Monday, November 25, 2002

POLLARD WANTS A COHERENT RATIONALE (originally posted 6/4/01)

The good news is that the Court got it right today in ruling that "front pay" awards are not subject to the $300,000 cap in Title VII cases. Pollard v. E.I. de Pont de Nemours & Co., No. 00-763. The bad news is, well, everything else in the opinion.

The Court holds that a "front pay" award is not compensatory (slip op. at 1, 9). This is surprising, because such awards obviously compensate the plaintiff for "future pecuniary losses," one of the statutorily enumerated categories of compensatory damages. (The Court nods to the obvious by noting that this reading would indeed seem natural "[i]n the abstract." Slip op. at 8.)

Here's what's really going on in what should have been a simple case. The statutory cap imposed by 42 U.S.C. sec. 1981a(b)(3), which the Court does not anywhere quote, applies by its terms only to compensatory damages "awarded under this section." But, as the Court notes, there was no question here that front pay can be independently awarded under another section of the statute, section 706(g), 42 U.S.C. sec. 2000e-5(g). So the cap is facially inapplicable even if the underlying damages are compensatory. Which they are.

We hope this clears everything up.


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