You cannot sweep lost wages under the carpet

Christine Bergerson won her sexual harassment trial against a state agency. The jury awarded her $580,000 in damages for pain and suffering. The jury also found that she was wrongfully terminated because of her gender. After the trial court reduced the pain and suffering award to $300,000 in keeping with the cap on such damages under Title VII, it decided she was not entitled to any back pay because the $300,000 award for pain and suffering was enough to make her whole under the statute. The Court of Appeals reverses.

The case is Bergerson v. New York State Office of Mental Health, decided on July 21. For practitioners, this case is a good primer on back and front pay under Title VII. The Court of Appeals has to provide this background in explaining why the trial court got it wrong in limiting the plaintiff's damages. In doing so, the district court said:

[Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay [Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices. . . . Additionally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress.

True, damages awards under Title VII have to make the plaintiff whole. But that does not mean that a large award for pain and suffering will cover any other damages to which the plaintiff might be entitled. All these damages awards serve a different purpose. Damages for pain and suffering are self-explanatory: "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," as Congress wrote into Title VII in 1991. But back pay is a separate area of damages entirely, compensating the plaintiff for "what the employee himself would have earned had he not been discharged." The Second Circuit (Miner, Kearse and Chin) thus reasons, "[b]ecause a backpay award requires a separate inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient."