sharon B. Pollard v. E.I. Dupont De Nemours Co 98-6317 98-6319 99-5125 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 98-6317, 98-6319, 99-5125 SHARON B. POLLARD, Plaintiff-Appellee, Cross-Appellant, v. E.I. DUPONT DE NEMOURS CO., Defendant-Appellant, Cross-Appellee. On Appeal from the United States District Court for the Western District of Tennessee BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF-APPELLEE, CROSS-APPELLANT'S PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST 1 BACKGROUND 2 ARGUMENT 4 THIS COURT SHOULD GRANT POLLARD'S PETITION FOR REHEARING EN BANC TO REVISIT, AND OVERRULE, ITS PRECEDENT HOLDING THAT FRONT PAY IS A FORM OF COMPENSATORY DAMAGES LIMITED BY THE STATUTORY CAPS ESTABLISHED IN THE CIVIL RIGHTS ACT OF 1991 . . . . . . . 4 CONCLUSION 14 CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES PAGE(S) Allison v. CITGO Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 11 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . 8 Bruno v. W.B. Saunders Co., 882 F.2d 760 (3d Cir. 1989) . . . 9 Cassino v. Reichhold Chemical, Inc., 817 F.2d 1338 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . 9 EEOC v. W & O, Inc., Nos. 98-5515 & 98-5646, ___ F.3d ___, 2000 WL 689712 (11th Cir. May 30, 2000) . . . . . . . . 11 Erebia v. Chrysler Plastic Products Corp., 891 F.2d 1212 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 7, 9 Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 11, 12 Graefenhain v. Pabst Brewing Co., 870 F.2d 1198 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . 9 Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1988) . . . . . . 8 Hamlin v. Charter Township of Flint, 965 F. Supp. 984 (E.D. Mich. 1997) . . . . . . . . . . . . . . . . . . 6, 10 Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997), cert. denied, 119 S. Ct. 64 (1998) . . . . . . . . . 1, 3 5, 6 7, 8 Kramer v. Logan County Sch. District No. R-1, 157 F.3d 620 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . 11, 12 Landgraf v. USI Film Products, 511 U.S. 244 (1994) . . . . 8, 12 Lussier v. Runyon, 50 F.3d 1103 (1st Cir. 1995) . . . . . . . . 11 Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999), cert. dismissed, 120 S. Ct. 1155 (2000) . . . . . . . . . . . . . . . 11, 12 McCue v. Kansas Department of Human Resources, 165 F.3d 784 (10th Cir. 1999) . . . . . . . . . . . . 10, 11 Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir.), cert. denied, 120 S. Ct. 48 (1999) . . . . . . . . . . . . 12 Morgan v. Arkansas Gazette, 897 F.2d 945 (8th Cir. 1990) . . . 9 Pollard v. E.I. DuPont de Nemours Co., Nos. 98-6317, 99-5125 & 98-6319, ___ F.3d ___, 2000 WL 680220 (6th Cir. May 26, 2000) . . . . . . . . . . . . . . . 2, 3 4 Pollard v. E.I. DuPont de Nemours, Inc., 16 F. Supp.2d 913 (W.D. Tenn. 1998) . . . . . . . . . . . . . . . . . . . 2, 3 Powers v. Grinnell Corp., 915 F.2d 34 (1st Cir. 1990) . . . . . 9 Rivera v. Baccarat, Inc., 34 F. Supp.2d 870 (S.D.N.Y. 1999) . . . . . . . . . . . . . . . . . . . 10, 13 Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 9 Roush v. KFC National Management Co., 10 F.3d 392 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 6, 7 Shore v. Federal Express Corp., 42 F.3d 373 (6th Cir. 1994) . 6, 7 Suggs v. ServiceMaster Education Food Management, 72 F.3d 1228 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 6, 8 Thurman v. Yellow Freight System, Inc., 97 F.3d 833 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 7 United States v. Powers, 194 F.3d 700 (6th Cir. 1999) . . . . . 8 Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998) . 11, 13 Wilson v. S & L Acquisition Co., 940 F.2d 1429 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 9 Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989) . . . . 9 STATUTES Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, § 2, reprinted in 42 U.S.C. § 1981, Historical and Statutory Notes . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 1981a . . . . . . . . . . . . . . . . . . . . . 1, 3 42 U.S.C. 1981a(b)(2) . . . . . . . . . . . . . . . . . 5, 7 42 U.S.C. § 1981a(b)(3) . . . . . . . . . . . . . . . . 2, 4 7 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(g) . . . . . . . . . . . . . . . . 5, 7 LEGISLATIVE HISTORY 137 Cong. Rec. 28,637 (1991) . . . . . . . . . . . . . . . . . 9 137 Cong. Rec. 29,046 (1991) . . . . . . . . . . . . . . . . . 10 137 Cong. Rec. 30,661 (1991) . . . . . . . . . . . . . . . . . 10 OTHER AUTHORITIES Compensatory and Punitive Damages Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), reprinted in EEOC Compliance Manual (CCH) § 603, ¶ 2062 . . . . . . . . . . . . . . . . . 11, 13 Lex Larson, Employment Discrimination § 93.03, 93-10 (2d ed. 1998) . . . . . . . . . . . . . . . . . . . . . . 8 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 98-6317, 98-6319, 99-5125 SHARON B. POLLARD, Plaintiff-Appellee, Cross-Appellant, v. E.I. DUPONT DE NEMOURS CO., Defendant-Appellant, Cross-Appellee. On Appeal from the United States District Court for the Western District of Tennessee BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF-APPELLEE, CROSS-APPELLANT'S PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and other federal statutes prohibiting discrimination in employment. This case raises the question of whether front pay is an element of compensatory damages under the Civil Rights Act of 1991. See 42 U.S.C. § 1981a (discussing the types of damages available in cases of intentional discrimination in employment). In Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997), cert. denied, 119 S. Ct. 64 (1998), this Court held that front pay is a form of compensatory damages, and therefore is subject to the statutory caps on damages set forth in 42 U.S.C. § 1981a(b)(3). In this case, which raises precisely the same issue regarding front pay, a panel of the Court held that it was bound by the decision in Hudson, but agreed with plaintiff-appellee/cross-appellant Sharon Pollard and amicus curiae Equal Employment Opportunity Commission that a review of the express language of the damages provision, its legislative history, the relevant case law and the concerns of public policy demonstrate that the Hudson case was wrongly decided. See Pollard v. E.I. DuPont de Nemours Co., Nos. 98-6317, 99-5125 & 98-6319, ___ F.3d ___, 2000 WL 680220 at *10 (6th Cir. May 26, 2000). Because of the importance of this issue to the availability of front pay as a remedy for violations of Title VII and other federal statutes prohibiting employment discrimination, and thus to the effective enforcement of those statutes, the Commission offers its views and urges this Court to grant Pollard's petition for rehearing en banc so that the decision in Hudson now may be overturned. BACKGROUND On August 20, 1998, the district court awarded $300,000 in compensatory damages to Pollard on her claim that she had been subjected to a hostile work environment at E.I. DuPont because of her sex. See generally Pollard v. E.I. DuPont de Nemours, Inc., 16 F. Supp.2d 913 (W.D. Tenn. 1998). In making this award, the district court noted that the $300,000 amount, which included front pay in light of this Court's decision in Hudson, "is, in fact, insufficient to compensate [Pollard] for the psychological damage, pain, and humiliation she has suffered, in addition to the loss of a lucrative career and secure retirement." Pollard, 16 F. Supp.2d at 924 n.19 (citing Hudson, 130 F.3d at 1204). The court concluded, however, that it was bound by the statutory caps on damages set forth in 42 U.S.C. § 1981a, and by this Court's decision in Hudson, 130 F.3d at 1204, on the issue of front pay, and accordingly included front pay in its calculation of compensatory damages. See Pollard, 16 F. Supp.2d at 924 n.19 (discussing Hudson and the statutory caps on damages). E.I. DuPont appealed the district court's decision. Pollard filed a cross-appeal challenging the district court's ruling on the issue of front pay, arguing that, contrary to this Court's decision in Hudson, front pay is a form of equitable relief that should not be subject to the limitations on compensatory damages stated in 42 U.S.C. § 1981a. The Commission filed a brief as amicus curiae, agreeing with Pollard that front pay is a form of equitable relief and thus is excluded from compensatory damages. On May 26, 2000, a panel of this Court affirmed the district court's decision on the issue of front pay. See Pollard, 2000 WL 680220 at *10. The panel stated that it agreed with Pollard and the Commission that the weight of authority (including the express language of 42 U.S.C. § 1981a, the legislative history of the statutory cap provision, pre-Hudson Sixth Circuit case law examining the nature of front pay as a remedy, the case law of other courts of appeals, and public policy concerns) indicates that Hudson was wrongly decided and that front pay should not be subject to the statutory limitations on compensatory damages, but held that it lacked the authority to overturn the decision of another panel of the Court. Pollard, 2000 WL 680220 at *10. The panel noted, however, that this Court sitting en banc could overturn the decision in Hudson. Pollard, 2000 WL 680220 at *10. Pollard and the Commission now urge this Court to rehear this case en banc to address the issue of front pay and the decision in Hudson. ARGUMENT THIS COURT SHOULD GRANT POLLARD'S PETITION FOR REHEARING EN BANC TO REVISIT, AND OVERRULE, ITS PRECEDENT HOLDING THAT FRONT PAY IS A FORM OF COMPENSATORY DAMAGES LIMITED BY THE STATUTORY CAPS ESTABLISHED IN THE CIVIL RIGHTS ACT OF 1991 In this case, a panel of this Court affirmed the district court's ruling that, based on this Court's decision in Hudson, its ability to award front pay is limited by the statutory caps for compensatory damages. As the panel recognized, however, there are several compelling reasons why this Court should revisit, and overrule, its decision in Hudson. Indeed, this Court should grant Pollard's petition for rehearing en banc and overrule its decision in Hudson because the decision cannot be reconciled with the great weight of authority demonstrating that front pay is a form of equitable relief that is not subject to the statutory caps on compensatory damages. Under the Civil Rights Act of 1991, the total amount of compensatory and punitive damages that may be recovered by an individual is limited by the statutory cap provisions set forth in 42 U.S.C. § 1981a(b)(3). The Act specifies that compensatory damages may be awarded for the individual's "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and expressly states that compensatory damages "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. § 1981a(b)(2)-(3). See also 42 U.S.C. § 2000e-5(g) (section 706(g) of the Civil Rights Act of 1964, explaining that, as a remedy for an unlawful employment discrimination, a court may award injunctive relief, reinstatement, back pay, or "any other equitable relief that the court deems appropriate"). In Hudson, 130 F.3d at 1203, a panel of this Court confronted the question of "whether 'front pay' is compensatory damages for future pecuniary losses," and therefore subject to the statutory cap on such damages, or a "'type of relief authorized under section 706(g),'" and therefore not subject to the statutory cap. To resolve this question, the panel in Hudson sought to define "future pecuniary losses," looking to the dictionary for guidance because the Civil Rights Act of 1991 does not provide a definition. Id. Based on its review, the Hudson panel determined that the plain meaning of the term "future pecuniary losses" is "an amount of money which will be lost at a later time." Id. (quoting Webster's Ninth New Dictionary, at 500, 806, 700 (1988)). Armed with this interpretation, the Hudson panel examined "the legal definition and purpose of 'front pay' to determine if it fits within the meaning of 'future pecuniary losses.'" Id. Since front pay "is widely defined as the salary that an employee would have received had he or she not been subjected to unlawful discrimination of his employer, subject to the employee's mitigating his or her damages," front pay "is a monetary award for the salary that the employee would have received but for the discrimination." Id. (citing Shore v. Federal Express Corp., 42 F.3d 373, 377-78 (6th Cir. 1994)). The Hudson panel noted that courts, including this Court, routinely have awarded front pay as an alternative to reinstatement under section 706(g), but held that notwithstanding that history, front pay is not authorized by that section and in fact is a legal remedy because the jury determines the appropriate amount after the district court decides reinstatement is not feasible. See Hudson, 130 F.3d at 1203-04 (citing Roush v. KFC Nat'l Management Co., 10 F.3d 392, 398-400 (6th Cir. 1993) and Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1234 (6th Cir. 1996)). The Hudson panel added that the term "future pecuniary losses" would be rendered meaningless if it were construed as not including front pay. See Hudson, 130 F.3d at 1204. In the panel's view, "if the term does not refer to front pay, it is hard to see what it would refer to, as front pay has always been the heart of 'future pecuniary losses' in discrimination suits." Id. at 1204.<1> This Court should grant Pollard's petition for rehearing en banc and overrule the decision in Hudson because it conflicts with the great weight of authority establishing that front pay is an equitable remedy that is not subject to the statutory caps on compensatory damages. Indeed, this Court cannot allow the decision in Hudson to stand because the Hudson panel's ruling on front pay conflicts with the plain language of the statute, Congress' intent, the precedent of several other courts of appeals, and the public policy goals underlying the remedies provisions of the anti-discrimination statutes. First, the plain language of the Civil Rights Act of 1991 establishes that front pay should be excluded from the limitations on compensatory damages stated in the Act. The statute states that compensatory damages do not include "relief authorized under section 706(g) [codified at 42 U.S.C. § 2000e-5(g)] of the Civil Rights Act of 1964." 42 U.S.C. 1981a(b)(2). Reinstatement is a type of such relief. See 42 U.S.C. § 2000e-5(g). Because the courts, including this Court, use front pay in place of reinstatement when reinstatement is not possible, it is clear that front pay also is relief authorized under section 706(g) that is to be excluded from the statutory caps on compensatory damages.<2> See Suggs, 72 F.3d at 1234. See also Hudson, 130 F.3d at 1203 (recognizing that "many courts, including the Sixth Circuit, routinely awarded 'front pay' as an alternative to reinstatement in Title VII actions, under the powers and remedies provision of Section 706(g) of the Civil Rights Act of 1964."); Lex Larson, Employment Discrimination § 93.03, 93-10 (2d ed. 1998) ("the sweeping exemption for 'any other type of relief authorized under section 706(g)' of Title VII, will likely compel the courts to exclude traditional front pay" from the compensatory damage caps). Second, Congress clearly intended to exclude front pay from the calculation of compensatory damages. Under the ordinary canons of statutory construction, courts must presume that Congress legislated with an awareness of the interpretation courts have given to the statutory terms it has employed. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) ("Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.") (citation omitted); United States v. Powers, 194 F.3d 700, 706 (6th Cir. 1999) ("'[I]t is a well settled canon of statutory construction that courts will presume that Congress knew of the prevailing law when it enacted the statute.'") (quoting United States v. Kassouf, 144 F.3d 952, 957 (6th Cir.1998)). Before the Civil Rights Act of 1991 was enacted, courts, including this one, routinely treated front pay as an equitable remedy. See, e.g., Erebia, 891 F.2d at 1214; Powers v. Grinnell Corp., 915 F.2d 34, 42 (1st Cir. 1990); Bruno v. W.B. Saunders Co., 882 F.2d 760, 772 (3d Cir. 1989); Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir. 1989); Morgan v. Arkansas Gazette, 897 F.2d 945, 954 (8th Cir. 1990); Cassino v. Reichhold Chem., Inc., 817 F.2d 1338, 1347 (9th Cir. 1987); Wulf v. City of Wichita, 883 F.2d 842, 873 (10th Cir. 1989); Wilson v. S & L Acquisition Co., 940 F.2d 1429, 1438 (11th Cir. 1991). Based on this case law, this Court must presume that Congress was aware when it enacted the Civil Rights Act of 1991 that courts construe front pay as equitable relief. There is simply no basis to believe, as the Hudson panel did, that Congress intended to reject this well established line of cases when it stated in the Act that relief authorized under § 706(g) should be excluded from compensatory damages. In fact, the legislative history of the Civil Rights Act of 1991 resolves any possible doubt as to how Congress wished courts to treat front pay, as the relevant legislative history strongly supports the proposition that front pay is exempt from the damage limitations on compensatory damages. The Senate legislative history states that "[c]ompensatory 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 [42 U.S.C. § 2000e-5(g)], including front pay." 137 Cong. Rec. 28,637 (1991) (statement of Sen. Kennedy) (emphasis added). The Senate's Interpretative Memorandum reiterates that proposition, explaining that "damages cannot include backpay, the interest thereon, front pay, or any other relief authorized under Title VII." 137 Cong. Rec. 29,046 (1991) (statement of Sen. Danforth) (emphasis added). The views expressed in the relevant legislative history from the House of Representatives are consistent with those from the Senate. See 137 Cong. Rec. 30,661 (1991) (statement of Rep. Edwards) (stating that the "[d]amages available under section [1981a] cannot include backpay, the interest thereon, front pay, or any other relief authorized under Title VII") (emphasis added).<3> Based on this history, it is clear that the decision in Hudson conflicts directly with Congress' intent to exclude front pay from compensatory damages under the Civil Rights Act of 1991. See McCue v. Kansas Dep't of Human Resources, 165 F.3d 784, 792 (10th Cir. 1999) (holding that Congress intended to exclude front pay from the § 1981a(b)(3) caps); Rivera v. Baccarat, Inc., 34 F. Supp.2d 870, 878 (S.D.N.Y. 1999) (holding that "[b]ecause the language creating the statutory cap must be read together with the definition of compensatory damages in section 1981a(b)(2), the term 'future pecuniary losses' is open to interpretation, and the legislative history provides convincing evidence that it does not include front pay").<4> Third, the decision in Hudson conflicts with the decisions of several other courts of appeals indicating that front pay is equitable relief that must be excluded from compensatory damages. To date, at least eight other courts of appeals have held that front pay retained its status as equitable relief after the passage of the Civil Rights Act of 1991. See, e.g., EEOC v. W & O, Inc., Nos. 98-5515 & 98-5646, ___ F.3d ___, 2000 WL 689712 at *13 (11th Cir. May 30, 2000) (reaching this conclusion); Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1154 (9th Cir. 1999) (same); Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1348-49 (D.C. Cir. 1999) (same), cert. dismissed, 120 S. Ct. 1155 (2000); McCue, 165 F.3d at 791-92 (same); Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620, 626 (8th Cir. 1998) (same); Allison v. CITGO Petroleum Corp., 151 F.3d 402, 423 n.19 (5th Cir. 1998) (same); Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998) (same); Lussier v. Runyon, 50 F.3d 1103, 1107 (1st Cir. 1995). See also supra at p. 7 n.2 (collecting cases from this Court reaching the same conclusion). At least four other courts of appeals have expressly rejected the rationale of the decision in Hudson, instead concluding that the statutory caps on compensatory damages do not apply to front pay because it is an equitable remedy. See, e.g., Gotthardt, 191 F.3d at 1154-55 (statutory caps on compensatory damages do not apply to front pay awards); Martini, 178 F.3d at 1348-49 (same); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir.) (same), cert. denied, 120 S. Ct. 48 (1999); Kramer, 157 F.3d at 626 (same). In the face of this overwhelming authority, the decision in Hudson stands alone and now should be corrected so that victims of discrimination asserting claims under federal law in the Sixth Circuit will have the same remedies that are available to plaintiffs in the rest of the country. Finally, the decision in Hudson undermines the public policy goals of the remedies provisions of the anti-discrimination statutes. It is axiomatic that the purpose of front pay and the other remedies available under the anti-discrimination statutes is to make whole the victim of discrimination. See Landgraf, 511 U.S. at 254 (citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). See also Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, § 2, reprinted in 42 U.S.C. § 1981, Historical and Statutory Notes (Congressional findings indicating that the compensatory and punitive damages provisions were enacted because "additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace"). Front pay serves a unique and important purpose within this remedies framework, as it is an equitable remedy that is awarded to individuals, in cases where reinstatement is not possible, to give them "the earnings [they] would have received had [they] been reinstated to [their] old job." Williams, 137 F.3d at 953-54. See also id. at 953 (explaining that front pay and future pecuniary losses "compensate the plaintiff for different injuries"). Contrary to the Hudson panel's conclusion, front pay is distinct from "future pecuniary losses" included in compensatory damages because "[f]uture pecuniary losses are out-of-pocket expenses that are likely to occur after conciliation, settlement, or the conclusion of litigation" and include, but are not limited to, "moving expenses, job search expenses, medical expenses, psychiatric expenses, [and] physical therapy expenses." EEOC Compliance Manual § 603, ¶ 2062, at 2070. See also Williams, 137 F.3d at 953 (explaining that future pecuniary losses may compensate the victim for the "reputational harms she suffered as a result of [the] discrimination"); Rivera, 34 F. Supp. 2d at 878 (future pecuniary losses are such costs as payment of future psychological counseling). The Hudson panel's erroneous ruling that front pay is merely a type of future pecuniary loss must be corrected because it undermines the distinct purposes each remedy is intended to serve, and thus (as the district court noted in this case) prevents individuals from receiving relief that properly will compensate them for their injuries.<5> CONCLUSION For the foregoing reasons, we urge this Court to grant Pollard's petition for rehearing en banc, so that it may overrule the erroneous decision in Hudson and remand the question of front pay to the district court. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, DC 20507 June 8, 2000 (202) 663-4728 CERTIFICATE OF SERVICE I, Geoffrey L. Carter, hereby certify that on this 8th day of June, 2000, two copies of the attached brief were sent by first class mail, postage prepaid, to each of the following counsel of record: Kathleen Caldwell, Esq. Taylor, Halliburton, Ledbetter & Caldwell 44 North Second St., Suite 200 Memphis, TN 38103-2213 Alayne B. Adams, Esq. 100 North Main, Suite 2900 Memphis, TN 38103 N. Victoria Holladay, Esq. John S. Wilson, III, Esq. Wyatt, Tarrant & Combs Crescent Center 6075 Poplar Ave., Suite 650 Memphis, TN 38119-4721 J. Michael Brown, Esq. Wyatt, Tarrant & Combs Citizen Plaza 500 West Jefferson St. Louisville, KY 40202 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, D.C. 20507 June 8, 2000 (202) 663-4728 ADDENDUM 1 The Commission is aware of only one other decision that has applied the analysis and reasoning set out in Hudson. See Hamlin v. Charter Township of Flint, 965 F. Supp. 984, 986-87 (E.D. Mich. 1997). District Court Judge Rosen, who authored Hudson, decided Hamlin approximately three months before the oral argument in Hudson. 2 The Hudson panel's assertion that front pay is legal relief (see 130 F.3d at 1203-04) is inconsistent with this Court's prior decisions stating that front pay is in fact equitable relief. See, e.g., Thurman v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir. 1996) ("award of front pay is an equitable remedy"); Shore, 42 F.3d at 378 (indicating that front pay is an equitable remedy); Roush, 10 F.3d at 398 ("front pay [is] an available form of equitable relief in ADEA actions"); Erebia v. Chrysler Plastic Prods. Corp., 891 F.2d 1212, 1214 (6th Cir. 1989) (stating that "front pay is an equitable remedy in lieu of reinstatement"); Gutzwiller v. Fenik, 860 F.2d 1317, 1324 (6th Cir. 1988) (characterizing front pay as equitable relief). See also Landgraf v. USI Film Prods., 511 U.S. 244, 252 (1994) ("[b]efore the enactment of the 1991 Act, Title VII afforded only 'equitable' remedies") (emphasis added). 3 Although Judge Rosen was aware of this legislative history when he wrote Hudson, see Hamlin, 965 F. Supp. at 987-88 n.1, the decision in Hudson does not address it. 4 The Commission's policy guidance on the issue of front pay is consistent with Congress' intent to exclude such damages from the definition of compensatory damages. See Compensatory and Punitive Damages Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), reprinted in EEOC Compliance Manual (CCH) § 603, ¶ 2062, at 2069 & n.9 ("EEOC Compliance Manual") (explaining that "[f]ront pay 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"). 5 The Hudson panel's ruling on front pay also may provide employers with a perverse incentive to engage in conduct that will make reinstatement impossible. Under the decision in Hudson, if an employer (like E.I. DuPont in this case) knows that it faces a high award of compensatory and/or punitive damages, it can rid itself of the employee by making reinstatement impossible, and, in the Sixth Circuit, avoid the statutorily prescribed penalty for doing so because of the unavailability of front pay as a separate, equitable remedy.