A regular theme on this blog is for lawyers to keep an eye on remedies at all times. A pair of non-precedential Eleventh Circuit cases arising from the same trial illustrate the point. In the first, a fully-tried Title VII sex harassment case ends with a liability verdict against the employer, but with $0 in damages. Yet creative lawyering saves the day, preserving prevailing-party status by obtaining a reformation of the employee's personnel file. In the second, the panel remands for reconsideration of attorney's fees in light of an unaccepted Rule 68 offer of judgment.
The original Title VII was centered on injunctive relief, principally putting protected-class employees to work. So this Fifth Circuit case is a valuable one, reminding us of the roots of the law and why reinstatement remains the presumptive remedy in discrimination cases.
The Fifth Circuit becomes the first federal court of appeals to recognize a remedy for a plan's failure to notify a COBRA participant of the termination of a health-care plan under 29 U.S.C. § 1166(a)(4): award of a civil penalty under 29 U.S.C. §§ 1132(a)(1)(A) and 1132(c)(1).
The Ninth Circuit becomes the fourth court of appeals to recognize tax gross-up awards to successful Title VII plaintiff, which recognize (and compensate for) the tax penalty that plaintiff suffer when they receive lump sums of back pay in a single tax year.
Here's a timely reminder to include a prayer for nominal damages in Title VII and ADA complaints. At least in some circuits, including the Ninth, such relief is deemed equitable and thus may protect a claim from being mooted by intervening changed circumstances. That little toehold for $1.00 in damages may be the difference between outright dismissal and prevailing-party status.
The fourth Circuit affirms a jury verdict and back-pay relief of $586,860 in favor of the EEOC, in a Title VII religious accommodation case where the employer stubbornly "belie[ved] that it could rely on its own understanding of scripture to limit the scope of the accommodation it offered" an employee who, because of his Christian faith, refused to use a hand scanner.
The Sixth Circuit, in a 2-1 opinion, issues an important remedies ruling under the Employee Retirement Income Security Act (ERISA). The majority holds that a disability plan participant who was wrongfully denied benefits was entitled to both recovery of the benefit and disgorgement of the plan's profits from the delay of payment. The disgorgement remedy - affirmed by the panel majority - was $3.8 million, based on the finding that the plan treated the withheld benefit as general equity and earned 11 to 39% annually on the money.
The Eleventh Circuit takes a state university to task, in the very first lines of its opinion, for permitting a race (and gender) hostile environment to persist in one of its departments: "The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama." The panel affirms a jury verdict in favor of There plaintiffs for harassment and retaliation, plus a cumulative award of over $1 million.
A senior executive wins a jury trial for retaliation under the ADEA and Massachusetts state law, with an award of back and front pay, emotional distress damages and liquidated (double) damages. The First Circuit substantially preserves the judgment against the employer and affirms injunctive relief to restore plaintiff to the company's benefit plans, though it tamps down the compensatory damage award on grounds of excessiveness.
Here's a lesson that some must re-learn, even twenty years after the passage of the 1991 Civil Rights Act that reformed the remedial provisions of Title VII: compensatory damages are an entirely separate kind of relief from make-whole back- and front-pay. The Second Circuit reverses a judge's order denying make-whole relief on the ground that the jury award of $300,000 in compensatory damages (for pain, suffering and loss of reputation) was enough.