May Title VII plaintiffs obtain awards of front pay which are not subject to the damage caps? The answer is a resounding yes!
The analysis is easiest if we start at the beginning. Since 1964, plaintiffs complaining of sex discrimination have enjoyed remedies including injunction, reinstatement, lost benefits and attorneys fees. However, where a court found an employer's actions of discrimination to be intentional, they were authorized to enjoin those illegal practices by affirmative action, including an award of back pay. In 1972, Congress expanded the Act to authorize any other equitable relief as the court deems appropriate. Immediately after, courts embraced and endorsed awards for front pay. Despite its loose definition, front pay is simply the income a plaintiff would have earned between the time of judgment and reinstatement or money given in lieu of reinstatement.
In 1991 Congress, for the first time, allowed the recovery of compensatory and punitive damages for all intentional discrimination cases in addition to any relief that was already available. However, Congress had the wisdom to limit any award of compensatory and punitive damages by a statutory cap dependent upon the employer's number of employees - with the maximum being $300,000 for employers with 500 or more employees.
If Congress was so clear, why did the U.S. Supreme Court intervene? Sharon Pollard sued E.I. duPont alleging hostile work environment sexual harassment by co-workers with supervisor knowledge. The Tennessee district court awarded Pollard back pay, benefits, attorneys fees and an additional $300,000 in compensatory damages. The court commented that more money should be awarded, but they were precluded from ordering a larger award because front pay was subject to the damage caps. Other federal appellate courts disagreed and were not considering front pay within the confines of the damage cap. The U.S. Supreme Court decided to resolve the conflict. And that they did.
At the end of the day, the Supreme Court reversed the Sixth Circuit and sent the case back to the district court for further proceedings. We cannot give an opinion as to how much more money Pollard will get in the form of front pay. But we can offer this advice - on a hot summer day in Dallas, stay in the shade. And, when you are estimating your exposure in a discrimination case, list front pay as a separate column - not included in the damage cap.