Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991

The U.S. Equal Employment Opportunity Commission

     1.   SUBJECT: Enforcement Guidance: Compensatory and Punitive
          Damages Available under § 102 of the Civil Rights Act
          of 1991.

     2.   PURPOSE: This enforcement guidance sets forth the
          Commission's position on the availability of compensatory
          and punitive damages pursuant to the Civil Rights Act of
          1991, § 102, "Damages in Cases of Intentional
          Discrimination."

     3.   EFFECTIVE DATE: July 14, 1992.

     4.   EXPIRATION DATE: As an exception to EEOC Order 205.001,
          Appendix B, Attachment 4, § a(5), this Notice will
          remain in effect until rescinded or superseded.

     5.   ORIGINATOR: Title VII/EPA Division, Office of Legal Counsel.

     6.   INSTRUCTIONS: File at end of Compliance Manual with other
          Policy or Enforcement Guidance.

     7.   SUBJECT MATTER:

          This enforcement guidance sets forth the Commission's
     position on how to assess compensatory and punitive damages under
     § 102 of the Civil Rights Act of 1991, 105 Stat 1071, Pub.
     L. No. 102-166 (hereinafter referred to as § 1981A).1

     I.     RIGHT TO RECOVERY

          Section 1981A(a)(1) provides that a complaining party2 may
     recover compensatory and punitive damages against a respondent3
     who has engaged in unlawful intentional discrimination in
     violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
     § 2000e et seq., unless that complaining party can recover
     under 42 U.S.C. § 1981. Only race discrimination claims can
     be brought under § 1981.4

          Damages are available in addition to any relief authorized
     under § 706(g) of Title VII.5 Therefore, § 1981A does
     not affect the right to backpay, frontpay, or any type of relief
     already recoverable under Title VII. Damages are authorized only
     in cases of intentional discrimination and are therefore not
     available where the charge alleges that neutral employment
     practices have an adverse impact. Section 1981A(a)(1).

          As indicated above, § 1981A(a) provides for damages
     under Title VII, if the complaining party "cannot recover" under
     § 1981. For purposes of the Commission's administrative
     enforcement process, the question arises as to the precise
     meaning of the "cannot recover" language. The Commission has no
     jurisdiction over § 1981, nor will the Commission, during
     the investigation and conciliation process, be able to determine
     the scope or outcome of a § 1981 action brought by the
     charging party. Thus, in processing charges, the Commission will
     seek compensatory and punitive damages, as appropriate, whether
     or not an individual may have a cause of action under §
     1981.

          This interpretation is supported by the Sponsors'
     Interpretative Memorandum, 137 Cong. Rec. S15,484 (daily ed. Oct.
     30, 1991), which explains that the purpose of the "cannot
     recover" language was "to assure that a complaining party does
     not obtain duplicative damage awards against a single respondent
     under both section 1981 and section 1981A ... [and that] the
     complaining party need not prove that he or she does not have a
     cause of action under section 1981 in order to recover damages in
     the section 1981A action." In addition, the Interpretative
     Memorandum of Representative Edwards, co-sponsor of HR-1 (House
     Bill) and Chairman of the Subcommittee on Civil and
     Constitutional Rights of the House Judiciary Committee which was
     responsible for HR-1, asserts that "if a party has a potential
     cause of action under Section [1981], but for whatever reason
     does not bring it, that party 'cannot recover under section
     [1981]'...," and hence can recover under § 1981A. "No party
     is under any obligation to proceed under one or the other statute
     or to waive any cause of action under either statute as a
     condition of proceeding." 137 Cong. Rec. H9527 (daily ed. Nov. 7,
     1991).

          Therefore, at least, for purposes of charge processing, the
     Commission will seek damages where otherwise appropriate, even if
     the complaining party has an ongoing § 1981 court action, as
     long as the complaining party has not recovered under §
     1981. Because the Commission has no enforcement authority under
     § 1981, its decisions concerning appropriate relief cannot
     rest on contingencies that may, or may not, occur under §
     1981. Any other interpretation would prevent the Commission from
     being able to settle race discrimination claims, to the equal
     detriment of complaining parties and respondents.

          Section 1981A(a)(2) provides the same remedies for
     intentional violations of the federal employee provisions of the
     Rehabilitation Act of 1973, 29 U.S.C. § 791, and Title I of
     the Americans with Disabilities Act of 1990, 42 U.S.C. §
     12101 et seq. However, damages are not available in disability
     discrimination cases which involve reasonable accommodation if
     the respondent "demonstrates good faith efforts, in consultation
     with the person with a disability," to provide a reasonable
     accommodation. Section 1981A(a)(3). For example, assume that a
     respondent consulted with a sight impaired applicant to determine
     whether any reasonable accommodations exist to enable the
     applicant to perform this particular job. The applicant informs
     the respondent that a scanner would reasonably accommodate him.
     The scanner is very expensive and the respondent believes that a
     magnifier, backed up by the office secretary as a part-time
     reader, would reasonably accommodate the applicant. The applicant
     subsequently files a charge and the Commission concludes that,
     under the particular circumstances of that job, the magnifier
     plus part-time reader was not an effective reasonable
     accommodation. Thus, the Commission concludes that the respondent
     failed to provide a reasonable accommodation and is therefore
     liable for discrimination. While the respondent will be liable
     for backpay and instatement, as appropriate, the Commission will
     not seek compensatory or punitive damages in this case because
     the respondent consulted with the complaining party and had a
     good faith belief that it had provided a reasonable
     accommodation.

          Finally, damages may not be available in certain cases where
     the employer acted with both legitimate and unlawful motives
     (mixed motives). Section 107(b) (to be codified at §
     706(g)(2)(B) of Title VII). See EEOC Enforcement Guidance No.
     N915.002, "Recent Developments in Disparate Treatment Theory,"
     July 14, 1992, for a full discussion of this issue.

     II.     TYPES AND EXTENT OF RECOVERY

          Section 1981A(b) sets limitations on certain damages that
     complaining parties may recover. First, it specifies that
     punitive damages are available only if the complaining party
     demonstrates that the respondent engaged in discrimination "with
     malice or reckless indifference to the federally protected rights
     of an aggrieved individual." It also provides that punitive
     damages are not available against a governmental entity or
     political subdivision.

          Second, § 1981A(b) reiterates that compensatory damages
     do not include any relief authorized under § 706(g) of Title
     VII. Third, it provides a limitation on the sum of punitive
     damages and compensatory damages for "future pecuniary losses,
     emotional pain, suffering, inconvenience, mental anguish, loss of
     enjoyment of life, and other nonpecuniary losses." The limitation
     on the amount of damages (caps) is based on the size (number of
     employees)6 of the respondent. The limitations are stated as
     follows:

          15 to 100 employees                     :     $50,000
          101 to 200 employees                    :     $100,000
          201 to 500 employees                    :     $200,000
          501 employees or more                   :     $300,000

     The limitations do not, on their face, apply to respondents who
     have fewer than fifteen employees, although labor organizations
     and employment agencies with fewer than fifteen employees may be
     subject to Title VII.7 Thus, a literal interpretation of the
     provision would potentially subject them to unlimited damages.
     Such an interpretation would be inconsistent with Congress' clear
     intent to spare small respondents from large damage awards. The
     provision could also be read to mean that labor organizations and
     employment agencies with fewer than fifteen employees are not
     subject to any damages. The Commission rejects both
     interpretations and concludes that all covered employment
     agencies and labor organizations with 100 or fewer employees are
     subject to the $50,000 cap on damages.

          When the Commission, or an individual, is pursuing a claim
     on behalf of more than one person, the damage caps are to be
     applied to each aggrieved individual. For example, where the
     Commission files suit on behalf of ten complaining parties,
     against an employer who has 1000 employees, each complaining
     party may receive (to the extent appropriate) up to $300,000. The
     respondent's total liability for all ten complaining parties may
     be up to $3,000,000.8

          Because relief recoverable under § 706(g) is not deemed
     to be compensatory damages, complaining parties may recover full
     compensation for back pay, interest on backpay, frontpay, or any
     relief that would have been available under Title VII, § 505
     of the Rehabilitation Act, or the ADA, without inclusion in the
     caps. Although some may contend that frontpay is a "future
     pecuniary loss" to be included in the caps, the Commission
     disagrees. Frontpay is a type of "relief authorized under Title
     VII" and, therefore, is excluded from the definition of
     compensatory damages and is not included in the caps.9

          Past pecuniary losses are also not included in the caps and
     are fully compensable where actual out-of-pocket losses can be
     shown. Section 1981A(b)(3) limits only claims that typically do
     not lend themselves to precise quantification, i.e., punitive
     damages, future pecuniary losses, and nonpecuniary losses.

             Example: Complaining Party is subjected to brutal racial
             harassment and is subsequently demoted. As a result, she
             suffers from severe depression. She spends $20,000 in
             psychiatric and medical bills for treatment of the
             depression. Her psychiatrist also testifies that CP will
             require approximately two additional years of therapy. CP
             may receive $20,000 for the medical bills and full
             backpay and frontpay awards, all of which are fully
             compensable and not included in the caps. She may also
             receive damages for the depression (nonpecuniary loss),
             damages for future psychiatric bills for the next two
             years (future pecuniary losses), and punitive damages.
             The respondent has 35 employees. The sum of the damages
             for the depression, future psychiatric expenses, and
             punitive damages cannot exceed the statutory cap of
             $50,000.

          A.     Compensatory Damages

          Compensatory damages are awarded to compensate a complaining
     party for losses or suffering inflicted due to the discriminatory
     act or conduct. See Carey v. Piphus 435 U.S. 247, 254 (1978)
     (purpose of damages is to "compensate persons for injuries caused
     by the deprivation of constitutional rights"). Compensatory
     damages "may be had for any proximate consequences which can be
     established with requisite certainty." 22 Am Jur 2d Damages
     § 45 (1965)" Compensatory damages include damages for past
     pecuniary loss (out-of-pocket loss), future pecuniary loss, and
     nonpecuniary loss (emotional harm). Compensatory damages are
     allowed against federal, state, and local governments and private
     sector employers.

          The following section sets forth the legal parameters for
     computing compensatory and punitive damages where appropriate.

               1.     Pecuniary Losses

          Pecuniary losses include, for example, moving expenses, job
     search expenses, medical expenses,10 psychiatric expenses,
     physical therapy expenses, and other quantifiable out-of-pocket
     expenses that are incurred as a result of the discriminatory
     conduct. To recover damages, the complaining party must prove
     that the employer's discriminatory act or conduct was the cause
     of his loss. The critical question is whether the complaining
     party incurred the pecuniary losses as a result of the employer's
     discriminatory action or conduct.

          Section 1981A distinguishes past and future pecuniary
     losses, in that future pecuniary losses are subject to the caps,
     while past pecuniary losses are not. The Commission concludes
     that past pecuniary losses are out-of-pocket losses that occurred
     prior to the date of the resolution of the damage claim, i.e.,
     conciliation, settlement, or the conclusion of litigation. The
     amount to be awarded for past pecuniary losses can be determined
     by receipts, records, bills, cancelled checks, confirmation by
     other individuals, or other proof of actual losses and expenses.
     Damages for past pecuniary losses will not normally be sought
     without documentation.

          Future pecuniary losses are out-of-pocket expenses that are
     likely to occur after conciliation, settlement, or the conclusion
     of litigation.11 As noted previously, future pecuniary losses are
     subject to the caps and do not include frontpay. Future pecuniary
     losses include the same expenses listed above, if these losses
     will continue after settlement, conciliation or litigation.

          The complaining party has a duty to mitigate his/her
     damages. A complaining party may not recover damages for any harm
     that (s)he could have avoided or minimized with reasonable
     effort. See Restatement (Second) of Torts, § 918(1).12
     However, the respondent has the burden of showing that the
     complaining party failed to exercise reasonable diligence to
     mitigate his/her damages. Cf., e.g., Weaver v. Casa Gallardo,
     Inc., 922 F.2d 1515, 1527, 55 EPD Par. 40,540 (11th Cir. 1991)
     (employer has the burden of showing that the plaintiff failed to
     make reasonable efforts to find work to mitigate his damages when
     seeking backpay); Fleming v. County of Kane, State of Ill., 898
     F.2d 553, 560 (7th Cir. 1990) (the burden is on the employer to
     prove, as an affirmative defense, that the employee failed to
     mitigate damages when seeking lost wages); Woolridge v. Marlene
     Industries Corp., 875 F.2d 540, 548, 53 EPD Par. 39,772 (6th Cir.
     1989) (defendant has the burden of producing sufficient evidence
     to establish the amount of interim earnings or lack of diligence
     in mitigating damages on the part of the plaintiff). Therefore,
     if the respondent can prove that the complaining party failed to
     exercise reasonable diligence to mitigate his/her damages and
     could have avoided or minimized such damages with reasonable
     effort, the damages may be reduced accordingly.

             Example: Complaining Party is a nurse in New York City,
             which has a critical nursing shortage. CP was fired when
             she rejected the sexual advances of the hospital
             administrator. CP has been unemployed for over a year.
             She seeks recovery for past pecuniary losses, which
             include, among other losses, moving expenses to
             California and job search expenses in California. CP
             maintains that it was necessary to move to California to
             find another nursing position. The respondent proves that
             CP could have found a comparable nursing position in New
             York City with reasonable diligence within a matter of
             weeks and that her New York job search expenses would
             have been minimal. Therefore, CP's recovery of damages
             for her moving expenses and job search expenses in
             California may be limited to the amount of the job search
             expenses she would have incurred in New York City.
             Backpay and damages sought for the other pecuniary losses
             incurred during her year-long unemployment may also be
             reduced, since the respondent has proved that she could
             have found another job within a few weeks.

               2.     Nonpecuniary Losses

          Damages are available for the intangible injuries of
     emotional harm such as emotional pain, suffering, inconvenience,
     mental anguish, and loss of enjoyment of life. Other nonpecuniary
     losses could include injury to professional standing, injury to
     character and reputation, injury to credit standing, loss of
     health, and any other nonpecuniary losses that are incurred as a
     result of the discriminatory conduct. Nonpecuniary losses for
     emotional harm are more difficult to prove than pecuniary
     losses.13 Emotional harm will not be presumed simply because the
     complaining party is a victim of discrimination.14 The existence,
     nature, and severity of emotional harm must be proved. Emotional
     harm may manifest itself, for example, as sleeplessness, anxiety,
     stress, depression, marital strain, humiliation, emotional
     distress, loss of self esteem, excessive fatigue, or a nervous
     breakdown. Physical manifestations of emotional harm may consist
     of ulcers, gastrointestinal disorders, hair loss, or headaches.

          An award for emotional harm is warranted only if there is
     sufficient causal connection between the respondent's illegal
     actions and the complaining party's injury. See Gore v. Turner,
     563 F.2d 159, 164 (5th Cir. 1977). The discriminatory act or
     conduct must be the cause of the emotional harm. The claim of
     emotional harm will be seriously undermined if the onset of
     symptoms of emotional harm preceded the discrimination. However,
     if a complaining party had preexisting emotional difficulties and
     his mental health deteriorates as a result of the discriminatory
     conduct, the additional harm may be attributed to the respondent. 
     The fact that the complaining party may be unusually emotionally
     sensitive and incur great emotional harm from discriminatory
     conduct will not absolve the respondent from responsibility for
     the greater emotional harm. Williamson v. Handy Button Machine
     Company, 817 F.2d 1290, 1294, 43 EPD Par. 37,178 (7th Cir. 1987)
     ("perhaps [plaintiff] was unusually sensitive, but a tortfeasor
     takes its victims as it finds them"). For example, suppose the
     Commission finds that the respondent is liable for sexual
     harassment against three female employees, one of whom is an
     incest victim. The incest victim incurred much greater emotional
     harm from the sexual harassment than did her two co-workers. The
     respondent is liable for the greater emotional harm that the
     incest victim suffered.

          For charges alleging emotional harm, consider factors that
     are directly relevant to whether and to what extent the employer
     caused the employee's emotional harm. For example, in Cowan v.
     Prudential Insurance Co., 852 F.2d 688, 690-91, 47 EPD Par.
     38,167 (2d Cir. 1988), the court found that defendant's failure
     to promote the plaintiff caused him severe emotional distress,
     humiliation, loss of self esteem, marital problems, and heavy
     drinking. However, the court considered several factors to
     determine whether and to what extent the emotional harm was
     caused by the defendant or by other factors. The factors
     considered were that: 1) the plaintiff had not been subjected to
     overt racism or public humiliation; 2) upper management was not
     aware that race was a factor in the failure to promote the
     plaintiff, who had been offered three other less attractive
     positions; 3) the plaintiff had caused some of the humiliation
     and difficulties that he had with his co-workers because he told
     clients that he would be promoted and he criticized his
     co-workers in a newspaper article; and 4) the plaintiff had not
     sought counseling. The court found that these factors justified a
     lower amount than the plaintiff sought. In Vance v. Southern Bell
     Telephone and Telegraph Company, 863 F.2d 1503, 1516, 48 EPD Par.
     38,626 (11th Cir. 1989), the court found that an award of
     $500,000 in compensatory damages for mental distress, emotional
     harm, or humiliation resulting from racial discrimination was
     properly ruled excessive where there were other factors which
     probably contributed to the plaintiff's mental distress. The
     plaintiff had marital problems because her husband was named in a
     paternity suit by another woman, financial problems, problems
     resulting from an automobile accident, dietary problems, and
     family illnesses and deaths. Therefore, where a complaining
     party's emotional harm is due in part to personal difficulties,
     which were not caused or exacerbated by the discriminatory
     conduct, the employer is liable only for the harm resulting from
     the discriminatory conduct.

          The Commission will typically require medical evidence of
     emotional harm to seek damages for such harm in conciliation
     negotiations. However, evidence of emotional harm may be
     established by testimony. Gunby v. Pennsylvania Electric Company,
     840 F.2d 1108, 1121-22, 45 EPD Par. 37,785 (3d Cir. 1988), cert.
     denied, 492 U.S. 905, 50 EPD Par. 39,201 (1989); Cowan v.
     Prudential Insurance Co., 852 F.2d at 690-91. The "plaintiff's
     own testimony may be solely sufficient to establish humiliation
     or mental distress." Williams v. TransWorld Airlines, Inc., 660
     F.2d 1267, 1273, 27 EPD Par. 32,174 (8th Cir. 1981). For example,
     a plaintiff was awarded $52,644.80 in damages for mental anguish
     and emotional distress resulting from losing his house and car,
     marital harmony, and the respect of his children, after he was
     discriminatorily discharged. Muldrew v. Anheuser-Busch, Inc., 728
     F.2d 989, 33 EPD Par. 34,187 (8th Cir. 1984). In Block v. R.H.
     Macy & Co., Inc., 712 F.2d 1241, 1245, 32 EPD Par. 33,730 (8th
     Cir. 1983), the plaintiff was awarded $12,402 for "mental
     anguish, humiliation, embarrassment and stress," $7,598 in
     backpay, and $60,000 in punitive damages. The evidence presented
     was that the supervisor openly manifested racial bias against
     Blacks by making racially offensive references to the plaintiff,
     another employee, and customers. On one occasion, the supervisor
     and plaintiff got into a dispute during which the supervisor
     berated the plaintiff in street language in front of coworkers
     and customers, although she never addressed White employees in
     this manner. The supervisor reported the dispute to management
     and told them that she wanted plaintiff "out of there."
     Management discharged the plaintiff without asking for her
     version of the incident, although they were well aware of the
     supervisor's racial bias. The plaintiff testified that she "cried
     and felt angry" with her supervisor after her discharge.
     Plaintiff further testified that she was unemployed for thirteen
     months and because of her financial dilemma, she suffered
     sleeplessness, anxiety, embarrassment, and depression. The jury
     found this evidence sufficient to award damages for mental
     distress.

          Similarly, in Stallworth v. Shuler, 777 F.2d 1431, 38 EPD
     Par. 35,806 (11th Cir. 1985), a case brought under § 1983
     and § 1981, the court affirmed an award for $100,000 for
     humiliation and emotional distress. Over a period of years, the
     plaintiff was consistently passed over for administrative
     positions and principalships for racial reasons, while less
     qualified White persons were promoted. As a result, plaintiff
     suffered emotional stress, loss of sleep, marital strain, and
     humiliation. The defendant stated that there was no evidence that
     plaintiff missed work, received professional help, or slipped in
     his relationships with students or co-workers. Plaintiff
     countered that he was careful not to give the respondent a reason
     not to promote him. The court found that plaintiff's evidence was
     sufficient to award damages. However, for conciliation or
     settlement purposes, testimony solely by the complaining party
     may not be sufficient to establish emotional harm. There should
     be corroborating testimony by the complaining party's co-workers,
     supervisors, family, friends, or anyone else with knowledge of
     the emotional harm.

          Damage awards for emotional harm vary significantly and
     there are no definitive rules governing the amounts to be
     awarded. However, compensatory damage awards must be limited to
     the sums necessary to compensate the plaintiff for actual harm,
     even if the harm is intangible. Carter v. Duncan-Huggins, Ltd,
     727 F.2d 1225, 33 EPD Par. 34,187 (D.C. Cir. 1984). In Williamson
     v. Handy Button Machine Company, 817 F.2d at 1293-95, the court
     upheld a damage award of $10,000 for the psychological disability
     of a nervous breakdown after the following sequence of events.
     Plaintiff was discriminated against for over a decade. She was
     assigned unskilled work, although she was qualified for, and
     occasionally performed, skilled work. Plaintiff was passed over
     for numerous promotions, in favor of less qualified White
     employees with less seniority. Plaintiff was also demoted to a
     lower status department despite her protests and the seniority
     rule in the collective bargaining agreement. Finally, on one
     occasion, the plaintiff used an upstairs bathroom, where she had
     been assigned a locker by the company, and was loudly berated in
     scatological terms by a supervisor for using this particular
     bathroom. The psychiatrist characterized the bathroom incident as
     the straw that broke the camel's back. The plaintiff was never
     able to return to work. In addition to the award for emotional
     harm, plaintiff received $130,000 for backpay and frontpay,
     $10,000 for medical and psychological expenses, and $100,000 for
     punitive damages.

          In comparison, in another case brought under § 1981,
     the plaintiff received $123,000 for emotional distress. The
     plaintiff had been under stress continuously for fear of making a
     mistake on the job, because he was discriminatorily denied proper
     training which he needed for adequate performance. The
     plaintiff's White coworkers, both senior and junior to the
     plaintiff, regularly received formal training. He was denied pay
     raises equivalent to those of his White co-workers because of his
     poor evaluations, which stressed the need for training. When the
     plaintiff finally received training after numerous requests, it
     was superficial in nature. Plaintiff's stressful situation
     resulted in high absenteeism and he was placed on probation. He
     filed a complaint and was subsequently discharged. Plaintiff's
     psychiatrist testified that the plaintiff was suffering from
     anxiety, stress, and depression. The court found that this was an
     adequate basis for the award. Plaintiff also received $176,000 in
     backpay, and $300,000 in punitive damages. Rowlett v.
     Anheuser-Busch, 832 F.2d 194, 44 EPD Par. 37,428 (1st Cir. 1987).

          The method for computing nonpecuniary damages during
     conciliation or settlement should typically be based on a
     consideration of the severity of harm and the time that the
     complaining party has suffered from the emotional harm.15 To
     determine the severity of the harm consider, for example, whether
     the harm consisted of occasional sleeplessness, or a nervous
     breakdown resulting in years of psychotherapy. The length of time
     that the complaining party has suffered from the emotional harm
     is also relevant. Of course, a complaining party who has suffered
     from severe depression for two months will be awarded less money
     than a complaining party who has suffered from severe depression
     for a year. However, different methods of computing damage
     amounts for emotional harm may be appropriate in certain cases.
     Since medical evidence is important, a medical release should be
     obtained from the complaining party whenever emotional or
     physical harm is alleged.

          B.     Punitive Damages

          Punitive damages are awarded to punish the respondent and to
     deter future discriminatory conduct. They are not available
     against a federal, state, or local government, a government
     agency, or a political subdivision. Punitive damages are
     available only where the respondent acted with "malice or with
     reckless indifference to the federally protected rights of an
     aggrieved individual." Section 1981A(b)(1).

          This standard is consistent with § 1981 and therefore
     should be interpreted consistently.16 The standard for awarding
     punitive damages under § 1981 is whether the defendant acted
     with malice, an evil motive, or recklessness or callous
     indifference to a federally protected right. Stephens v. South
     Atlantic Canners, Inc., 848 F.2d 484, 489, 46 EPD Par. 38,032
     (4th Cir. 1988), cert. denied, 488 U.S. 996 (1988). Additionally,
     under § 1983, plaintiffs may recover punitive damages when
     "the defendant's conduct is shown to be motivated by evil motive
     or intent, or when it involves reckless or callous indifference
     to the federally protected rights of others." Smith v. Wade, 461
     U.S. 30, 56 (1983); Garza v. City of Omaha, 814 F.2d 553, 556, 43
     EPD Par. 37,072 (8th Cir. 1987) (punitive damages under §
     1983 "may be awarded where the defendant exhibits oppression,
     malice, gross negligence, willful or wanton misconduct, or
     reckless disregard for the civil rights of the plaintiff").

               1.     Determining Malice or Reckless Disregard

          A "finding of liability does not of itself entitle a
     plaintiff to an award of punitive damages." Yarbrough v. Tower
     Oldsmobile, 789 F.2d 508, 514, 40 EPD Par. 36,216 (7th Cir.
     1986). However, conscious, purposeful discrimination may be
     sufficient to warrant punitive damages.17 As the First Circuit
     has observed, "can it really be disputed that intentionally
     discriminating against a [B]lack man on the basis of his skin
     color is worthy of some outrage?" Rowlett v. Anheuser-Busch, 832
     F.2d 194, 206, 44 EPD Par. 37,428 (1st Cir. 1987). In Brown v.
     Freedman Baking Company, 810 F.2d 6, 42 EPD Par. 36,779 (1st Cir.
     1987), punitive damages were warranted for three Black
     plaintiffs, after two plaintiffs were fired because a manager
     believed that it "just doesn't look good" for too many Blacks to
     work in the main store. The third plaintiff complained and was
     told that when too many Blacks get together "they get arrogant."
     He was fired when he provided a statement to the EEOC on the
     other plaintiffs' behalf. The court stated that it "would not be
     unreasonable for the jury to view such conduct as outrageous and
     deserving of substantial punitive damages." Id. at 11.

          A number of factors may be considered to determine whether
     conduct was committed with malice or reckless indifference to the
     complaining party's federally protected rights. This evidence is
     likely to have already been obtained during the liability phase
     of the investigation. The list is nonexclusive and other relevant
     factors may also be considered.

          1.  The degree of egregiousness and nature of the
     respondent's conduct should be considered. See Restatement
     (Second) of Torts, § 908(2). In EEOC v. Gaddis, 733 F.2d
     1373, 1380, 34 EPD Par. 34,348 (10th Cir. 1984), the court held
     that allowance of punitive damages "involves an evaluation of the
     nature of the conduct in question." The respondent had made an
     employment offer to the plaintiff, an out-of-state resident,
     based upon a recommendation by another employee. Plaintiff
     accepted the position and his name was posted on an assignment
     board as a new employee. The respondent met the plaintiff for the
     first time when he reported for work. The respondent was visibly
     upset when he discovered that the plaintiff was Black and stated
     that a Black person would never be allowed to work in the office.
     The plaintiff worked for several days and was fired. The
     respondent stated that no vacancy existed, although it
     subsequently hired two White males for the position. The court
     determined that this conduct warranted punitive damages.

          Conduct which is shocking or offends the conscience is
     egregious and warrants punitive damages. For example, CP's
     supervisor often asks CP for dates and sometimes makes sexual
     remarks to her, although CP has repeatedly asked him to leave her
     alone. The supervisor finally tells CP, who is the most qualified
     person for an upcoming promotion, that if she wants the promotion
     she must have sex with him. The supervisor's conduct may be
     considered "shocking."

          2.  The nature, extent, and severity of the harm to the
     complaining party should be considered. The Restatement (Second)
     of Torts, § 908(2); Keenan v. City of Philadelphia, 55 FEP
     Cases 932, 943 (E.D. Pa. 1991).

          3.  The duration of the discriminatory conduct is relevant.
     For instance, an extended period of discriminatory conduct
     "suggests an official policy of discrimination as opposed to the
     work of a renegade supervisor." Williamson v. Handy Button
     Machine Company, 817 F.2d at 1296. Evidence that the respondent
     tolerated or condoned the discriminatory conduct over a period of
     time could constitute malice and/or reckless indifference.

          4.  The existence and frequency of similar past
     discriminatory conduct by the respondent should be considered.
     For example, if there is a continuing pattern of harassment by
     the respondent, it may be sufficient to find malice or reckless
     indifference.

          5.  Evidence that the respondent planned and/or attempted to
     conceal or cover-up the discriminatory practices or conduct is
     relevant.

          6.  The employer's actions after it was informed of
     discrimination should be considered. An employer who has notice
     of discriminatory conduct and fails to take action could incur
     punitive damages. See Yarbrough v. Tower Oldsmobile, 789 F.2d at
     514-15 (punitive damages warranted.under § 1981 where the
     plaintiff testified that his supervisor reprimanded him in
     writing, without cause, and transferred him to a less desirable
     work area after saying "[w]e don't want no Black guy in the front
     of the shop;" the plaintiff brought his complaints of
     discrimination to management, who failed to respond and was found
     to be "indifferent to his federally protected rights").

          7.  Proof of threats or deliberate retaliatory action
     against complaining parties for complaints to management or
     filing a charge normally will constitute malice. Hunter v.
     Allis-Chalmers, 797 F.2d 1417, 1425, 41 EPD Par. 36,417 (7th Cir.
     1986) (punitive damages warranted where the defendant had
     deliberately fired a worker for making well-founded complaints
     with a state FEP agency about persistent acts of racial
     harassment); Erebia v. Chrysler Plastic Products Corp., 772 F.2d
     1250, 1260, 37 EPD Par. 35,317 (6th Cir. 1985) (manager's threat
     to hurt plaintiff economically for pursuing his complaints of
     harassment may constitute malice), cert. denied, 475 U.S. 1015
     (1986).

               2.     Calculation of Punitive Damage Amount

          If malice or reckless disregard of the complaining party's
     rights is found, respondents may be liable for punitive damages
     up to the maximum amount allowed.18 Congressional intent was to
     make respondents "liable for the non-wage economic consequences
     of [intentional] discrimination up to the full extent of the
     stated limitations." Sponsors' Interpretative Memorandum, 137
     Cong. Rec. S15,484 (daily ed. Oct. 30, 1991).

          Of course, the punitive damage award should "bear some
     relation to the 'character of the defendant's act' along with
     'the nature and extent of the harm to the plaintiff that the
     defendant caused."' Rowlett v. Anheuser-Busch, 832 F.2d at 207,
     quoting, Restatement (Second) of Torts, § 908(2). These
     factors are discussed above on pages 15 and 16.

          The financial position of the respondent is also relevant.
     City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 (1981)
     ("evidence of a tortfeasor's wealth is traditionally admissible
     as a measure of the amount of punitive damages that should be
     awarded"); Rowlett v. Anheuser-Busch, 832 F.2d at 207 ("a rich
     defendant may well be required to pay more than a poor one who
     committed the same wrong"). The award should be considered in the
     context of the respondent's monetary resources. The amount of
     punitive damages should "sting," but not "destroy" the
     respondent. Keenan v. City of Philadelphia, 55 FEP Cases at
     944-45. The following factors are relevant in determining a
     respondent's financial position. Note, however, that this list is
     not exclusive and other relevant factors may also be considered.

               A.     The revenues and liabilities of the business.

               B.     The fair market value of the respondent's
                      assets.

               C.     The amount of liquid assets on hand, which
                      includes amounts that they can reasonably
                      borrow.

               D.     The respondent's propensity to generate income
                      in the future -- projected earnings.

               E.     The resale value of the business. This is
                      particularly useful where the business has a
                      unique spot in the market. For instance, large
                      companies may be seeking to buy the business.

               F.     Consider whether the respondent is affiliated
                      with, or a subsidiary of, a larger entity that
                      could provide additional financial resources to
                      the respondent.

          In Bessier v. Precise Tool & Engineering Co., Inc., 778 F.
     Supp. 1509, 57 FEP Cases 1249 (W.D. Mo. 1991), the plaintiff was
     granted discovery of defendant's financial records to prepare a
     case on the issue of punitive damages. The financial records

     included: 1) financial statements; 2) income tax returns; 3)
     documents reflecting the defendant's gross income, net income,
     and expenditures; 4) bank statements and deposit records; and 5)
     general ledgers. The defendant was also compelled to answer
     interrogatories as to its net worth. See also Heller v. Ebb Auto
     Co., 55 EPD Par. 40,431, 53 FEP Cases 911 (D. Or. 1990)
     (Plaintiff may be entitled to defendant's profit and loss
     statements and balance statements after making a prima facie
     showing of entitlement to punitive damages).

     III.     CHARGE RESOLUTION

          Damages are often a necessary component of full relief, to
     the extent that unlawful conduct occurred on or after November
     21, 1991. EEOC Policy Guidance No. 915.002, "Application of the
     Damages Provisions of the Civil Rights Act of 1991 to Pending
     Charges and Pre-Act Conduct," December 27, 1991.

          Damages for past pecuniary losses should be routinely
     sought. Do not assume emotional harm, or automatically seek
     damages for such harm. Typically, the Commission will require
     medical evidence of emotional harm to seek damages for such harm
     in conciliation negotiations. However, in exceptional cases, the
     complaining party may establish emotional harm without medical
     documentation, but (s)he should have a reasonable justification
     for not seeking medical attention for the emotional harm.

          If malice or reckless disregard of the complaining party's
     rights is found, the District Director and the Regional Attorney
     should be consulted, who will, in turn, consult with Headquarters
     on a case-by-case basis.
 
 
 

     ______7/14/92____________     _______________-S-_________________
     Date                              Evan J. Kemp, Jr. Chairman

     1.     Section 102 will be codified at 42 U.S.C. § 1981,
     rather than as part of Title VII. The text of § 1981 is
     attached as Appendix A.

     2.     The term "complaining party" means the Equal Employment
     Opportunity Commission, the Attorney General, or a person who may
     bring an action or proceeding under Title VII, the Rehabilitation
     Act, or the Americans with Disabilities Act. Section 1981A(d)(1).

     3.     "The term 'respondent' means an employer, employment
     agency, labor organization, joint labor-management committee
     controlling apprenticeship or other training or retraining
     program, including an on-the-job training program, or Federal
     entity subject to section 717." Section 104(n) (to be codified at
     § 701(n) of Title VII).

     4.     42 U.S.C. § 1981 provides a cause of action for
     individuals who are discriminated against on the basis of race in
     the making and enforcing of contracts. The Civil Rights Act of
     1991 amends § 1981 to include all forms of racial bias in
     employment. Section 101(2)(b) of the Act provides that "the term
     'make and enforce contracts' includes the making, performance,
     modification, and termination of contracts, and the enjoyment of
     all benefits, privileges, terms and conditions of the contractual
     relationship." Race includes, to some extent, "ethnicity." See
     St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987) (§
     1981 prohibits racial discrimination as well as discrimination on
     the basis of "ancestry or ethnic characteristics").

     5.     Relief under § 706(g) of Title VII has traditionally
     been limited to equitable relief. See, e.g., Mitchell v. Seaboard
     System Railroad, 883 F.2d 451, 452, 51 EPD Par. 39,254 (6th Cir.
     1989) (Title VII plaintiffs are entitled to equitable relief, but
     not to compensatory damages). Equitable relief under §
     706(g) usually means backpay, reinstatement, and/or frontpay.
     Fringe benefits and all forms of compensation are included in
     backpay. EEOC "Policy Statement on Remedies and Relief for
     Individual Cases of Unlawful Discrimination," February 5, 1985.
     Injunctions against future discriminatory conduct by the
     respondent may also be imposed.

     6.     Part-time employees are included in this count. See EEOC
     Policy Guidance No. N-915-052, "Whether part-time employees are
     employees within the meaning of § 701(b) of Title VII and
     § 11(b) of the ADEA," April 20, 1990. Two circuits have
     concluded that part-time employees are not counted as employees
     for jurisdictional purposes. See, e.g., EEOC v. Garden and
     Associates, 956 F.2d 842 (8th Cir. 1992) (ADEA)- Zimmerman v.
     North American Signal Corp., 794 F.2d 347, 354, 31 EPD Par.
     33,486 (7th Cir. 1983) (ADEA). However, the conclusions in these
     cases were based on the definitional requirement that employers
     have the requisite number of employees "for each working day in
     each of twenty or more calendar weeks." Because §
     1981A(b)(3) does not contain the "for each working day"
     requirement for counting employees to determine a respondent's
     cap, the rationale for a Garden or Zimmerman type of result
     appears to have been eliminated.

     7.     See EEOC Compliance Manual, Volume II, § 605,
     Appendix N. This guidance explains that both labor organizations
     and employment agencies with fewer than fifteen employees may be
     covered by Title VII, if they regularly deal with Title VII
     covered employers. Labor organizations need only operate a hiring
     hall which procures employees for an employer or have fifteen
     members to be covered by Title VII. See 42 U.S.C. §
     2000e(e).

          Basing a union's damage caps on its number of employees,
     rather than on the number of its members, may have been a
     drafting error. However, since § 1981A(b)(3) specifically
     refers to the number of "employees," and since that is not
     inconsistent with the provision's purpose, the Commission
     interprets the statute to mean that the caps relate to the number
     of a union's employees, rather than to the number of its members.

     8.     Section 1981A(b)(3) provides that the amount of damages
     "shall not exceed [the caps] for each complaining party."
     Complaining party is defined as "the Equal Employment Opportunity
     Commission, the Attorney General, or a person who may bring an
     action under [Title VII, the ADA or the Rehabilitation Act]."
     Section 1981A(d) (emphasis added), Since each individual who
     states a claim under one of these statutes is one who may bring
     an action, each is eligible for damages up to the cap. This is
     true even when their claims are joined either in Commission or
     private litigation brought on behalf of several individuals, or
     in a class action brought by a private party.

          As a policy matter, any other construction would conflict
     with Congressional intent to make damages available to fully
     compensate persons harmed by discrimination and to deter further
     discrimination. Moreover, a contrary interpretation would be at
     least unwieldy, if not unworkable. If the Commission cannot seek
     damages on behalf of each aggrieved person in a single action, it
     would have to file numerous individual suits or recommend that
     each individual intervene in Commission actions.

     9.     The Sponsors' Interpretative Memorandum, 137 Cong. Rec.
     S15,484 (daily ed. Oct. 30, 1991), states that "damages cannot
     include backpay, the interest thereon, frontpay, or any other
     relief authorized under Title VII." (emphasis added). See also
     Representative Edwards' Interpretative Memorandum, 137 Cong. Rec.
     H9527 (daily ed. Nov. 7, 1991) (frontpay is relief authorized
     under Title VII and is excluded from damages). Moreover, courts
     generally find that frontpay is an available remedy under Title
     VII. See, e.g., Carter v. Sedgwick County, 929 F.2d 1501, 1505,
     56 EPD Par. 40,699 (10th Cir. 1991); Weaver v. Casa Gallardo,
     Inc., 922 F.2d 1515, 1528, 55 EPD Par. 40,540 (11th Cir. 1991);
     Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1449, 52 EPD
     Par. 39,585 (9th Cir. 1990); Pitre v. Western Electric Co. 843
     F.2d 1262, 127879, 46 EPD Par. 37,882 (10th Cir. 1988). But see
     Fortino v. Quasar Company, 950 F.2d 389, 57 EPD Par. 41,117 (7th
     Cir. 1991) (ADEA case questioning frontpay awards under Title VII
     because "Title VII authorizes only equitable relief and frontpay
     resembles common law damages for breach of employment contract").

     10.     Although compensatory damages were not available under
     Title VII prior to § 1981A, medical expenses have been
     awarded as part of § 706(g) relief in some circumstances.
     See, e.g., EEOC v. Service News Co., 898 F.2d 958, 53 EPD Par.
     39,736 (4th Cir. 1990) (court awarded unreimbursed medical
     expenses, which resulted from plaintiff's loss of health
     insurance after she was discriminatorily discharged); Weiss v.
     Parker Hannifan Corp., 747 F. Supp. 1118, 1132, 55 EPD Par.
     40,531 (D.N.J. 1990) (court awarded unreimbursed medical
     expenses, resulting from plaintiff's loss of health insurance, as
     part of backpay). In such cases, medical expenses would be
     excluded from the caps, either as relief authorized by §
     706(g) or as past pecuniary losses.

     11.     Congressional intent for including future pecuniary
     losses in the caps appears to have been to limit damages on
     losses that are typically difficult to quantify. If past
     out-of-pocket losses can be shown, they can be recovered without
     regard to the limitations on damages. Up to the time of
     resolution of the complaint, whether at conciliation, settlement,
     or the conclusion of litigation, actual out-of-pocket losses can
     be shown with some certainty.

     12.     By analogy, § 706(g) of Title VII provides that
     interim earnings or amounts earnable with reasonable diligence by
     the charging party shall operate to reduce a backpay amount.

     13.     Cases awarding compensatory and punitive damages under
     other civil rights statutes will be used for guidance in
     analyzing the availability of damages under § 1981A. Section
     1981 cases are particularly useful because Congress treated the
     § 1981A damage provisions as an amendment to § 1981.

     14.     Complaining parties should be informed that if they claim
     emotional harm, respondents may be able to obtain records of
     medical and/or psychiatric treatments for conditions relevant to
     the complained of symptoms. A respondent may also obtain relevant
     information concerning the complaining party's private life.

     15.     During litigation, the amount of damages will be decided
     by a jury if either party requests a jury. Jury trials will be
     available if a plaintiff seeks compensatory or punitive damages.
     Section 1981A(c).

     16.     "Punitive damages are available under [§ 1981A] to
     the same extent and under the same standards that they are
     available to plaintiffs under 42 U.S.C. § 1981. No higher
     standard may be imposed." Representative Edwards' Interpretative
     Memorandum, 137 Cong. Rec. H9527 (daily ed. Nov. 7, 1991).

     17.     Malice is defined as "a condition of mind which prompts a
     person to do a wrongful act willfully, that is, on purpose, to
     the injury of another." Black's Law Dictionary 862 (5th ed.
     1979). Thus, discriminatory conduct "is maliciously done if
     prompted or accompanied by ill will ... either toward the injured
     person individually or toward all persons in one or more groups
     ... of which the injured person is a member." Soderbeck v.
     Burnett County, 752 F.2d 285, 289 (7th Cir. 1985), cert. denied,
     471 U.S. 1117 (1985).

     18.     The sum of punitive damages, future pecuniary losses, and
     nonpecuniary losses may not exceed the damage caps set forth in
     § 1981A(b)(3). Therefore, punitive damage awards under
     § 1981A typically will not be "grossly excessive" or
     "shocking." See Rowlett v. Anheuser-Busch, 832 F.2d 194, 206, 44
     EPD Par. 37,428 (1st Cir. 1987) (punitive damage award of $3
     million ruled grossly excessive and reduced to $300,000); Vance
     v. Southern Bell Telephone and Telegraph Company, 863 F.2d 1503,
     1516, 48 EPD Par. 38,626 (11th Cir. 1989) (punitive damage award
     of $2.5 million is "high and rather shocking").
 

     APPENDIX A

          SEC. 102. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION

          The Revised Statutes are amended by inserting after section
     1977 (42 U.S.C. 1981) the following new section:

     "SEC. 1977A.     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 1964
     (42 U.S.C 2000e-5) against a respondent who engaged in unlawful
     intentional discrimination (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 or
     2000e-3), and provided that the complaining party cannot recover
     under section 1977 of the Revised Statutes (42 U.S.C. 1981), the
     complaining party may recover compensatory and punitive damages
     as allowed in subsection (b), in addition to any relief
     authorized 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 (as provided
     in section 107(a)), and section 505(a)(1) of the Rehabilitation
     Act of 1973 (29 U.S.C. 794a(a)(1)), respectively) against a
     respondent who engaged in unlawful intentional discrimination
     (not an employment practice that is unlawful because of its
     disparate impact) under section 501 of the Rehabilitation Act of
     1973 (29 U.S.C. 791) and the regulations implementing section
     501, or who violated the requirements of section 501 of the Act
     or the regulations implementing section 501 concerning the
     provision of a reasonable 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), 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 pursuant to section 102(b)(5) of the
     Americans with Disabilities Act of 1990 or regulations
     implementing section 501 of the Rehabilitation Act of 1973,
     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 damages 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.

          "(2) EXCLUSIONS FROM COMPENSATORY DAMAGES.- 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 of 1964.

          "(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 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 1977 of the Revised Statutes (42 U.S.C. 1981).

     "(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).

     "(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), 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), the Equal Employment Opportunity
     Commission, the Attorney General, a person who may bring an
     action or proceeding under section 505(a)(1) of the
     Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), 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. 12101 et
     seq.).

          "(2) DISCRIMINATORY PRACTICE.-The term 'discriminatory
     practice' means the discrimination described in paragraph (1), or
     the discrimination or the violation described in paragraph (2),
     of subsection (a)."

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