No. 00-763 

In the Supreme Court of the United States 

SHARON B. POLLARD, PETITIONER 

v. 

E.I. DUPONT DE NEMOURS COMPANY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

GWENDOLYN YOUNG REAMS 

Associate General Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

CAROLYN L. WHEELER 

Assistant General Counsel 

CAREN I. FRIEDMAN 

Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20463 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 

General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

DENNIS J. DIMSEY 
JENNIFER LEVIN 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether an award of front pay in an action brought 
under Section 706 of the Civil Rights Act of 1964, 42 
U.S.C. 2000e-5, is subject to the cap on compensatory 
and punitive damages established by the Civil Rights 
Act of 1991, 42 U.S.C. 1981a(b)(3). 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States and the Equal Employ- 
ment Opportunity Commission ........................................... 
1 

Statutory provisions involved ..................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
8 

Argument: 

Front pay awards in Title VII cases are not subject 

to the cap on compensatory and punitive damages 

established by 42 U.S.C. 1981a ........................................... 

10 

A. Equitable remedies that are available under 

42 U.S.C. 2000e-5(g) are not subject to the 

cap on damages ............................................................ 

10 

B. Front pay is authorized under Section 

2000e-5(g) ...................................................................... 13 

C. The legislative history of the 1991 Act and 

EEOC guidance further support the conclu- 
sion that front pay awards are not subject to the 

damages cap ................................................................. 
20 

Conclusion ....................................................................................... 24 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
29a 

TABLE OF AUTHORITIES 

Cases: 

Albemarle Paper Co. v. Moody, 422 U.S. 405 

(1975) .................................................................................... 

11, 16 

Anderson v. Group Hospitalization, Inc., 820 F.2d 

465 (D.C. Cir. 1987) ............................................................... 

13 

Barbano v. Madison County, 922 F.2d 139 (2d Cir. 

1990) ......................................................................................... 14 

(III) 

IV 

Cases—Continued: Page 

Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995), 

cert. granted in part, 516 U.S. 1086 (1996), and 

dismissed, 516 U.S. 1155 (1996) ........................................... 

15 

Blum v. Witco Chem. Corp., 829 F.2d 367 (3d Cir. 

1987) ......................................................................................... 14 

Cannon v. University of Chicago, 441 U.S. 677 

(1979) ........................................................................................ 16 

Cassino v. Reichhold Chems., Inc., 817 F.2d 1338 

(9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988) ........... 

13, 15 

EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 

2000) ......................................................................................... 17 

Faragher v. City of Boca Raton, 524 U.S. 775 

(1998) ........................................................................................ 16 

Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 

945 (10th Cir. 1980) ................................................................ 

13, 14 

Franks v. Bowman Transp. Co., 424 U.S. 747 

(1976) ........................................................................................ 

15, 16 

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ............. 

23 

Gotthardt v. National R.R. Passenger Corp., 

191 F.3d 1148 (9th Cir. 1999) ............................................... 

13, 17 

Hadleyv. VAMPTS, 44 F.3d 372 (5th Cir. 1995) ......... 17 

Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997), 

cert. denied, 525 U.S. 822 (1988) ........................ 

6, 9, 17, 18, 19 

Johnson v. Railway Express Agency, Inc., 

421 U.S. 454 (1975) ................................................................ 

11 

Landgraf v. USI Film Prods., 511 U.S. 244 

(1944) .............................................................. 

11-12, 16, 17, 20, 22 

Lorillard v. Pons, 434 U.S. 575 (1978) ................................ 

16 

Lussier v. Runyon, 50 F.3d 1103 (1st Cir.), cert. 

denied, 516 U.S. 815 (1995) .................................................. 

17 

Kolstad v. American Dental Ass’n, 527 U.S. 526 

(1999) ........................................................................................ 12 

Kramer v. Logan County Sch. Dist. No. R-1, 

157 F.3d 620 (8th Cir. 1998) ................................................. 8, 17 

V 

Cases—Continued: Page 

Martini v. Federal Nat’l Mortgage Ass’n, 178 F.3d 

1336 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 

(2000) ........................................................................................ 

8, 17 

McCue v. Kansas Dep’t of Human Res., 165 F.3d 

784 (10th Cir. 1999) ................................................................ 

17 

McKennon v. Nashville Banner Publ’g Co., 

513 U.S. 352 (1995) ................................................................ 

15 

McKnight v. General Motors Corp., 908 F.2d 104 

(7th Cir. 1990), cert. denied, 499 U.S. 919 (1991) ............. 

14 

Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th 

Cir.), cert. denied, 528 U.S. 813 (1999) ............................... 

8, 17 

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 

(1986) ........................................................................................ 

16, 23 

Morgan v. Arkansas Gazette, 897 F.2d 945 

(8th Cir. 1990) ......................................................................... 

14 

Newhouse v. McCormick & Co., 110 F.3d 635 

(8th Cir. 1997) ......................................................................... 

18 

Nord v. United States Steel Corp., 758 F.2d 1462 

(11th Cir. 1985) ....................................................................... 

14 

Pals v. Schepel Buick & GMC Truck, Inc., 

220 F.3d 495 (7th Cir. 2000) ................................................. 

17, 19 

Patterson v. American Tobacco Co., 535 F.2d 257 

(4th Cir.), cert. denied, 429 U.S. 920 (1976) ...................... 

13, 14 

Patterson v. McLean Credit Union, 491 U.S. 164 

(1989) ........................................................................................ 11 

Powers v. Grinnell Corp., 915 F.2d 34 (1st Cir. 

1990) ......................................................................................... 15 

Shore v. Federal Express Corp., 777 F.2d 1155 

(6th Cir. 1985) ......................................................................... 

14 

Suggs v. ServiceMaster Educ. Food Mgmt., 

72 F.3d 1228 (6th Cir. 1996) ................................................. 

18 

Teamsters v. Terry, 494 U.S. 558 (1990) ............................ 

14 

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 

1982) ......................................................................................... 14 

Thorne v. City of El Segundo, 802 F.2d 1131 

(9th Cir. 1986) ......................................................................... 14 

VI 

Cases—Continued: Page 

Thurman v. Yellow Freight Sys., Inc., 97 F.3d 

833 (6th Cir. 1996) .................................................................. 

18 

United States v. Burke, 504 U.S. 229 (1992) ............. 

11, 15, 19 

Walsdorf v. Board of Comm’rs, 857 F.2d 1047 

(5th Cir. 1988) ......................................................................... 

14 

Whittlesey v. Union Carbide Corp., 742 F.2d 724 

(2d Cir. 1984) .......................................................................... 

15 

Wildman v. Lerner Stores Corp., 771 F.2d 605 

(1st Cir. 1985) ......................................................................... 

14 

Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 

1998) .............................................................................. 

6, 14, 17, 19 

West v. Gibson, 527 U.S. 212 (1999) ..................................... 

21 

Statutes: 

Civil Rights Act of 1964, Pub. L. No. 88-352, 

Tit. VII, 78 Stat. 253 (42 U.S.C. 2000e et seq.) ................. 

1 

42 U.S.C. 2000e-5(a) .......................................................... 

2 

42 U.S.C. 2000e-5(g) (§ 706(g), 78 Stat. 261) ............ 

passim 

42 U.S.C. 2000e-5(g) (1988) ............................................. 

11 

42 U.S.C. 2000e-5(g)(1) ..................................................... 

13 

42 U.S.C. 2000e-5(f) .......................................................... 

2 

Civil Rights Act of 1991, Pub. L. No. 102-166, 

105 Stat. 1071: 

42 U.S.C. 1981 .................................................................... 

11, 21 

42 U.S.C. 1981 note (§ 2, 105 Stat. 1071) ....................... 

21 

42 U.S.C. 1981a (§ 102, 105 Stat. 1072-1074) ............ 

passim 

42 U.S.C. 1981a(a)(1) ................................. 

1-2, 8, 11, 16, 30a 

42 U.S.C. 1981a(a)(2) ........................................................ 

31a 

42 U.S.C. 1981a(a)(3) ........................................................ 

32a 

42 U.S.C. 1981a(b)(1)-(3) ........................................ 

2, 32a-33a 

42 U.S.C. 1981a(b)(1) ................................................ 

7, 11, 32a 

42 U.S.C. 1981a(b)(2) ................ 

9, 12, 13, 16, 18, 19, 23, 33a 

42 U.S.C. 1981a(b)(3) .......................... 

6, 7, 12, 18, 19, 20, 33a 

42 U.S.C. 1981a(b)(4) ........................................................ 

34a 

42 U.S.C. 1981a(c) ............................................................. 34a 

VII 

Statutes—Continued: Page 

42 U.S.C. 1981a(d)(1) ........................................................ 

2, 34a 

42 U.S.C. 1981a(d)(2) ........................................................ 

35a 

Miscellaneous: 

137 Cong. Rec. (1991): 

p. 13,515 ................................................................................. 

21 

p. 13,516 ................................................................................. 
21 

pp. 13,552-13,553 .................................................................... 
21 

p. 28,637 ................................................................................... 
22 

pp. 28,663-28,664 .................................................................... 
22 

p. 29,046 ................................................................................... 
22 

pp. 29,066-29,067 .................................................................... 
22 

p. 30,661 ................................................................................... 
22 

EEOC, Compl. Man (CCH) § 603, ¶ 2062 (1998) ................. 
19 

EEOC, Enforcement Guidance: Compensatory and 

Punitive Damages Available Under § 102 of the 
Civil Rights Act of 1991 <www.eeoc.gov/docs/ 
damages.html> (effective July 14, 1992) (8 Fair Empl. 
Prac. Man. (BNA) 405:7091 (1992)) .................................... 

12, 23 
H.R. Rep. No. 40, 102d Cong., 1st Sess. (1991): 

Pt. 1 .......................................................................................... 

21, 22 

Pt. 2 .......................................................................................... 
21, 22 

Mack A. Player, Employment Discrimination Law 
(1988) ........................................................................................ 14 

1 Timothy 2:11-12 ...................................................................... 5 

In the Supreme Court of the United States 

No. 00-763 

SHARON B. POLLARD, PETITIONER 

v. 

E.I. DUPONT DE NEMOURS COMPANY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

Title VII of the Civil Rights Act of 1964, Pub. L. No. 
88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.), prohibits 
employment discrimination by both public and private 
employers on the basis of race, color, religion, sex, or 
national origin, and authorizes equitable remedies 
against both public and private employers. The Civil 
Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 
1072-1074 (42 U.S.C. 1981a), authorized, in cases of in- 
tentional discrimination, the additional remedies of 
compensatory damages and (in suits against private 
employers) punitive damages, subject to a cap on the 
total amount of damages awarded. See 42 U.S.C. 

(1) 

2 

1981a(a)(1) and (b)(1)-(3). The Equal Employment 
Opportunity Commission (EEOC) is authorized to 
enforce Title VII against private employers, and 
participated as amicus curiae in the court of appeals. 
The Attorney General is authorized to enforce Title VII 
against public employers. See 42 U.S.C. 1981a(d)(1), 
2000e-5(a) and (f ). This case presents the question 
whether front pay—which makes the plaintiff whole for 
earnings that would have been received had she been 
reinstated immediately after a finding of liability—is an 
equitable remedy when awarded under Title VII, or 
instead a damages remedy subject to the statutory cap. 
The Court’s determination of the proper categorization 
of front pay is likely to affect both the EEOC and the 
Attorney General in their enforcement of Title VII. 

STATUTORY PROVISIONS INVOLVED 

The pertinent provisions of Title VII and the Civil 
Rights Act of 1991—42 U.S.C. 2000e-5(g) and 42 U.S.C. 
1981a, respectively—are set forth in an appendix to this 
brief. App., infra, 29a-35a. 

STATEMENT 

1. Petitioner worked for respondent from 1977 until 
respondent terminated her in 1996. Pet. App. 3a; App., 
infra, 2a, 19a.1 In 1987, petitioner was promoted to the 
position of “operator” in the peroxide department of 
respondent’s chemical plant in Memphis, Tennessee. 
Pet. App. 3a; App., infra, 2a. The district court found 
that “[i]t was common knowledge among the employees 
in the peroxide area that * * * many of the * * * 

1 The petition appendix contains only a portion of the district 
court’s opinion. The opinion is reproduced in full in Appendix A, 
infra. 

3 

men in the area, did not approve of women working in 
peroxide.” App., infra, 5a; see Pet. App. 5a.2 

In February 1994, petitioner agreed to give a talk to 
a group of girls visiting the Memphis plant as part of 
respondent’s participation in the national Take Your 
Daughters to Work Day program. Pet. App. 4a. 
Another operator named Steve Carney strongly ob- 
jected to Take Your Daughters to Work Day and 
instructed all of the men on petitioner’s shift not to eat 
with petitioner, not to share food with her, not to be in 
the break room with her, not to talk to her, and not to 
accept directions from petitioner without first con- 
sulting him. Ibid.; App., infra, 4a-5a. 

In the summer of 1994, Carney, who was in charge of 
the peroxide department’s control room, began setting 
off false alarms in petitioner’s area of the plant. The 
false alarms required petitioner to search a work area 
the size of three city blocks for non-existent pro- 
blems. Pet. App. 6a; App., infra, 8a-9a & n.7. This was 
Carney’s “way of showing that he, a man, was in 
control.” Pet. App. 6a. If a false alarm sounded while 
petitioner was on break cooking her dinner, male 
employees would sometimes turn up the stove to burn 
her food while she searched for a problem. Ibid.; App., 
infra, 8a. Carney also failed to inform petitioner of 
actual alarms, thus creating an appearance that peti- 
tioner was not performing her duties. Pet. App. 6a. 

On approximately seven occasions in 1994 and 1995, 
Carney ordered assistant operators to remove vaporiz- 
ers from peroxide tanks earlier than petitioner had 
instructed, without telling petitioner. Pet. App. 6a-7a. 

2 Several male employees in the peroxide department routinely 
referred to petitioner and other women as “bitches,” “cunts,” “heif- 
ers,” and “split tails.” Pet. App. 5a; App., infra, 5a-6a. 

4 

Early removal of the vaporizers could result in a 
shortfall of peroxide production. App., infra, 9a-10a & 

n.8. When petitioner learned that Carney was ordering 
removal of vaporizers, she spoke with the shift supervi- 
sor, David Swartz, about the problem. Carney blamed 
petitioner, and Swartz took no action. Pet. App. 7a; 
App., infra, 10a-11a. 

During the summer of 1994, someone slashed the 
tires on petitioner’s bicycle while it was parked in the 
peroxide area. Petitioner told Swartz that she sus- 
pected Carney. Carney denied slashing the tires, and 
Swartz did not investigate further. Pet. App. 7a. 

In December 1994, two male employees asked Swartz 
to call a meeting to discuss the men’s treatment of 
petitioner. Pet. App. 7a. Carney was absent from work 
on the day of the meeting, and two male employees 
stated in Swartz’s presence that Carney had encour- 
aged the men not to speak with petitioner. Id. at 7a-8a; 
App., infra, 12a. When Carney returned to work, he 
demanded another meeting. At that meeting, and again 
in Swartz’s presence, Carney “got in [petitioner’s] face” 
and told her “Nobody in this area likes you, you’re here 
all alone, it’s all your own fault.” Pet. App. 8a. When 
petitioner appealed to Swartz, Swartz ended the 
meeting. Ibid. 

The problems continued, and petitioner complained 
to Swartz and to attendees at company “Women’s Net- 
work” meetings. Swartz’s supervisor, Beth Basham, 
attended the Women’s Network meetings. Pet. App. 
8a. Basham acknowledged at trial that she was aware 
of the problems and that she believed petitioner was 
harassed on account of her sex. Yet Basham never 
investigated petitioner’s complaints. Id. at 8a-9a; App., 
infra, 14a-15a, 26a. 

5 

In July 1995, petitioner asked to be transferred to 
another shift. Petitioner was offered a job working 
with a man who had in the past refused to take orders 
from petitioner because she is a woman, and who had 
placed on petitioner’s desk the biblical passage: “A 
woman should learn in quietness and full submission. I 
do not permit a woman to teach or have authority over 
a man, she must be silent.” Pet. App. 10a; id. at 3a-4a; 
see also 1 Timothy 2:11-12. Petitioner declined that 
reassignment and, after discovering a highlighted copy 
of the same Bible verse in her locker, she requested a 
medical leave of absence. Pet. App. 10a. 

After petitioner’s departure, the employees on her 
old shift, including Swartz, held a party with balloons 
and a fish fry to celebrate. Pet. App. 11a. Respondent 
investigated the second Bible verse incident by asking 
the men in the peroxide area (singly or in groups) a 
set of “yes” or “no” questions. When no one admitted 
knowledge of the incident, respondent ended the 
investigation. Id. at 10a-11a; App., infra, 17a. 

After petitioner had been on short-term disability 
leave for six months, respondent, rejecting the opinion 
of a company psychologist who determined that peti- 
tioner could not return to work, scheduled a “return to 
work” meeting. Pet. App. 11a; App., infra, 18a-19a. 
Company managers refused to guarantee that peti- 
tioner would not be placed on a shift with Carney, and 
petitioner refused to return to work under those cir- 
cumstances. Respondent then fired petitioner. Pet. 
App. 11a. 

2. After a bench trial, the district court found that 
respondent subjected petitioner to a hostile work 
environment because of her gender, in violation of Title 

VII. App., infra, 19a-25a. The district court described 
the case as one “of wretched indifference to an em- 

6 

ployee who was slowly drowning in an environment 
that was completely unacceptable, while her employer 
sat by and watched.” Id. at 27a. 

The district court awarded petitioner $107,364 in 
back pay and accrued benefits, $300,000 in compen- 
satory damages, and $252,997 in attorney’s fees. App., 
infra, 27a-28a; Pet. App. 2a. The award of $300,000 in 
compensatory damages was the maximum amount 
allowable under 42 U.S.C. 1981a(b)(3), which estab- 
lishes a statutory cap for compensatory and punitive 
damages awards that ranges from $50,000 for em- 
ployers with between 14 and 101 employees, to $300,000 
for employers (such as respondent) with more than 500 
employees. The district court included an amount for 
front pay within the compensatory damages award. 
See App., infra, 27a-28a n.19.3 The court explained that 
it treated the front pay award as compensatory 
damages because it was required to do so by Hudson v. 
Reno, 130 F.3d 1193, 1204 (6th Cir. 1997), cert. denied, 
525 U.S. 822 (1998). The court stated, however, that 
when front pay was included, the capped damages 
award of $300,000 was “insufficient to compensate 
plaintiff for the psychological damage, pain, and 
humiliation she has suffered, in addition to the loss of a 
lucrative career and secure retirement.” App., infra, 
27a-28a n.19. The district court also noted that the cap 
prevented it from making an additional award of 
punitive damages, even though punitive damages were 
justified “as [respondent] has ‘engaged in a discrimina- 
tory practice with malice or with reckless indifference 

3 See generally Williams v. Pharmacia, Inc., 137 F.3d 944, 953- 
954 (7th Cir. 1998) (“Front pay gives the employee the earnings 
she would have received had she been reinstated to her old job 
[after a finding of liability].”). 

7 

to the federally protected rights of [petitioner].’ ” Id. at 
28a n.19 (quoting 42 U.S.C. 1981a(b)(1)). 

3. The court of appeals affirmed. The court rejected 
respondent’s claim that the abuses petitioner suffered 
did not amount to sex-based harassment, finding “over- 
whelming” record evidence that petitioner suffered 
“severe and pervasive” harassment based on anti- 
female animus. Pet. App. 12a-14a. The record also sup- 
ported the district court’s conclusion that respondent 
“did not [make] a ‘good faith’ effort to remedy the 
situation.” Id. at 15a-16a. The court of appeals rejected 
respondent’s argument that the abuses suffered by 
petitioner were retaliation for her complaints to man- 
agement, rather than sexual harassment. Id. at 16a. 
And, the court of appeals concluded that petitioner was 
not required to prove economic disparate treatment in 
order to recover under Title VII, given that she had 
established a hostile work environment based upon 
gender. Id. at 16a-17a. 

The court of appeals found no merit in respondent’s 
allegation of judicial bias. Pet. App. 18a-20a. The 
“anger and moral outrage” displayed by the district 
court late in the trial “stemmed from the conclusions 
which the judge had rightly formed as part of his 
factfinding duty” during the presentation of evidence. 
Id. at 19a-20a. Finally, the court of appeals affirmed 
the award of attorney’s fees to petitioner. Id. at 20a. 

The court of appeals rejected petitioner’s cross- 
appeal challenging the district court’s application of 
Section 1981a(b)(3)’s cap on compensatory and punitive 
damages to front pay, which reduced the amount of 
compensatory damages awarded and precluded puni- 
tive damages. Pet. App. 21a-22a. The court of appeals 
stated that it agreed with petitioner, with the EEOC as 
amicus curiae, and with all other courts of appeals to 

8 

consider the issue, that front pay is not subject to the 
cap. Ibid. (citing, inter alia, Martini v. Federal Nat’l 
Mortgage Ass’n, 178 F.3d 1336, 1348-1349 (D.C. Cir. 
1999), cert. dismissed, 528 U.S. 1147 (2000); Medlock v. 
Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir.), cert. 
denied, 528 U.S. 813 (1999); Kramer v. Logan County 
Sch. Dist. No. R-1, 157 F.3d 620, 625-626 (8th Cir. 
1998)). The court of appeals determined, however, that 
its “hands are tied” by the earlier panel opinion in 
Hudson v. Reno. Pet. App. 22a. In light of Hudson, the 
court of appeals affirmed the district court’s ruling that 
front pay must be included in the capped $300,000 
damages amount. Ibid.4 

The court of appeals denied cross-petitions for 
rehearing or rehearing en banc. Pet. App. 49a-50a. 

SUMMARY OF ARGUMENT 

1. Before 1991, Title VII authorized only equitable 
relief pursuant to 42 U.S.C. 2000e-5(g). The Civil 
Rights Act of 1991 (1991 Act), however, made compen- 
satory and punitive damages available under specified 
circumstances, “in addition to any relief ” previously 
authorized by Section 2000e-5(g). 42 U.S.C. 1981a(a)(1). 
Congress capped the amount of compensatory and 
punitive damages that could be awarded under the 1991 
Act, but defined “compensatory damages” to exclude 
“any * * * type of relief authorized under section 

4 The court of appeals also rejected petitioner’s arguments, not 
presented in the petition for certiorari, that Section 1981a’s cap on 
compensatory and punitive damages violates the constitutional 
doctrine of separation of powers and denies certain plaintiffs equal 
protection. See Pet. App. 22a-24a. The court of appeals reversed 
the district court, however, with respect to its grant of summary 
judgment for respondent on petitioner’s claim of intentional inflic- 
tion of emotional distress. Id. at 24a-26a. 

9 

[2000e-5(g)].” 42 U.S.C. 1981a(b)(2). Accordingly, the 
1991 Act’s cap on damages does not limit a court’s 
ability to award equitable relief under Section 
2000e-5(g). 

2. Congress drafted the 1991 Act against the 
background of consistent judicial rulings that front 
pay is a permissible equitable remedy under Section 
2000e-5(g). When Congress stated in 42 U.S.C. 
1981a(b)(2) that compensatory damages “shall not 
include * * * any * * * type of relief authorized 
under section [2000e-5(g)],” it incorporated the estab- 
lished understanding that front pay was one such 
authorized type of relief. The 1991 Act, moreover, did 
not amend the language of Section 2000e-5(g) that 
authorizes front pay. All courts of appeals to consider 
the issue, other than the Sixth Circuit, have held that 
front pay remains available as an equitable remedy 
after the 1991 amendments. 

The Sixth Circuit’s conclusion in Hudson v. Reno, 130 
F.3d 1193 (1997), cert. denied, 525 U.S. 822 (1998), that 
front pay is a form of compensatory damages subject to 
the 1991 Act’s cap on damages, was incorrect. In 
reaching that conclusion, the Sixth Circuit failed to give 
effect to Congress’s explicit statement, in Section 
1981a(b)(2), that the capped compensatory damages 
awarded under Section 1981a do not include equitable 
remedies authorized by Section 2000e-5(g). All other 
courts of appeals to consider Hudson’s reasoning have 
rejected it, and even the Sixth Circuit panel in this case 
concurred that Hudson reflects a mistaken application 
of the 1991 Act. See Pet. App. 22a. 

3. The committee reports and legislative debates on 
the 1991 Act confirm that Congress intended to supple- 
ment the equitable remedies historically available 
under Title VII, not to limit them. During the debates, 

10 

legislators specifically noted that front pay was an 
existing Title VII remedy that would not be treated as 
a species of “compensatory damages” under the new 
law. Construing the 1991 amendments as placing a new 
restriction on the pre-existing front pay remedy would 
frustrate Congress’s objectives of making victims of 
employment discrimination more nearly whole, enhanc- 
ing the deterrent effect of Title VII, and encouraging 
private enforcement. Indeed, that reading of the 1991 
law would make some victims of intentional employ- 
ment discrimination worse off than they would have 
been if Congress had not authorized supplemental 
damages remedies. 

Consistent with the text and legislative history of the 
1991 Act, the EEOC determined in 1992 that Section 
1981a’s cap on damages does not apply to front pay 
awards. The EEOC has consistently adhered to that 
construction of the 1991 Act, and its interpretation 
provides additional guidance for the Court. 

ARGUMENT 

FRONT PAY AWARDS IN TITLE VII CASES ARE NOT 
SUBJECT TO THE CAP ON COMPENSATORY AND 
PUNITIVE DAMAGES ESTABLISHED BY 42 U.S.C. 
1981a 

A. Equitable Remedies That Are Available Under 

42 U.S.C. 2000e-5(g) Are Not Subject To The Cap On 

Damages 

Before 1991, the statutory remedies for employment 
discrimination based on race, color, religion, sex, or 
national origin in violation of Title VII did not include 
compensatory or punitive damages. Section 706(g) of 
the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 
Stat. 261, which is codified as amended as 42 U.S.C. 
2000e-5(g), limited available remedies to back pay, 

11 

injunctions, and other equitable relief. See United 
States v. Burke, 504 U.S. 229, 238 (1992).5 Title VII 
“focuse[d] on ‘legal injuries of an economic character,’ ” 
and the corresponding remedies consisted of restoring 
victims of discrimination “to the wage and employment 
positions they would have occupied absent the unlawful 
discrimination.” Id. at 239 (quoting Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418 (1975)). 

The 1991 Act made “a marked change” in the scope of 
the injury redressable through Title VII. Burke, 504 
U.S. at 241 n.12. The 1991 Act added a new provision, 
42 U.S.C. 1981a, that allowed a successful Title VII 
plaintiff who is not eligible to recover under 42 U.S.C. 
19816 to recover, “in addition to any relief ” previously 
authorized by Section 2000e-5(g), (1) compensatory 
damages in cases of intentional discrimination (but not 
cases of disparate impact), and (2) punitive damages in 
cases of malice or reckless indifference to federally 
protected rights by a private employer. 42 U.S.C. 
1981a(a)(1) and (b)(1); see generally Landgraf v. USI 

5 Section 2000e-5(g) provided before 1991, and provides today, 
that in the event of a successful claim, 

the court may enjoin the respondent from engaging in such 

unlawful employment practice, and order such affirmative 
action as may be appropriate, 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. 

App., infra, 29a; see 42 U.S.C. 2000e-5(g) (1988). 

6 Section 1981 authorizes compensatory and punitive damages 
for race discrimination that is actionable under that provision. See 
generally Patterson v. McLean Credit Union, 491 U.S. 164, 175- 
188 (1989) (discussing scope of Section 1981 in employment 
context); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 
459-460 (1975). 

12 

Film Prods., 511 U.S. 244, 252-255 (1994) (discussing 
1991 Act’s “major expansion in the relief available to 
victims of employment discrimination”); Kolstad v. 
American Dental Ass’n, 527 U.S. 526, 533-534 (1999) 
(same). 

In authorizing the new damages remedies, Congress 
placed a cap on the amount of compensatory and puni- 
tive damages a plaintiff could recover. 42 U.S.C. 
1981a(b)(3). That cap limits “[t]he sum of the amount of 
compensatory damages awarded under [Section 1981a] 
for future pecuniary losses, emotional pain, suffering, 
inconvenience, mental anguish, loss of enjoyment of life, 
and other nonpecuniary losses, and the amount of puni- 
tive damages awarded under [Section 1981a]” to 
between $50,000 and $300,000, depending upon the size 
of the employer’s workforce. 

42 U.S.C. 1981a(b)(3).7 
At the same time, Congress expressly provided that 
the availability of compensatory damages, subject to 
the cap, would not affect or overlap the availability 
of traditional equitable remedies under Section 
2000e-5(g).8 Section 1981a(b)(2), entitled “Exclusions 
from compensatory damages,” states: “Compensatory 
damages awarded under this section shall not include 
backpay, interest on backpay, or any other type of relief 
authorized under section 706(g) of the Civil Rights Act 

7 Although damages recovery for future pecuniary losses is 
subject to the cap established by Section 1981a(b)(3), damages 
recovery for past pecuniary losses is not. See generally, EEOC, 
Enforcement Guidance: Compensatory and Punitive Damages 
Available Under § 102 of the Civil Rights Act of 1991, at 4-5 
<http://www.eeoc.gov/docs/damages.html> (effective July 14, 1992) 
(reprinted in 8 Fair Empl. Prac. Man. (BNA) 405:7091 (1992)). 

8 There was no issue of overlap between punitive damages and 
the “make whole” equitable relief available under Section 
2000e-5(g). 

13 

of 1964 (42 U.S.C. 2000e-5(g)).” 42 U.S.C. 1981a(b)(2). 
Accordingly, the cap on certain damages awarded 
under Section 1981a does not affect a court’s ability to 
award “any other type of relief ” that is available as an 
equitable remedy under Section 2005e-5(g). 

B. Front Pay Is Authorized Under Section 2000e-5(g) 

Front pay is a type of equitable relief available to 
plaintiffs in Title VII cases under Section 2000e-5(g). 
Front pay therefore is exempt from the cap on com- 
pensatory and punitive damages awarded under Sec- 
tion 1981a, contrary to the holdings of the district court 
and the court of appeals in this case. 

1. Front pay commonly is awarded in Title VII cases 
when the court determines that reinstatement—an 
equitable remedy specifically authorized by Section 
2000e-5(g)(1)—is not viable for a reason such as ex- 
treme hostility between the plaintiff and the employer 
or its workers, or psychological injuries suffered by the 
plaintiff as a result of the discrimination.9 

Front pay is 
also awarded to cover wages foregone during the period 
between an order of reinstatement and actual reinstate- 
ment, which may be prolonged if, for example, no 
suitable position is vacant. 

10 By 1991, every court of 
appeals to rule on the issue had approved front pay 

9 See, e.g., Gotthardt v. National R.R. Passenger Corp., 191 
F.3d 1148, 1155-1156 (9th Cir. 1999) (medical and psychological 
condition); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1347 
(9th Cir. 1987) (hostility), cert. denied, 484 U.S. 1047 (1988); 
Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (10th Cir. 
1980) (same). 

10 See, e.g., Anderson v. Group Hospitalization, Inc., 820 F.2d 
465, 473 (D.C. Cir. 1987); Patterson v. American Tobacco Co., 535 
F.2d 257, 267-270 (4th Cir.), cert. denied, 429 U.S. 920 (1976). 

14 

awards under Section 2000e-5(g), or held more 
generally that front pay in lieu of reinstatement is an 
equitable remedy. 

11 Those courts typically reasoned 
that front pay “is the monetary equivalent of the 
equitable remedy of reinstatement,” and, when 
awarded as a substitute for reinstatement, is itself an 
equitable remedy. Blum v. Witco Chem. Corp., 829 
F.2d 367, 383 (3d Cir. 1987); see Teamsters v. Terry, 494 
U.S. 558, 571 (1990) (“a monetary award incidental to or 
intertwined with injunctive relief may be equitable” in 
nature) (internal quotation marks omitted). 

12 

11 See, e.g., Thompson v. Sawyer, 678 F.2d 257, 292 (D.C. Cir. 
1982); Wildman v. Lerner Stores Corp., 771 F.2d 605, 615-616 (1st 
Cir. 1985) (applying Age Discrimination in Employment Act 
(ADEA), but relying on Title VII case law); Barbano v. Madison 
County, 922 F.2d 139, 146-147 (2d Cir. 1990); Blum v. Witco Chem. 
Corp., 829 F.2d 367, 383 (3d Cir. 1987); Patterson, 535 F.2d at 269 
(4th Cir.); Walsdorf v. Board of Comm’rs, 857 F.2d 1047, 1054 (5th 
Cir. 1988); Shore v. Federal Express Corp., 777 F.2d 1155, 1159- 
1160 (6th Cir. 1985); Morgan v. Arkansas Gazette, 897 F.2d 945, 
954 (8th Cir. 1990) (ADEA case); Thorne v. City of El Segundo, 802 
F.2d 1131, 1137 (9th Cir. 1986); Fitzgerald, 624 F.2d at 957 (10th 
Cir.); Nord v. United States Steel Corp., 758 F.2d 1462, 1473-1474 
(11th Cir. 1985); see also McKnight v. General Motors Corp., 908 
F.2d 104, 116-117 (7th Cir. 1990) (reserving question of availability 
of front pay under Title VII), cert. denied, 499 U.S. 919 (1991). 
Commentators assumed as well that Title VII authorized front 
pay. See, e.g., Mack A. Player, Employment Discrimination Law 
§ 5.66, at 438 (1988) (stating that “the court should order” front pay 
covering the period “until the defendant offers substantially equi- 
valent employment”). 

12 In accordance with the plaintiff ’s duty to mitigate damages, 
courts calculate front pay by determining the present value of 
future earnings from the job to which the plaintiff ordinarily would 
have been reinstated, less the earnings the employee is receiving 
or would be expected to receive from a new job. See Williams v. 
Pharmacia, Inc., 137 F.3d 944, 954 (7th Cir. 1998); see also 

15 

Decisions of this Court confirm that front pay was 
regarded as an available remedy under Section 
2000e-5(g) before the 1991 amendments. The Court 
noted in at least two cases that, before passage of the 
1991 Act, front pay might be awarded as an equitable 
remedy under Section 2000e-5(g). Burke, 504 at 239 n.9 
(“Some courts have allowed Title VII plaintiffs who 
were wrongfully discharged and for whom reinstate- 
ment was not feasible to recover ‘front pay’ or future 
lost earnings.”); Franks v. Bowman Transp. Co., 424 
U.S. 747, 777 n.38 (1976) (recognizing “the possibility of 
an award of monetary damages (sometimes designated 
‘front pay’)”); see id. at 781 (Burger, C.J., concurring in 
part and dissenting in part) (“An award such as ‘front 
pay’ could replace the need for competitive-type 
seniority relief.”); see also McKennon v. Nashville 
Banner Publ’g Co., 513 U.S. 352, 360-362 (1995) 
(suggesting that front pay would sometimes be 
appropriate equitable relief under the ADEA, albeit 
not when the employee has engaged in wrongdoing). 
More broadly, the Court had held that Section 
2000e-5(g) granted the courts “full equitable powers” 
to make whole those persons who suffer injuries on 
account of prohibited employment discrimination. 

Barbour v. Merrill, 48 F.3d 1270, 1279-1280 (D.C. Cir. 1995) 
(discussing factors relevant to establishing amount of front pay 
award), cert. granted in part, 516 U.S. 1086, and dismissed, 516 
U.S. 1155 (1996); Cassino, 817 F.2d at 1347 (reversing front pay 
award covering full period from trial to expected retirement). As a 
practical matter, therefore, front pay is awarded in lieu of rein- 
statement “where the factfinder can reasonably predict that the 
plaintiff has no reasonable prospect of obtaining comparable alter- 
native employment.” Powers v. Grinnell Corp., 915 F.2d 34, 42-43 
(1st Cir. 1990) (quoting Whittlesey v. Union Carbide Corp., 742 
F.2d 724, 729 (2d Cir. 1984)). 

16 

Albemarle Paper Co., 422 U.S. at 418. Congress’s grant 
of “broad equitable discretion” thus empowered district 
courts “to fashion such relief as the particular 
circumstances of a case may require to effect 
restitution,” including relief related to future earnings. 
Franks, 424 U.S. at 763-766 & n.21. 

When Congress stated in Section 1981a(b)(2) that 
compensatory damages “shall not include” any type of 
equitable relief authorized under Section 2000e-5(g), it 
legislated against that uniform understanding that 
front pay was an available equitable remedy. “[W]here, 
as here, Congress adopts a new law incorporating sec- 
tions of a prior law, Congress normally can be pre- 
sumed to have had knowledge of the interpretation 
given to the incorporated law, at least insofar as it 
affects the new statute.” Lorillard v. Pons, 434 U.S. 
575, 581 (1978); see Cannon v. University of Chicago, 
441 U.S. 677, 696-698 (1979). The presumption that 
Congress knows the law is particularly apt in the case 
of the 1991 Act, because the Act was in large part a 
response to judicial decisions. See Landgraf, 511 U.S. 
at 250-251 (discussing decisions and congressional 
response); Cannon, 441 U.S. at 697-698. If Congress 
had not agreed with the courts of appeals that front 
pay is a permissible equitable remedy under Section 
2000e-5(g), it surely would have addressed the issue 
when making direct reference to the existing remedies. 
Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 792, 
804 n.4 (1998) (holding that “the force of precedent” 
associated with Meritor Savings Bank, FSB v. Vinson, 
477 U.S. 57 (1986), was “enhanced” due to Congress’s 
failure to overturn that decision in the 1991 Act). 

Congress’s establishment in Section 1981a of new 
damages remedies “in addition to any relief [previously] 
authorized,” 42 U.S.C. 1981a(a)(1), did not alter the 

17 

availability of front pay under Section 2000e-5(g). Just 
as “the new compensatory damages provision of the 
1991 Act is ‘in addition to,’ and does not replace or 
duplicate, the back-pay remedy allowed under prior 
law,” Landgraf, 511 U.S. at 253, so too the new dam- 
ages provision is in addition to, and does not replace or 
duplicate, the front-pay remedy also allowed under 
prior law. See pp. 20-23, infra (discussing legislative 
history of 1991 Act). All courts of appeals to consider 
the issue, aside from the Sixth Circuit, accordingly have 
continued to approve awards of front pay as an equita- 
ble remedy under Section 2000e-5(g), notwithstanding 
the availability of compensatory damages under Section 
1981a. 

13 

2. The court of appeals in this case agreed with our 
analysis, but Hudson v. Reno, 130 F.3d 1193 (6th Cir. 
1997), cert. denied, 525 U.S. 822 (1998), compelled it to 
treat front pay as a compensatory damages remedy 
subject to the cap on damages. Pet. App. 21a-22a. 
Hudson, however, misapplied Section 1981a—as every 
other circuit to consider the issue has held. 

14 

13 See, e.g., Martini v. Federal Nat’l Mortgage Ass’n, 178 F.3d 
1336, 1348-1349 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 
(2000); Lussier v. Runyon, 50 F.3d 1103, 1107-1108 (1st Cir.), cert. 
denied, 516 U.S. 815 (1995); Hadley v. VAM P T S, 44 F.3d 372, 
375-376 (5th Cir. 1995); Williams, 137 F.3d at 952-954 (7th Cir.); 
Gotthardt, 191 F.3d at 1153-1154 (9th Cir.); McCue v. Kansas Dep’t 
of Human Res., 165 F.3d 784, 791-792 (10th Cir. 1999); EEOC v. 
W&O, Inc., 213 F.3d 600, 618-619 (11th Cir. 2000). 

14 See Martini, 178 F.3d at 1348-1349 (D.C. Cir.); Pals v. Schepel 
Buick & GMC Truck, Inc., 220 F.3d 495, 499-500 (7th Cir. 2000); 
Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620, 625-626 
(8th Cir. 1998); Gotthardt, 191 F.3d at 1154 (9th Cir.); Medlock v. 
Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir.), cert. denied, 528 
U.S. 813 (1999); W&O, Inc., 213 F.3d at 619 n.10 (11th Cir.). 

18 

The Hudson panel acknowledged “that prior to the 
enactment of the 1991 Civil Rights Act, many courts, 
including the Sixth Circuit, routinely awarded ‘front 
pay’ as an alternative to reinstatement in Title VII 
actions.” 130 F.3d at 1203. The recognition that front 
pay was established as a remedy available under Sec- 
tion 2000e-5(g) when Congress drafted the 1991 amend- 
ments should have ended the court of appeals’ inquiry 
into whether front pay is subject to the cap on 
compensatory and punitive damages. 

The Hudson panel nevertheless reasoned that the 
1991 amendments required it to decide whether front 
pay is better characterized as “compensatory damages 
awarded * * * for future pecuniary losses,” and thus 
subject to the cap under Section 1981a(b)(3), or as equi- 
table relief exempt from the cap pursuant to Section 
1981a(b)(2). See 130 F.3d at 1203. The panel concluded 
that front pay can be described as compensatory 
damages for future pecuniary losses, and, indeed, the 
amount of front pay awarded under other statutes is 
sometimes determined by the jury. Id. at 1203-1204. 

15 

On that basis, the panel concluded that front pay should 
be subject to the damages cap. Ibid. 

15 Lower courts disagree whether a jury or the judge should 
determine the appropriate amount of front pay in some dis- 
crimination contexts. See Newhouse v. McCormick & Co., 110 
F.3d 635, 642-643 (8th Cir. 1997) (discussing cases in ADEA con- 
text). Although the Hudson panel cited an earlier Title VII case 
of the Sixth Circuit when categorizing front pay as a damages 
remedy, 130 F.3d at 1204 (citing Suggs v. ServiceMaster Educ. 
Food Mgmt., 72 F.3d 1228 (6th Cir. 1996)), Sixth Circuit precedent 
was clear, before Hudson, that front pay is an equitable remedy in 
Title VII cases. See Thurman v. Yellow Freight Sys., Inc., 97 F.3d 
833, 835 (6th Cir. 1996). 

19 

The short answer to Hudson’s reasoning is that 
Congress did not impose a cap on all remedies that can 
be deemed “legal” rather than “equitable.” Congress 
instead excluded from the cap all pre-existing remedies 
available under Title VII, however classified. Section 
1981a(b)(2) expressly states that “[c]ompensatory dam- 
ages awarded under [Section 1981a] shall not include 

* * * any * * * type of relief authorized under 
[Section 2000e-5(g)].” Because front pay was (and is) an 
established form of equitable relief under Section 
2000e-5(g), Section 1981a(b)(2) excludes it from the 
category of “compensatory damages” that may be 
awarded, subject to the cap, under Section 1981a. 

The Hudson panel also suggested that if “compensa- 
tory damages awarded * * * for future pecuniary 
losses,” as used in Section 1981a(b)(3), did not include 
front pay, the phrase “future pecuniary losses” would 
be meaningless because “front pay has always been the 
heart of ‘future pecuniary losses’ in discrimination 
suits.” 130 F.3d at 1204. But as the Seventh Circuit 
recently noted, “future pecuniary losses” can include, 
for example, future medical expenses such as mental 
health treatments. Pals v. Schepel Buick & GMC 
Truck, Inc., 220 F.3d 495, 500 (2000). “Future pecu- 
niary losses” compensable under Section 1981a also 
may include expenses associated with taking a new job 
(such as job-search and moving expenses) and pe- 
cuniary losses associated with reputational harm the 
plaintiff suffered as a result of discrimination. EEOC 
Compl. Man. (CCH) § 603, ¶ 2062, at 2070 (1998); 
Williams v. Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 
1998); see also Burke, 504 U.S. at 239 (noting that 
before 1991, Title VII did not “purport[] to recompense 
a Title VII plaintiff for * * * harm to reputation, or 
other consequential damages (e.g., a ruined credit 

20 

16 Section 1981a thus makes perfect sense 
when construed as leaving the front pay remedy 
unaffected. 

C. The Legislative History of the 1991 Act And EEOC 

Guidance Further Support The Conclusion That Front 

Pay Awards Are Not Subject To The Damages Cap 

1. Applying the damages cap to limit front pay 
would be inconsistent with “Congress’ desire to afford 
victims of discrimination more complete redress for 
violations of [Title VII]” than Section 2000e-5(g) allows. 
Landgraf, 511 U.S. at 282. When the front pay 
necessary to make a successful plaintiff whole exceeds 
the damages cap—which can be as low as $50,000, see 
42 U.S.C. 1981a(b)(3)—applying the cap to front pay 
could well leave the victim worse off under the 1991 Act 
than under prior law: front pay would be reduced 
below the level that provides equitable relief, and 
Section 1981a would bar punitive damages and most 
compensatory damages. 

17 Excluding front pay from the 
scope of compensatory damages thus is critical to 
ensuring that the 1991 Act in fact provides “additional 
remedies” to “deter unlawful harassment and inten- 
tional discrimination in the workplace.” 1991 Act, § 2, 
105 Stat. 1071 (reprinted in 42 U.S.C. 1981 note). 

16 The facts of this case illustrate the point. Petitioner testified 
that, as a result of harassment while working for respondent, she 
suffered from “nightmares, fear of crowds, nausea, anxiety, and 
sleeplessness.” App., infra, 24a. Petitioner was diagnosed as hav- 
ing post-traumatic stress disorder. Ibid. Future expenses associ- 
ated with treating those conditions properly would be recovered as 
compensatory damages for future pecuniary losses, subject to the 
statutory cap. 

17 It is theoretically possible, but far from certain, that newly 
available but uncapped compensatory damages could make up the 
difference. See p. 12 & n.7, supra. 

rating).”). 

21 

Committee reports on the 1991 bill note that, 
whereas victims of intentional employment discrimina- 
tion based on race could recover compensatory dam- 
ages under 42 U.S.C. 1981, victims of intentional em- 
ployment discrimination based on gender or religion 
could not recover for out-of-pocket expenses, such as 
medical bills, resulting from illegal harassment. H.R. 
Rep. No. 40, 102d Cong., 1st Sess. Pt. 1, at 64-65 (1991) 
(House Education and Labor Comm.); id. Pt. 2, at 24-25 
(House Judiciary Comm.). The committees found “a 
compelling need” for damages remedies “in addition to 
the equitable remedies” that already were available, in 
order to make victims of gender or religious dis- 
crimination whole, to provide appropriate deterrence, 
and to encourage private enforcement of Title VII. Id. 
Pt. 1, at 70; id. Pt. 2, at 28, 29. There is no indication 
that when legislators endorsed additional remedies to 
benefit victims of discrimination, deter violations of 
Title VII, and improve enforcement, they intended to 
reduce equitable awards that would otherwise be 
available under Section 2000e-5(g). To the contrary, the 
House Judiciary Committee indicated that equitable 
remedies were “not affected” by the availability of 
damages. Id. Pt. 2, at 29; see also West v. Gibson, 527 
U.S. 212, 219-220 (1999) (noting legislators’ stated 
intent to create a new remedy in order to help make 
victims whole). 

Legislators, moreover, clearly indicated that front 
pay should be deemed a form of pre-existing equitable 
relief exempt from the damages cap. As initially passed 
by the House, the 1991 amendments provided that com- 
pensatory damages would not include “backpay or any 
interest thereon.” H.R. Rep. No. 40, supra, Pt. 1, at 12 
(proposed Section 206 of 1991 Act); see id. Pt. 1, at 74 

22 

18 The Senate added the further 
proviso that compensatory damages would not include 
“any other type of relief authorized under” Section 
2000e-5(g). 137 Cong. Rec. 28,663-28,664, 29,066-29,067 
(1991) (introduction and passage of Danforth/Kennedy 
Amendment). Senator Kennedy, the lead co-sponsor of 
the Senate amendment, explained that, under the 
Senate amendment, front pay would be treated as 
equitable relief rather than compensatory damages. Id. 
at 28,637 (“Compensatory damages do not include 
backpay, interest on backpay, or any other type of relief 
authorized under Section 706(g) of the Civil Rights Act 
of 1964, including front pay.”) (emphasis added). 

n.71; id. Pt. 2, at 29. 

19 

Interpretive memoranda placed in the record of the 
congressional debates likewise state that front pay 
would not be treated as compensatory damages under 
the 1991 Act. Id. at 29,046 (Senate sponsors’ memoran- 
dum); id. at 30,661 (interpretive memorandum of Rep. 
Edwards, noting that “Damages awarded under section 

18 As passed by the House before Senate consideration, the 1991 
Act capped punitive damages, but not compensatory damages. See 
137 Cong. Rec. 13,515, 13,516, 13,552-13,553 (1991) (introduction 
and passage of Brooks substitute containing punitive damages 
cap). In the House bill, the exclusion of back pay and interest from 
the scope of compensatory damages served solely to prevent 
plaintiffs from recovering duplicative back pay and compensatory 
damages for the same injury. See H.R. Rep. No. 40, supra, Pt. 1, 
at 74 n.71; id. Pt. 2, at 29. When the Senate applied the damages 
cap to compensatory damages, the provision distinguishing com- 
pensatory damages from existing remedies served to define the 
scope of the damages cap as well. 

19 Legislators who participated in debates on the 1991 Act ad- 
mittedly made some “frankly partisan” statements about certain 
hotly-contested aspects of the law. Landgraf, 511 U.S. at 262. 
There was no disagreement, however, about the continued availa- 
bility of front pay, over and above the new damages remedies. 

23 

[1981a] cannot include remedies already available under 
Title VII, including back pay, the interest thereon, 
front pay, or any other relief authorized under Title 

VII.”) (emphasis added). 

2. Citing the legislative history discussed above as 
well as the language of Section 1981a(b)(2), the EEOC 
determined in 1992 that front pay is an equitable 
remedy under Section 2000e-5(g), and is not subject 
to the cap on compensatory and punitive damages. 
EEOC, Enforcement Guidance: Compensatory and 
Punitive Damages Available Under § 102 of the Civil 
Rights Act of 1991, at 13 n.9 & accompanying text 
(effective July 14, 1992). That contemporaneous inter- 
pretation, developed and consistently applied by the 
agency with primary responsibility for enforcing Title 
VII, “constitute[s] a body of experience and informed 
judgment to which courts and litigants may properly 
resort for guidance.” Meritor Sav. Bank, 477 U.S. at 65 
(quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141- 
142 (1976)). Accordingly, the EEOC’s guidance pro- 
vides additional grounds for holding that front pay is 
not subject to the cap on compensatory and punitive 
damages in an action under Title VII. 

24 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

GWENDOLYN YOUNG REAMS 

Associate General Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

CAROLYN L. WHEELER 

Assistant General Counsel 

CAREN I. FRIEDMAN 

Attorney 
Equal Employment 

Opportunity Commission 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 

General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

DENNIS J. DIMSEY 
JENNIFER LEVIN 

Attorneys 

FEBRUARY 2001 

APPENDIX A 

UNITED STATES DISTRICT COURT 
W.D. TENNESSEE, WESTERN DIVISION 

No. 95-3010 M1/V 

SHARON B. POLLARD, PLAINTIFF 

v. 

E.I. DUPONT DE NEMOURS, INC., DEFENDANT 

Aug. 20, 1998 

MEMORANDUM OPINION AND ORDER 

MCCALLA, District Judge. 

Plaintiff, Sharon Pollard, brought this suit against 
her former employer, alleging that she had been 
subjected to a hostile work environment because of her 
gender, in violation of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). A non- 
jury trial was held in this matter on October 14, 15, 16, 
and 24, and November 3 and 4 of 1997. For the reasons 
set forth below, the Court finds that plaintiff was 
subjected to a hostile work environment because of her 
gender, in violation of Title VII, and judgment is 

ENTERED in favor of plaintiff. 

(1a) 

2a 

FINDINGS OF FACT 

Plaintiff began her employment with defendant in 
1977 as a utility worker in the utility pool. She was 
promoted to the position of assistant operator (“AO”) in 
the oxone flouride area in 1978, and transferred to an 
AO position in the hydrogen peroxide area in 1979. In 
1987, plaintiff was promoted to the position of operator 
in the hydrogen peroxide area. While plaintiff was 
working as an operator in peroxide, only one other 
woman was in an operator position in that area, and 
only two of the assistant operators were female. All of 
the other operators and assistant operators in the 
peroxide area were male.1 

Plaintiff initially worked as an operator on “C” shift 
from 1987 to 1992. Each shift has three operators: the 
control room operator (or operator # 1), operator # 2, 
and operator # 3. Each operator has separate duties on 
the shift, and none of the operators is superior in rank 
to the others. The control room operator works in the 
control room, the # 2 operator works the south side of 
the area, and the # 3 operator works in the laboratory 
and in the water building. The three AOs that are 
assigned to each shift take direction from the operators. 
While plaintiff was working as the control room 
operator on “C” shift, an incident occurred during 
which an AO, Rory Bricco, refused to take direction 
from plaintiff. Mr. Bricco informed plaintiff that he 

1 Based on testimony at trial, the Court concludes that there 
are four different shifts (“A”, “B”, “C”, and “D”), with approxi- 
mately seven people on each shift. See Testimony of Mark Cobb 
(“Cobb’s Test.”), Trial Transcript (“Tr.”) at 240. Accordingly, of 
the approximately twenty-eight employees on shifts in the perox- 
ide area, only four were women. 

3a 

could not take direction from a woman, and placed 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.”2 Plaintiff subsequently 
transferred to a # 2 operator position on “A” shift in 
1992. 

In 1994, plaintiff had moved from the # 2 operator 
position to the # 3 operator position on “A” shift in the 
peroxide area. The other members of her shift were 
Steve Carney, Jerry Lee, Joey Moody, David Walker, 
and Mark Cobb. Carney was the control room operator, 
Lee was the # 2 operator, and Cobb, Moody, and 
Walker were the three AOs on the shift. The shift 
supervisor at that time was David Swartz. 

During 1992 and 1993, plaintiff and all of the other 
members of “A” shift got along well. Many of the 
witnesses testified that they viewed the shift as their 
“extended family.” Members of the shift would cook 
and eat their meals together in the break room,3 

2 The Court notes that this event occurred outside of the 
relevant time period in this case, which is from December 1994 to 
December 1995, and thus cannot form a basis for liability on the 
part of defendant. Because allegations involving this same Bible 
verse are properly before the Court, however, this event is 
included as context, as the Court finds that the fact that plaintiff 
had been previously exposed to this Bible verse while working in 
the peroxide area contributed to the intensity of her reaction when 
she saw it for the second time. 

3 There were three separate eight hour shifts in the peroxide 
area: the 8:00 a.m. to 4:00 p.m. shift, the 4:00 p.m. to 12:00 midnight 
shift, and the 12:00 midnight to 8:00 a.m. shift. The employee 
break room included a small kitchen area with a stove, refrigera- 
tor, and microwave, and, particularly on the evening and midnight 

4a 

and would talk to each other regularly about their lives 
outside of work. 

In February of 1994, however, the congenial atmos- 
phere on “A” shift began to change. At that time, 
DuPont announced that it would be taking part, for the 
first time, in the nationally recognized “Take Your 
Daughters to Work Day” (“TYDTWD”) in April of that 
year. Plaintiff, as one of two female operators in the 
entire peroxide area, was asked to give a talk about her 
job to some of the girls coming to visit the plant on that 
day, and she agreed to do so. A number of the men on 
“A” shift, particularly Steve Carney and Jerry Lee, 
were against TYDTWD, and made their displeasure 
with DuPont’s decision to take part in this event widely 
known. A number of other men in peroxide, and 
throughout the plant, were against DuPont’s participa- 
tion as well. See Testimony of Jerry Lee (“Lee’s 
Test.”), Tr. at 495. One of these men, Paul Lucas, sent 
an email out to everyone in the plant regarding 
TYDTWD, referring to the event as “horse malarky.” 

Plaintiff had discussions with both Steve Carney and 
Jerry Lee regarding her participation in TYDTWD, 
and both men made clear that they were against it. 
Testimony of Sharon Pollard (“Pollard’s Test.”), Tr. at 
627-28. Subsequent to those discussions, the atmos- 
phere on the shift began to change. All of the men on 
the shift, with the exception of Mark Cobb, stopped 
eating with plaintiff and stopped talking to her. Cobb 
testified that Carney instructed the other men on the 
shift not to eat with plaintiff, not to share food with her, 
not to be in the break room with her, and not to talk to 

shifts, members of “A” shift would divide up cooking duties and 
take turns bringing in food to allow them to eat together. 

5a 

her. Cobb’s Test. at 251, 273. Plaintiff testified as 
follows: 

[I]f 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. . . . I heard a lot of under your 

breath kind of things . . . and snickering. 

Pollard’s Test., Tr. at 37. Cobb further stated that 
Carney instructed the other men on “A” shift not to 
follow any of plaintiff ’s instructions without checking 
with him first. Cobb’s Test., Tr. at 251-52. Carney 
himself conceded that “[i]t’s a possibility” that he told 
AOs on “A” shift to disregard plaintiff’s instructions. 
Id. at 904. 

It was common knowledge among the employees in 
the peroxide area that Steve Carney, Jerry Lee, Rory 
Bricco, and many of the other men in the area, did not 
approve of women working in peroxide. Cobb’s Test., 
Tr. at 246-47, 251, 359, 361; Testimony of David Walker 
(“Walker’s Test.”), Tr. at 746-47. Mark Cobb testified 
that Carney would make comments to this effect 
approximately five times per week to the men on “A” 
shift, and Cobb and several other witnesses confirmed 
that Carney routinely referred to women as “bitches” 
and “cunts.” Cobb’s Test., Tr. at 264, 266; Lee’s Test., 
Tr. at 491-92; Walker’s Test., Tr. at 751-52. 

Several witnesses testified that they had heard 
Carney use the word “heifer” to refer to women, and 
that use of the term “heifer” to refer to women in gen- 
eral was commonplace in the peroxide area. Testimony 
of Joey Moody (“Moody’s Test.”), Tr. at 697; Lee’s Test., 
Tr. at 489-90; Walker’s Test., Tr. at 723. Carney 

6a 

admitted that he referred to women as “heifers,” and 
that he referred to plaintiff as a “bitch” and a “split 
tail.” Testimony of Steve Carney (“Carney’s Test.”), 
Tr. at 908-09. In addition, DuPont had a company-spon- 
sored support group known as the Women’s Network,4 
of which Carney routinely expressed his disapproval. 
Cobb’s Test., Tr. at 246-47; see also Testimony of Kay 
Jenks (“Jenks’ Test.”), Tr. at 416 (noting that the men 
on plaintiff ’s shift did not approve of plaintiff attending 
the meetings of the Women’s Network). 

In May of 1994, after plaintiff had been experiencing 
the kind of isolation described above from the members 
of “A” shift for approximately two months, the shift 
supervisor, David Swartz, held a training meeting.5 
During the meeting, all of the members of “A” shift and 
Swartz were seated around a small conference table. 
At some point during a break in the meeting, Carney 
and Walker were having a discussion about a girls 
softball team, during which Carney said “that heifer 
can’t coach,” in reference to the woman who coached 
the team. Moody’s Test., Tr. at 697. Carney also said 
something along the lines of “women have no business 
coaching.” Moody’s Test., Tr. at 677-78; Walker’s Test., 
Tr. at 753; Lee’s Test ., Tr. at 472-73; Pollard’s Test., Tr. 
at 632. Plaintiff, who was sitting across the table from 
Carney, heard these comments, became very upset, and 
asked to be excused to go to the nurse’s station. 
Pollard’s Test., Tr. at 632-34. 

4 Plaintiff regularly attended meetings of the Women’s Net- 
work. 

5 This training meeting was not held to address the problems 
on the shift, rather it was a training session on work-related 
matters that was regularly held on Tuesdays. 

7a 

Once she arrived at the nurse’s station, plaintiff 
asked the nurse to call her supervisor, David Swartz, to 
come and speak with her. When Swartz arrived, 
plaintiff was very upset and began to cry. Swartz 
testified that she told him “that she couldn’t take it any 
more, she was tired of people talking about women the 
way they do . . . [that Steve Carney had said] ‘Well, 
that heifer can’t coach,’ . . . and she was just tired of 
them saying that women can’t do anything.” Testimony 
of David Swartz (“Swartz’s Test.”), Tr. at 949-50. 
Swartz further testified that he understood plaintiff ’s 
words to mean that “she couldn’t take it any more 
about [the] men [in peroxide] degrading women.” Id. at 
979-80. 

Swartz testified that he spoke with his supervisor, 
Alan Hubbell, about this incident, and that they decided 
that Swartz should speak to the men on the shift 
individually. Swartz’s Test., Tr. at 952. With the 
exception of Walker, however, none of the men on the 
shift remembered Swartz speaking to them about this 
incident. Carney testified that Swartz spoke to him “a 
few times” about not communicating with plaintiff 
“right after [they] quit talking,” but that Swartz soon 
gave up on trying to talk to him about it “because he 
knows I’m hardheaded . . . [and there] wasn’t no 
sense [sic] in saying anything else.” Carney’s Test., Tr. 
at 883-84. 

Swartz testified that he could tell “there was tension 
on the shift” beginning in the spring of 1994, and that 
things did not improve during the rest of the year. 
Swartz’s Test., Tr. at 954-55. He testified that many of 
the men talked to him about the tension on the shift, 
and that plaintiff complained to him about the lack of 

8a 

communication and isolation on several occasions. Id. at 
954, 956. When asked by counsel for DuPont what he, 
as the shift supervisor, tried to do to address the 
situation between spring of 1994 and December of 1994, 
Swartz responded: 

Well, I mean we continually talked to each individ- 
ual. . . . I worked personally talking to each one of 

them hopefully [sic] that we could get back together, 
you know, as a more friendly group where it would 
relieve the tension, but it didn’t seem to work. 

Id. at 955. 

During the spring and summer of 1994, plaintiff ’s 
situation worsened. The men on the shift still refused 
to eat with her or speak with her. She testified, and 
Mark Cobb corroborated, that on several occasions 
Carney would set off false alarms in her area, causing 
her to run around the peroxide area in search of a non- 
existent problem.6 Pollard’s Test., Tr. at 38; Cobb’s 
Test., Tr. at 266-69. Cobb testified that Carney would 
brag to the other men on “A” shift about making plain- 
tiff run all over plant to “show[] that he’s in control.” 
Cobb’s Test., Tr. at 269. Cobb further testified that on 
two separate occasions after a false alarm had been 
pulled while plaintiff was cooking her dinner, one of the 
men would turn up the stove under her food, burning 
her dinner and rendering it inedible. Id. at 270-71. 
Cobb also stated that on several occasions, Carney 
would not call out actual alarms from plaintiff ’s area.7 

6 Several witnesses testified that the peroxide area was the 
size of three city blocks. 

7 Based on the testimony during the trial, it appears that the 
control room operator sits in the control room of the peroxide area 

9a 

Id. at 275. As a result, plaintiff would not respond to 
the problem, and it would appear to the # 3 operator on 
the next shift that she was not doing her job. Id. at 275. 

Part of plaintiff ’s job as the # 3 operator was to 
monitor the vaporizers in the peroxide tanks, determine 
when they should be moved, and instruct the AOs to 
move them according to this schedule. Pollard’s Test., 
Tr. at 32-33; Moody’s Test., Tr. at 687. Plaintiff testi- 
fied that, on several occasions, Carney told one of the 
AOs on “A” shift to remove the vaporizer from the tank 
earlier than plaintiff had planned for it to be removed, 
and then instructed them not to tell her that they had 
done so. Pollard’s Test., Tr. at 32-33, 35. Plaintiff 
needed to sample the peroxide one hour after the 
vaporizer was removed. Id. at 90; Moody’s Test. at 710. 
Accordingly, if the vaporizer was removed early, and 
plaintiff was not informed that it was removed, the 
resulting product could be too weak.8 The fact that the 
peroxide was not timely sampled also created more 
work for the # 3 operator on the next shift, and made it 
appear that plaintiff was not doing her job. Id. at 94- 

95. In addition, removing the vaporizer early could 
mean that not enough peroxide was made for the 

and monitors a series of instrument panels. If there is a problem, 
the control room operator will become aware of it via these 
instruments. The control room operator is then supposed to call 
out an alarm over the intercom system to the operator or AO 
working in the relevant area, so that the appropriate individual can 
go check on the problem. 

8 Various percentage strengths of peroxide were made at 
DuPont. Plaintiff testified that if a tank was off even 2%, e.g., a 
tank that was supposed to be 70% strength was 68% instead, it 
could not be brought back up to the proper percentage because the 
volume of chemicals that would have to be added would not fit into 
the already full tank. Pollard’s Test., Tr. at 102-03. 

10a 

shipment out to DuPont’s customers the next day, 
again making it appear as if plaintiff was not com- 
petently executing her job duties. Id. 89-90. 

Plaintiff testified that the vaporizers were removed 
early approximately seven times during 1994 and 1995, 
with the most recent incident occurring during the 
week of July 5-11, 1995. After the first time that the 
problems with the vaporizers occurred, plaintiff spoke 
with David Walker and Joey Moody about it and asked 
them not to do it again. 

Id. at 98. Moody told her that 
he was following Carney’s instructions. Id. Carney 
himself testified that he would sometimes tell one of the 
AOs to move a vaporizer, and that when he did so he 
did not believe that he had an obligation to tell plaintiff. 
Carney’s Test., Tr. at 895. 

Plaintiff testified that she spoke to her supervisor, 
David Swartz, about the vaporizer problem the second 
time it occurred, and every time after that. Swartz 
admitted that he spoke with plaintiff on several 
occasions during the spring and summer of 1994, and 
that she complained to him that “she wasn’t getting 
communication—that Steve wasn’t calling out alarms or 
he wouldn’t say stuff to her when [vaporizers] were 
pulled or whatever because she had responsibility [for] 
sampling those tanks.” Swartz’s Test., Tr. at 957. 
Swartz testified that his only response to these com- 
plaints was the following: 

I [Swartz] would go to Steve and say “Steve, that’s 
part of your job, you got to call out alarms.” His 
response was, “I’m calling out the alarms, she’s not 
answering it.” So I was hearing it from both sides. 
And I would tell Sharon, “Steve’s saying you’re not 
responding to it.” And she would say that she was, 

11a 

and so we had to get that communication link 
straightened out, and I thought that eventually that 
worked out. . . . 

Id. 957. The evidence in the record, however, demon- 
strates that the problem was not solved, and that 
Swartz never investigated plaintiff’s complaints 
further. 

During the summer of 1994, plaintiff came to work 
one day and found that both of the tires on her bicycle 
had been slit open.9 Swartz admitted that the day that 
plaintiff discovered that the tires had been cut, she 
reported it to him and told him that she suspected that 
Carney was responsible. Swartz’s Test., Tr. at 959. In 
response to this complaint, Swartz spoke with Carney, 
and Carney denied cutting plaintiff ’s tires. Id. Again, 
after Carney denied the allegations, Swartz did nothing 
else to investigate plaintiff ’s complaints. Swartz 
stated, “I didn’t have any other facts to go on that 
would say that he did it.” Id. 959-60. Accordingly, 
rather than investigate further, Swartz did nothing. 

In December of 1994, after these problems had been 
occurring for ten months with no improvement, Mark 
Cobb and David Walker approached David Swartz and 
asked him to call a meeting with the entire shift to 
discuss the situation. 

10 Accordingly, a meeting was 
held in late December of 1994 that came to be known as 
the “first healing meeting.” On the date that the 

9 Because the DuPont plant is so large, employees often ride 
bicycles from the front gate to their area. 

10 The Court notes that even after all of the complaints that 
Swartz had received during the past ten months from plaintiff, the 
idea to call a meeting to discuss the situation was not his. 

12a 

meeting was to be held, Carney was on vacation. The 
members of the shift discussed whether or not they 
should proceed with the meeting without him, and 
decided to go ahead. 

At this meeting, Walker and Moody told plaintiff that 
Carney had encouraged them not to talk to her. 
Pollard’s Test., Tr. at 46. Walker and Moody also told 
plaintiff that Carney had told them that she was 
“keeping a book on them” in which she wrote down 
everything they said to use it against them. Id. 
Plaintiff assured them that she was not keeping a book, 
and then explained to them how stressful the isolation 
was for her, and how she “had to run around and do 
more steps than [she] would normally do to get [her] 
job done . . . because [she] wasn’t getting com- 
municated with.” Id. at 47. Plaintiff also explained to 
them that the lack of communication was dangerous 
because a spill or explosion could result, and that it 
could also cause a shipment to a customer to be missed. 
Id. at 51. David Swartz was present throughout this 
meeting and, again, heard all of plaintiff ’s complaints. 

When Carney returned from vacation and learned 
that “A” shift had held a meeting without him he was 
furious, and demanded that another meeting be held. 
Pollard’s Test., Tr. at 51; Cobb’s Test., Tr. 285-86; 
Moody’s Test., Tr. at 684; Swartz’s Test., Tr. at 961. 
During the second meeting, the entire shift, including 
Swartz, was present. Plaintiff reiterated all of her 
concerns about the lack of communication and other 
problems. Plaintiff also mentioned that her bike tires 
had been slashed, and another incident that summer in 
which she believed that Carney had tried to run her off 

13a 

the road in his truck as she left the DuPont plant. 

11 

Moody’s Test., Tr. at 685; Walker’s Test., Tr. at 738. At 
the second meeting, Carney “got in [plaintiff’s] face” 
and said “Nobody in this area likes you, you’re here all 
alone, it’s all your own fault.” Pollard’s Test., Tr. at 52; 
Moody’s Test., Tr. at 684-85; Cobb’s Test., Tr. at 289-90. 
Plaintiff then turned to Swartz, who was observing this 
interaction, and asked him if he was going to permit 
Carney to speak to her in that manner. Cobb’s Test., 
Tr. at 290-91; Pollard’s Test., Tr. at 52; Swartz’s Test., 
Tr. at 993. Swartz then said “I think that’s enough,” 
and the meeting ended with no further resolution of the 
issues. Id. 

Subsequent to these meetings, the situation did not 
improve. Swartz was aware that the hostility and 
tension on the shift had not abated, and plaintiff 
continued to complain to him that the environment was 
intolerable for her. Swartz’s Test. at 964. Swartz, 
however, took no action to help her. During this time 
period, plaintiff attended several meetings of the 
Women’s Network and spoke to the group about the 
problems she was facing, the isolation she was 
experiencing, and the psychological effect it was having 
on her. Jenks’ Test., Tr. at 415-17. Kay Jenks, a female 
engineer and one of the leaders of the Woman’s 
Network, testified that during the Network meetings 
plaintiff: 

was concerned that she would be out there on 
nights, frequently the only woman on shift, she 
would go for hours without even hearing another 

11 Swartz concedes that he never did anything to investigate 
plaintiff ’s allegation that Carney tried to run her off the road. 
Swartz’s Test., Tr. at 1004. 

14a 

voice. . . . She was concerned that something would 

happen that would endanger her and they would not 
tell her, they would not get ahold of her, she was 
also concerned that maybe something would go 
wrong in the process that she could help fix or 
impact, but they wouldn’t let her know in time and 
then it would reflect poorly on her performance. 

Id. at 417. 

In attendance at some of these meetings was Beth 
Basham, unit supervisor for the peroxide area. 

12 

Basham conceded that she heard plaintiff talk about the 
problems she was having with the men in peroxide on 
several occasions. Basham’s Test., Tr. at 1184, 1194-95. 
Basham further testified that she “knew there was a 
real problem in the peroxide area of the male workers 
accepting the role of a female in that area,” and that she 
“was of the firm belief that plaintiff had been harassed 
on account of her sex in the peroxide area.” Id. at 1195, 
1217. In spite of this knowledge, however, Basham 
never investigated the situation based on what she had 
learned at the Women’s Network meetings. 

13 Basham 
testified that she never wrote a report or sent a memo- 
randum to anyone in upper management at DuPont 
stating that there was a real problem in the peroxide 

12 Basham was the supervisor of Alan Hubbell, who was David 
Swartz’s supervisor. Basham was the “number one person in the 
peroxide area,” and reported directly to the plant manager, Gary 
Lewis. Testimony of Beth Basham (“Basham’s Test.”), Tr. at 1181- 

82. 

13 Basham did become involved in the investigation that took 
place during the summer of 1995, but, prior to that, did nothing to 
formally investigate plaintiff’s charges of harassment, despite 
learning of them in the context of the Women’s Network meetings. 

15a 

area regarding the treatment of female employees, and 
she “could not recall” if she ever discussed the situation 
with anyone at DuPont’s headquarters informally. Id. 
at 1197-98. 

On May 25, 1995, the Women’s Network hosted a 
meeting at which Bernie Scales, a specialist in diversity 
training from DuPont’s headquarters, spoke to the 
Network. At that meeting, plaintiff began to talk about 
the isolation and harassment she was receiving from 
the men in peroxide, and asked to speak to Scales 
further at the conclusion of the meeting. After the 
meeting was over, Scales met with plaintiff. At that 
meeting plaintiff told Scales all about the long-term 
harassment and isolation she had been experiencing. 
As a result of that meeting, Scales spoke to the plant 
manager Gary Lewis, who then spoke to Bob Shaw, 
employee relations manager for the Memphis DuPont 
plant. On May 28, 1995, Shaw, Lee Ann Rice, 

14 and 

15 met with plaintiff to discuss her situation. 
During the course of that meeting, plaintiff recounted 
the full history of the harassment she had experienced 
in the peroxide area, including the allegation that 
Carney had tried to run her off the road the previous 
summer, and told them that she wanted this situation 
corrected. Testimony of Bob Shaw (“Shaw’s Test.”), Tr. 
at 1094; Testimony of Lee Ann Rice (“Rice’s Test.”), Tr. 
at 401; Pollard’s Test., Tr. at 62. Subsequent to that 
meeting, Shaw and Swartz spoke to Carney about his 
behavior. Swartz’s Test., Tr. at 968. Carney never 
received a formal written reprimand, was never sus- 

14 Rice is a manager in Human Resources. Her supervisor is 
Bob Shaw. 

15 Fish was a plant shift supervisor. 

Gary Fish 

16a 

pended from his job, and was never transferred to 
another shift, demoted, or terminated. Basham’s Test., 
Tr. at 1223; Carney’s Test., Tr. at 903-04. In addition, 
neither Shaw, nor anyone else at Dupont, ever investi- 
gated plaintiff ’s allegation that Carney had tried to run 
her off the road, after Shaw spoke to Carney and 
Carney denied that it had occurred. Shaw’s Test., Tr. 
at 1102. Even after Bernie Scales returned to Wilming- 
ton with knowledge of plaintiff’s concerns, no one from 
DuPont headquarters ever came to the Memphis plant 
to investigate plaintiff ’s allegations. Basham’s Test., 
Tr. at 1250-51. 

After Shaw spoke to Carney, Carney’s behavior 
improved for about four weeks. During the week of 
July 5-11, 1995, however, Carney returned to his prior 
patterns of behavior. Pollard’s Test., Tr. at 107. 
Another incident in which the vaporizer was taken out 
early without plaintiff ’s knowledge also occurred 
during this week. Id. at 89. Plaintiff went to David 
Swartz and begged him to “just get me off this shift, 
nothing’s changed and I can’t take it.” Id. at 107. 
Rather than investigating the situation or moving 
Carney to another shift, Swartz spoke to plaintiff the 
next day and informed her that a control room operator 
position on another shift was available. Id. at 108; 
Swartz’s Test., Tr. at 994-96. Plaintiff did not want to 
take this position because it was on the same shift with 
Rory Bricco, the man who had refused to take direction 
from her when she was a control room operator on “C” 
shift. Plaintiff told Swartz she would not bid for that 
position. Pollard’s Test., Tr. at 108-09. 

On July 28, 1995, plaintiff discovered a highlighted 
copy of the same Bible verse that Bricco had put on her 

17a 

desk when he refused to take direction from her in her 
mailbox at work. As noted above, that Bible verse 
read: “A woman should learn in quietness and full sub- 
mission. I do not permit a woman to teach or have 
authority over a man, she must be silent.” Tr. at 407 
(quoting 1 Timothy 2:11). When plaintiff discovered the 
Bible verse, she described her reaction as follows: 

I felt like I had been hit with a brick, I just couldn’t 
believe that after all that had been talked about, 
they were asking me to go back into the control 
room . . . and I just considered [that] this was the 
men’s answer to that. 

Pollard’s Test., Tr. at 110. 

Subsequent to that event, plaintiff never returned to 
work at DuPont. A committee was formed to investi- 
gate the Bible verse incident. As with the other 
“investigations” that DuPont had initiated with regard 
to plaintiff ’s complaints, this one was wretchedly inade- 
quate. The investigation consisted of asking an identi- 
cal series of typed questions to each of the men on “A” 
shift individually, and to the other men in the peroxide 
area in groups. Shaw’s Test., Tr. at 1106. All of the 
questions were answerable with a simple yes or no, and 
when all of the men denied having any knowledge of the 
incident, DuPont proceeded no further with the 
investigation. Shaw’s Test., Tr. at 1268, 1270. No one 
from DuPont management ever questioned Steve 
Carney about whether he was involved in the Bible 
verse incident. Carney’s Test., Tr. at 931. 

After plaintiff left “A” shift, a party was held to 
celebrate her departure. Cobb’s Test., Tr. at 277-79; 
Carney’s Test., Tr. at 931-32. Steve Carney fried cat- 

18a 

fish and crappie that he had brought in, and the other 
men blew up balloons and taped them to the ceiling. Id. 
Mark Cobb testified that at the party Carney declared, 
“glad the bitch is gone, glad the bitch is not coming 
back.” Cobb’s Test., Tr. at 278. Carney himself 
testified as follows: 

Q: Now, after she [plaintiff] left, there was a 
party in the peroxide are [sic], wasn’t there? 

A: Yes, ma’am. 

Q: And you participated in that party, correct? 

A: Yes, ma’am. 

Q: And there were balloons at that party, 
correct? 

A: Yes, ma’am. 

Q: And I believe there was crappie cooked, 
correct? 

A: Yes, ma’am. 

Q: And you do recall that, don’t you? 

A: Yes, ma’am. 

Q: You were celebrating the departure of Sharon 

Pollard, weren’t you? 

A: Yes, ma’am. 

Carney’s Test., Tr. at 931-32. 

Plaintiff was on short-term disability leave for the 
next six months, during which time she saw a number 
of psychologists and psychiatrists that DuPont required 

19a 

her to visit. In particular, DuPont sent plaintiff to Dr. 
Fred Steinberg, who concluded she could not return to 
work. In spite of this opinion, however, DuPont 
scheduled a “return to work” meeting with plaintiff in 
February of 1996. At that meeting DuPont manage- 
ment would not guarantee that plaintiff would not be 
put back on a shift with Carney. Pollard’s Test., Tr. at 
219. Plaintiff told them that she could not return to 
work under those conditions, and DuPont terminated 
her, effective February 29, 1996. Id. at 154, 217-19. 

CONCLUSIONS OF LAW 

Title VII prohibits discrimination “against any indi- 
vidual with respect to [her] compensation, conditions, 
or privileges of employment, because of such indivi- 
dual’s. . . sex.” 42 U.S.C. § 2000e-2(a)(1). In Meritor 
Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 
2399, 91 L.Ed.2d 49 (1986), the Supreme Court held 
that a plaintiff may establish a violation of Title VII by 
proving that discrimination based on sex created a 
hostile or abusive work environment. As noted by the 
Sixth Circuit in Black v. Zaring Homes, Inc., 104 F.3d 
822, 825 (6th Cir. 1997), the statute grants employees 
“the right to be work in an environment free from 
discriminatory intimidation, ridicule, and insult.” 104 
F.3d at 825 (quoting Meritor, 477 U.S. at 65, 106 S. Ct. 
2399). 

In order to succeed on a hostile work environment 
claim, a plaintiff must prove the following elements: 

1) the plaintiff is a member of a protected class; 2) the 
plaintiff was subject to unwelcomed sexual harassment; 

3) the harassment complained of was based on sex; 

4) the charged sexual harassment had the effect of 
unreasonably interfering with the plaintiff ’s work 

20a 

performance and creating an intimidating, hostile, or 
offensive work environment; and 5) the employer knew, 
or should have known, of the charged sexual harass- 
ment, and failed to take prompt and appropriate 
corrective action. Fleenor v. Hewitt Soap Co., 81 F.3d 
48, 49 (6th Cir. 1996). 

There is no question that plaintiff satisfies the first 
two elements as required by Fleenor. First, as a 
woman, plaintiff is a member of a protected class. 
Second, it is clear from plaintiff ’s repeated complaints, 
initially to her supervisor David Swartz and later to 
other members of DuPont management, including 
Shaw, Rice, Scales, and Basham, that the harassment 
plaintiff was experiencing was unwelcome. 

16 

With regard to the third element of the Fleenor test, 
the Court concludes that plaintiff has unequivocally 
established that the harassment she experienced was 
based on her gender. As recently clarified by the 
Supreme Court in Oncale v. Sundowner Offshore 
Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L.Ed.2d 201 
(1998), harassment based on gender need not be sexual 
in nature: 

[H]arassing conduct need not be motivated by 
sexual desire to support an inference of discrimina- 
tion based on sex. A trier of fact might reasonably 
find such discrimination, for example, if a female 
victim is harassed in such sex-specific and deroga- 

16 Moreover, plaintiff ’s repeated complaints during the 
Women’s Network meetings, and to the other members of “A” 
shift during the two “healing” meetings held in December 1994, 
further support the Court’s conclusion that the harassment was 
unwelcome. 

21a 

tory terms . . . as to make it clear that the 
harasser is motivated by general hostility to the 
presence of women in the workplace. 

Oncale, 523 U.S. at 80, 118 S. Ct. at 1002 (emphasis 
added). 

As noted above, the record is replete with evidence 
that several of the men in the peroxide area were 
“motivated by general hostility to women in the 
workplace,” and felt strongly that women did not 
belong in the peroxide area. Cobb’s Test., Tr. at 246-47, 
251, 359, 361; Walker’s Test., Tr. at 746-47; Basham’s 
Test., Tr. at 1195. Specifically as to plaintiff ’s shift, 
Steve Carney stated that women didn’t belong there 
approximately five times per week, and routinely 
referred to women as “bitches” and “cunts.” Cobb’s 
Test., Tr. at 264, 266; Lee’s Test., Tr. at 491-92; 
Walker’s Test., Tr. at 751-52. Use of the term “heifer” 
to refer to women was commonplace behavior by men 
in the peroxide area. Moody’s Test., Tr. at 697; Lee’s 
Test., Tr. at 489-90; Walker’s Test., Tr. at 723. 

Carney himself testified that he referred to women 
as “heifers” and that he referred to plaintiff as a “bitch” 
and a “split tail.” 

17 Carney’s Test., Tr. 908-09. Carney, 
and the other men on “A” shift, repeatedly voiced their 
objections to the Women’s Network and to DuPont’s 
participation in “Take Your Daughters to Work Day.” 
Even Beth Basham, DuPont’s unit supervisor of the 
peroxide area, conceded that she “was of the firm belief 
that plaintiff had been harassed on account of her sex in 

17 The Court notes that several witnesses testified that they 
considered Carney to be a “leader.” Walker’s Test., Tr. at 757; 
Swartz’s Test., Tr. at 992. 

22a 

the peroxide area.” Basham’s Test., Tr. at 1217. 
Finally, the content of the Bible verse placed in plain- 
tiff ’s mailbox on July 28, 1995, leaves absolutely no 
doubt in the Court’s mind that the harassment of plain- 
tiff was based on her gender. 

As to the question of whether the harassment was 
pervasive enough to constitute a hostile work environ- 
ment and unreasonably interfere with plaintiff ’s work 
performance, the Supreme Court reaffirmed the stan- 
dard set forth in Meritor, and further clarified it in 
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23, 114 S. 
Ct. 367, 126 L.Ed.2d 295 (1993). In Harris, the Court 
explained that the conduct must be judged by both an 
objective and subjective standard. 510 U.S. at 21-22, 
114 S. Ct. 367. Accordingly, “the conduct must be 
severe or pervasive enough to create an environment 
that a reasonable person would find hostile or abusive, 
and the victim must subjectively regard that environ- 
ment as abusive.” Black, 104 F.3d at 826 (citing Harris, 
510 U.S. at 21-22, 114 S. Ct. 367.) “This standard . . . 
takes a middle path between making actionable any 
conduct that is merely offensive and requiring the con- 
duct to cause a tangible psychological injury.” Harris, 
510 U.S. at 21, 114 S. Ct. 367. 

The Supreme Court acknowledged that this approach 
is not susceptible to a “mathematically precise test,” id. 
510 U.S. at 22, 114 S. Ct. 367, but sought to provide 
some guidance with regard to the determination of 
whether a work environment was objectively hostile or 
abusive. The Court explained that all of the circum- 
stances should be considered, and offered a non- 

23a 

exhaustive list of relevant factors, including: 

[T]he frequency of the discriminatory conduct; its 
severity; whether it is physically threatening or 
humiliating, or a mere offensive utterance; and 
whether it unreasonably interferes with an 
employee’s performance. The effect on the 
employee’s psychological well-being is, of course, 
relevant to determining whether the plaintiff 
actually found the environment abusive. But while 
psychological harm, like any other relevant factor, 
may be taken into account, no single factor is 
required. 

Id. 510 U.S. at 23, 114 S. Ct. 367. 

Based on the evidence set forth above, the Court 
concludes that harassment faced by plaintiff while she 
was on the “A” shift at DuPont, and specifically during 
the December 1994 through December 1995 period rele- 
vant to liability in this case, constituted a pervasively 
hostile environment and unreasonably interfered with 
her work performance. The false alarms, failure to 
communicate alarms and other information necessary 
for plaintiff ’s job, and the early removal of the 
vaporizers at Carney’s instruction on several occasions, 
are examples of direct interference with plaintiff ’s 
execution of her job duties. This kind of deliberate 
tampering with plaintiff ’s area of responsibility could 
have, and very well may have, resulted in safety risks 
or production shortages, and made plaintiff appear 
incompetent to the # 3 operator on the next shift. 

Moreover, as Justice Ginsburg noted in her con- 
curring opinion in Harris, to show unreasonable inter- 

24a 

ference with a plaintiff ’s work performance, “ ‘the 
plaintiff need not prove that his or her tangible 
productivity has declined as a result of the harassment.’ 
It suffices to prove that a reasonable person subjected 
to the discriminatory conduct would find, as the 
plaintiff did, that the harassment so altered working 
conditions as to ‘ma[k]e it more difficult to do the job.’ ” 
510 U.S. 17, 25, 114 S. Ct. 367, 126 L.Ed.2d 295 
(Ginsburg, J., concurring) (quoting Davis v. Monsanto 
Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)). The 
Court finds that plaintiff has demonstrated that the 
harassment so altered her working conditions as to 
make it more difficult to do her job, on both an objective 
and subjective level. 

Plaintiff testified that she suffered from nightmares, 
fear of crowds, nausea, anxiety, and sleeplessness. A 
psychologist and a psychiatrist who saw plaintiff both 
concluded that she suffered from post-traumatic stress 
disorder. See Testimony of Dr. Janet Hill, Tr. 775-851; 
Testimony of Dr. Richard Farmer, Tr. 502-79. Several 
witnesses testified about the dramatic change in 
plaintiff ’s personality during this time period. Jenks’ 
Test., Tr. at 418; Testimony of Charlotte Blaylock, Tr. 
at 442-44; Testimony of John Pollard, Tr. at 451-52. 

Plaintiff testified extensively about the enormous 
psychological effect the long-term campaign of harass- 
ment, intimidation, and isolation executed by the men 
on “A” shift had on her mental and emotional state. 
Plaintiff stated that the last straw in the long ordeal, 
the placing of the Bible verse in her mailbox at work, so 
upset her and interfered with her ability to perform her 
job that she left her position at the plant where she had 
worked for the past seventeen years and did not return. 

25a 

Accordingly, the Court concludes that plaintiff has 
satisfied the fourth requirement necessary for a hostile 
environment claim, in that she has demonstrated that 
the harassment “unreasonably interfer[ed] with [her] 
work performance and creat[ed] an intimidating, hos- 
tile, [and] offensive working environment.” Fleenor v. 
Hewitt Soap Co., 81 F.3d 48, 49 (6th Cir. 1996). 

Finally, the Court must consider whether DuPont 
knew, or should have known, of the charged sexual 
harassment and failed to take prompt and appropriate 
corrective action. The evidence on this point is 
overwhelming. As set forth above, beginning in the 
spring of 1994, plaintiff complained about the lack of 
communication, constant disparaging remarks about 
women, and the sabotage of her work by the men on 
her shift to her supervisor, David Swartz. 

Time and time again, after receiving these complaints 
from plaintiff, 

18 Swartz either made a half-hearted 
attempt to speak to Carney, which ended as soon as 
Carney denied the conduct, or did nothing at all. 
Carney testified that after a few attempts, Swartz quit 
talking to him because he was “hard-headed” and 
Swartz knew “there wasn’t no sense [sic] in saying 

18 The Court notes that the testimony of both plaintiff and 
Swartz reveals that plaintiff discussed her situation with Swartz 
throughout the latter half of 1994 and in 1995. As to specific 
instances, however, the record reveals that Swartz was on notice 
of plaintiff ’s complaints in May of 1994 after Carney’s comment 
that “women had no business coaching” at the training meeting, 
during the summer of 1994 when plaintiff complained to Swartz the 
day after her bicycle tires were cut, and in December 1994 when 
Swartz was present at the two “healing meetings” at which plain- 
tiff set forth all of her complaints and concerns. Swartz’s Test., Tr. 
at 949-50, 979-80, 958, 959-60, 993. 

26a 

anything else.” Carney’s Test., Tr. at 883-84. Swartz 
himself conceded that his efforts to remedy the 
situation “didn’t seem to work.” Swartz’s Test., Tr. at 
955. However, Swartz took no further steps to end the 
campaign of harassment being waged against plaintiff 
by the men on “A” shift. 

Swartz testified that, at least after the softball coach 
incident in May of 1994, he spoke to his supervisor Alan 
Hubbell about the situation in peroxide. Swartz’s Test., 
Tr. at 952. In spite of the fact that the situation did not 
improve, Hubbell never followed-up on the situation or 
initiated any kind of formal investigation. Beth 
Basham, the highest-ranked supervisor in the peroxide 
area, testified that she was on notice of the harassment 
plaintiff was experiencing based on her attendance at 
Women’s Network meeting at which plaintiff spoke 
about her situation. Basham, Tr. at 1184, 1194-95. Just 
as with Swartz, however, Basham did nothing to 
investigate the situation or discipline the individuals 
involved. After Bob Shaw, employee relations manager 
for the Memphis plant, became aware that this harass- 
ment had been ongoing since 1994, Shaw spoke to 
Carney about it, but never formally disciplined him in 
any way. Bernie Scales, from DuPont headquarters, 
was aware of the situation based on plaintiff ’s meeting 
with him on May 25, 1995. However, no one from 
DuPont’s headquarters ever visited the Memphis plant 
to follow-up on plaintiff ’s situation or conduct an inves- 
tigation of her allegations. 

Several witnesses testified that DuPont has a pro- 
gressive disciplinary system in which employees are to 
receive increasingly severe sanctions if the misconduct 
at issue does not cease. Sanctions in this system range 

27a 

from an informal oral reprimand to termination. In 
spite of all of the complaints plaintiff made against him, 
and the fact that the situation did not improve, Steve 
Carney never received a formal written reprimand, was 
never suspended from his job, and was never trans- 
ferred to another shift, demoted, or terminated. 
Basham’s Test., Tr. at 1223; Carney’s Test., Tr. at 903- 

04. 

This situation was reprehensible. This is a case of 
wretched indifference to an employee who was slowly 
drowning in an environment that was completely 
unacceptable, while her employer sat by and watched. 
Plaintiff repeatedly complained to DuPont management 
to no avail. Accordingly, the Court concludes, without 
reservation, that DuPont knew of the charged sexual 
harassment and utterly failed to take prompt and 
appropriate corrective action. 

Plaintiff has, therefore, satisfied each of the elements 
necessary to prove that she was subjected to a hostile 
work environment based on her gender in violation of 
Title VII, and judgment is ENTERED in favor of 
plaintiff as follows: 

1. Defendant is ORDERED to pay plaintiff 
$107,364.00 in back pay and accrued benefits; 

2. Defendant is ORDERED to pay plaintiff 
$300,000.00 in compensatory damages, 

19 in 

19 The amount of compensatory damages includes front pay, 
pursuant to the Sixth Circuit’s holding in Hudson v. Reno, 130 
F.3d 1193, 1204 (6th Cir. 1997) (“[W]e conclude that front pay is 
subject to the caps on future pecuniary losses as provided in 
§ 1981a(b)(3) because front pay is a ‘future pecuniary loss.’ ” ). 

The 

Court notes that the $300,000.00 award is, in fact, insufficient to 

28a 

accordance with the statutory cap set forth in 
42 U.S.C. § 1981a(b)(3); and 

3. Defendant is ORDERED to pay plaintiff ’s 
attorney fees and costs. Plaintiff shall submit 
a statement of fees and costs related to this 
matter to the Court by September 15, 1998. 
Defendant may file a response to plaintiff ’s 
submittal by September 30, 1998. The Court 
will then determine the appropriate amount 
of attorneys fees and costs to be awarded, 
and will so advise the parties. 

compensate plaintiff for the psychological damage, pain, and 
humiliation she has suffered, in addition to the loss of a lucrative 
career and secure retirement. The Court is bound by the statutory 
cap set forth in § 1981a however, and cannot award plaintiff 
compensatory damages in excess of that cap. 

Because the amount of compensatory damages awarded by the 
Court is $300,000.00), the Court is thus prohibited by the statutory 
cap from awarding plaintiff any punitive damages. See 42 U.S.C. 
§ 1981a(b)(3) (“The sum of the amount of compensatory damages 
awarded . . . and the amount of punitive damages awarded . . . 
shall not exceed . . . $300,000.00”). For the record, however, the 
Court finds that punitive damages are justified in this case, as 
defendant has “engaged in a discriminatory practice with malice or 
with reckless indifference to the federally protected rights of an 
aggrieved individual,” 42 U.S.C. § 1981a(b)(1), and, absent the 
statutory cap, the Court would have awarded punitive damages 
based upon DuPont’s repeated failure to remedy this egregious 
situation. 

29a 

APPENDIX B 

STATUTORY PROVISIONS 

1. Section 706(g) of the Civil Rights Act of 1964, 
Pub. L. No. 88-352, 78 Stat. 261, as amended, which is 
codified at 42 U.S.C. 2000e-5(g), provides: 

Injunctions; appropriate affirmative action; equita- 
ble relief; accrual of back pay; reduction of back 
pay; limitations on judicial orders 

(1) If the court finds that the respondent has 
intentionally engaged in or is intentionally engaging 
in an unlawful employment practice charged in the 
complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate- 
ment or hiring of employees, with or without back 
pay (payable by the employer, employment agency, 
or labor organization, as the case may be, responsi- 
ble for the unlawful employment practice), or any 
other equitable relief as the court deems appropri- 
ate. Back pay liability shall not accrue from a date 
more than two years prior to the filing of a charge 
with the Commission. Interim earnings or amounts 
earnable with reasonable diligence by the person or 
persons discriminated against shall operate to 
reduce the back pay otherwise allowable. 

(2)(A) No order of the court shall require the 
admission or reinstatement of an individual as a 
member of a union, or the hiring, reinstatement, or 
promotion of an individual as an employee, or the 
payment to him of any back pay, if such individual 
was refused admission, suspended, or expelled, or 

30a 

was refused employment or advancement or was 
suspended or discharged for any reason other than 
discrimination on account of race, color, religion, 
sex, or national origin or in violation of section 
2000e-3(a) of this title. 

(B) On a claim in which an individual proves a 
violation under section 2000e-2(m) of this title and 
a respondent demonstrates that the respondent 
would have taken the same action in the absence 
of the impermissible motivating factor, the 
court— 

(i) may grant declaratory relief, injunctive 
relief (except as provided in clause (ii)), and 
attorney’s fees and costs demonstrated to be 
directly attributable only to the pursuit of a claim 
under section 2000e-2(m) of this title; and 

(ii) shall not award damages or issue an order 
requiring any admission, reinstatement, hiring, 
promotion, or payment, described in subpara- 
graph (A). 

2. Section 102 of the Civil Rights Act of 1991, Pub. 
L. No. 102-166, 105 Stat. 1072-1074, which is codified as 
42 U.S.C. 1981a, provides: 

Damages in cases of intentional discrimination in 
employment 

(a) Right of recovery 

(1) Civil rights 

In an action brought by a complaining party 
under section 706 or 717 of the Civil Rights Act of 

31a 

1964 (42 U.S.C. 2000e-5, 2000e-16) against a respon- 
dent who engaged in unlawful intentional discrimi- 
nation (not an employment practice that is unlawful 
because of its disparate impact) prohibited under 
section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2, 
2000e-3, 2000e-16), and provided that the complain- 
ing party cannot recover under section 1981 of this 
title, the complaining party may recover compensa- 
tory and punitive damages as allowed in subsection 
(b) of this section, in addition to any relief author- 
ized by section 706(g) of the Civil Rights Act of 
1964, from the respondent. 

(2) Disability 

In an action brought by a complaining party 
under the powers, remedies, and procedures set 
forth in section 706 or 717 of the Civil Rights Act of 
1964 (42 U.S.C. 2000e-5, 2000e-16) (as provided in 
section 107(a) of the Americans with Disabilities Act 
of 1990 (42 U.S.C. 12117(a)), and section 794a(a)(1) of 
title 29, respectively) against a respondent who 
engaged in unlawful intentional discrimination (not 
an employment practice that is unlawful because of 
its disparate impact) under section 791 of title 29 
and the regulations implementing section 791 of title 
29, or who violated the requirements of section 791 
of title 29 or the regulations implementing section 
791 of title 29 concerning the provision of a rea- 
sonable accommodation, or section 102 of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 
12112), or committed a violation of section 102(b)(5) 
of the Act, against an individual, the complaining 
party may recover compensatory and punitive 
damages as allowed in subsection (b) of this section, 

32a 

in addition to any relief authorized by section 706(g) 
of the Civil Rights Act of 1964, from the respondent. 

(3) Reasonable accommodation and good faith 

effort 

In cases where a discriminatory practice involves 
the provision of a reasonable accommodation pur- 
suant to section 102(b)(5) of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12112(b)(5)) or 
regulations implementing section 791 of title 29, 
damages may not be awarded under this section 
where the covered entity demonstrates good faith 
efforts, in consultation with the person with the 
disability who has informed the covered entity that 
accommodation is needed, to identify and make a 
reasonable accommodation that would provide such 
individual with an equally effective opportunity and 
would not cause an undue hardship on the operation 
of the business. 

(b) Compensatory and punitive damages 

(1) Determination of punitive damages 

A complaining party may recover punitive dam- 
ages under this section against a respondent (other 
than a government, government agency or political 
subdivision) if the complaining party demonstrates 
that the respondent engaged in a discriminatory 
practice or discriminatory practices with malice or 
with reckless indifference to the federally protected 
rights of an aggrieved individual. 

33a 

(2) Exclusions from compensatory damages 

Compensatory damages awarded under this sec- 
tion shall not include backpay, interest on backpay, 
or any other type of relief authorized under section 
706(g) of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-5(g)). 

(3) Limitations 

The sum of the amount of compensatory damages 
awarded under this section for future pecuniary 
losses, emotional pain, suffering, inconvenience, 
mental anguish, loss of enjoyment of life, and other 
nonpecuniary losses, and the amount of punitive 
damages awarded under this section, shall not 
exceed, for each complaining party— 

(A) in the case of a respondent who has more 
than 14 and fewer than 101 employees in each of 
20 or more calendar weeks in the current or 
preceding calendar year, $50,000; 

(B) in the case of a respondent who has more 
than 100 and fewer than 201 employees in each of 
20 or more calendar weeks in the current or 
preceding calendar year, $100,000; and 

(C) in the case of a respondent who has more 
than 200 and fewer than 501 employees in each of 
20 or more calendar weeks in the current or 
preceding calendar year, $200,000; and 

(D) in the case of a respondent who has more 
than 500 employees in each of 20 or more calendar 

34a 

weeks in the current or preceding calendar year, 
$300,000. 

(4) Construction 

Nothing in this section shall be construed to limit 
the scope of, or the relief available under, section 
1981 of this title. 

(c) Jury trial 

If a complaining party seeks compensatory or 
punitive damages under this section— 

(1) any party may demand a trial by jury; and 

(2) the court shall not inform the jury of the 
limitations described in subsection (b)(3) of this 
section. 

(d) Definitions 

As used in this section: 

(1) Complaining party 

The term “complaining party” means— 

(A) in the case of a person seeking to bring an 
action under subsection (a)(1) of this section, the 
Equal Employment Opportunity Commission, the 
Attorney General, or a person who may bring an 
action or proceeding under title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); or 

(B) in the case of a person seeking to bring an 
action under subsection (a)(2) of this section, the 
Equal Employment Opportunity Commission, the 

35a 

Attorney General, a person who may bring an 
action or proceeding under section 794a(a)(1) of 
title 29, or a person who may bring an action or 
proceeding under title I of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.). 

(2) Discriminatory practice 

The term “discriminatory practice” means the 
discrimination described in paragraph (1), or the 
discrimination or the violation described in para- 
graph (2), of subsection (a) of this section.