹

The bill that passed Congress in November 1991 was a compromise. Representative Hughes told his colleagues that the bill was "not a perfect bill by any means, but its flaws are significantly outweighed by its virtues."¹² One of the flaws of the bill, in Representative Hughes's opinion, was the cap it set on compensatory and punitive damages.¹³ Some legislators were dismayed by the bill's expansion of tort remedies for employment discrimination, especially because the new remedies were accompanied by the right to a jury trial,¹⁴ previously unavailable in such cases.¹⁵ The compromise was to allow compensatory and punitive damages when the plaintiff was able to prove intentional discrimination,¹⁶ but to limit those damages according to the employer's size. The caps were set at $50,000 for an employer with 15 to 100 employees; $100,000 for an employer with 101 to 200 employees;

$200,000 for an employer with 201 to 500 employees; and $300,000 for an employer with more than 500 employees.¹⁷

Because it was a compromise, the Act left many questions to be answered by the courts.¹⁸ One such question was exactly what types of damages were classified as "compensatory" and thus subject to the caps. By the Act's plain language, compensatory damages were denned to include "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses."¹⁹ The Act also provided that compensatory damages did not include "backpay, interest on backpay, or any other type of relief authorized under section 706(g)" of Title VII.²⁰ These previously available remedies were left intact; because they were not defined as "compensatory damages" under the new statute, they were not subject to the caps. As before, trial courts could award these damages in amounts exceeding $300,000, subject to the plaintiff's ability to prove her damages.

Not specifically mentioned in the Act was "front pay," monetary relief awarded in lieu of reinstatement. Of course, front pay was not mentioned by name in section 706(g) either. It was a creation of the courts, originally designed as a form of "make-whole" relief for plaintiffs who should be restored to their jobs, but whose reinstatement was not an available option at the time of judgment.²¹ In its initial conception, front pay involved a situation when reinstatement of the plaintiff would affect the rights of innocent parties, by '"bumping" other employees out of their jobs in order to restore the plaintiff to his rightful position. Front pay was conceived as essentially the same thing as back pay, but covered a different time period. Back pay was awarded for damages from the time of the injury until the court's decision; front pay covered the period from the court's decision until the plaintiff's reinstatement.

By the time of the 1991 Act, the concept of front pay had been expanded to include situations in which the court believed reinstatement was impractical due to hostility between the parties, including antagonism that developed as a result of the litigation itself.²² The remedy had been used for almost two decades, and there was little doubt that it could be used after passage of the Act. The question was its status: Was it a pre-existing remedy, and thus excluded from compensatory damages and exempt from the caps? Or had the Act, by defining compensatory damages as "future pecuniary loss," reclassified front pay so that it would be subject to the new statutory limits on damages?

Most circuits ruling on the issue determined that front pay was not a form of compensatory damages, but rather a remedy that was previously available and therefore unaffected by the Act. The Sixth Circuit disagreed, however, and its decision in Pollard v. E.I. DuPont de Nemours Co.²³ capped a sexual harassment victim's front pay at $300,000.²⁴ The Supreme Court reversed that decision in 2001,²⁵ holding that front pay is a remedy authorized by section 706(g) and that Congress "did not limit the availability of such awards in Sec. 1981a."²⁶ In an opinion by Justice Thomas, the Court said that Congress "sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay."²⁷ The case was remanded,²⁸ with the plaintiff now free to seek the $800,000 front pay award she initially requested.²⁹

This Comment examines the import of the Court's decision in light of the substantial discretion awarded to trial courts in fashioning remedies for employment discrimination. Part I reviews the lower court decisions in Pollard, including a recitation of the particularly egregious set of facts that gave rise to this case. Part II outlines the Supreme Court's decision, which reversed the Sixth Circuit. Part III identifies the issue not squarely addressed in Pollard: When is front pay an appropriate remedy? Part IV thus presents the problem not confronted by the Supreme Court in that case—the temptation of lower courts to award punitive damages in the guise of "front pay," thus evading the caps imposed by the Act. Part IV presents a workable model for front pay awards, drawn from an earlier Sixth Circuit decision, and shows how a similar model was applied in a district court decision with facts as egregious as those in the Pollard case.

I. A "Campaign of Harassment" Leads to a $407,364 Award

Sharon Pollard went to work for DuPont in 1977 and was promoted within a year. In 1987 she was promoted again, to the position of operator in the hydrogen peroxide area. Pollard was one of four women in the peroxide area; the other 24 employees were male.³⁰ The district court opinion noted that it was "common knowledge" in the peroxide area that many of the men in that area "did not approve of women working in peroxide."³¹ Indeed, while Pollard worked on the "C" shift as an operator, one of the assistant operators refused to take direction from her.³² He left a Bible on her desk opened to a passage which read, "I do not permit a woman to teach or have authority over a man. She must be silent."³³

In 1992 Pollard transferred to the "A" shift. The only woman on the shift, she worked with six men in addition to her supervisor.³⁴ Initially, the members of the shift "got along well," eating their meals together and talking "regularly about their lives outside of work."³⁵ That changed in February 1994 when DuPont decided to participate in "Take

Your Daughters to Work Day." Pollard was asked to meet some girls visiting the plant that day in order to talk with them about her job. A number of men throughout the plant were opposed to DuPont's sponsorship of this event.³⁶ When Pollard discussed it with men on her shift, two of them, Steve Carney and Jerry Lee, "made clear that they were against it."³⁷

Subsequently, the "atmosphere on the shift began to change."³⁸ Pollard testified, "If I came into the lunchroom, nobody would sit down at the table with me. If I sat down at a table that someone was already sitting at, they would get up and leave."³⁹ At trial, some members of the shift testified that they were following the instructions of Carney.⁴⁰ Carney admitted at trial that he often referred to women as "heifers" and to Pollard as a "bitch."⁴¹ The district court found that Carney's behavior was not merely annoying; it bordered on dangerous.⁴² In addition to encouraging his coworkers not to eat with Pollard or talk with her, he would set off alarms in her area, "causing her to run around the peroxide area in search of a nonexistent problem."⁴³ On several occasions, when actual alarms should have been called in Pollard's area, Carney failed to alert her.⁴⁴ When Pollard did not respond, "it would appear to the . . . operator on the next shift that she was not doing her job."⁴⁵ Carney also instructed coworkers to remove vaporizers from tanks Pollard was responsible for monitoring.⁴⁶ Early removal of the vaporizers could result in a weakened product or insufficient production for the...