The addition of punitive and compensatory damages to Title VII “altered the landscape” of civil rights law; it was believed that this relief would “deter discrimination” and provide “greater protection to victims of intentional discrimination.” Subsequent Supreme Court case law interpreting the statute, however, combined with an unreceptive welcome of punitive damage awards in the lower courts, has called into question the effectiveness of this form of relief with regard to the broader goal of eliminating discrimination. An analysis of all available district court cases during the calendar years of 2004 and 2005 demonstrates just how infrequently punitive damages find their way into published opinions as a remedy for discrimination. Though the perception in our society is often that “punitive damages are out of control,” resulting in a “crisis” of the judicial system, the reality is far different, at least as these damages relate to cases of employment discrimination.

Reasons for selecting the years 2004 and 2005:

I selected the years 2004 and 2005 for this study as a result of several different factors. First, these years are far enough removed from the Supreme Court’s decision in Kolstad to allow the appellate courts and district courts to have digested and interpreted the decision’s meaning. Second, as over two years have passed since December 31, 2005 (the end date for cases analyzed as part of this study), a sufficient amount of time has passed to determine (for the most part) how the appellate courts have treated any district court punitive damage award that might have been challenged on appeal. Finally, the years analyzed are recent enough to capture any current trends in punitive relief in the courts.

The results:

Over the period of 2004-2005, approximately 36,676 employment law cases were filed in all of the federal district courts in the United States. A search in the Westlaw database for the calendar years of 2004 and 2005 revealed 676 federal district court opinions-both published and unpublished-that referenced both Title VII and punitive damages. After analyzing each of these cases, I concluded that twenty-four decisions included opinions where a district court either awarded punitive damages under Title VII or upheld a jury’s award. The breakdown per year is illustrated in Table A below: I found nine cases awarding punitive damages issued in 2004 and fifteen cases in 2005. The case names, citations, and punitive damage award amounts are on file with the author. Of the twenty-four total cases awarding exemplary relief, the mean award was $212,471.67 and the median award was $62,500.00. That only twenty-four available employment discrimination cases over a two-year-period awarded punitive damages seems somewhat low in light of Congress’s intent to provide a more effective deterrent by making the remedy available.

If a reasonable person were to make an educated guess, do you think the number of cases that are awarded punitive damages has increased or decreased over the last 8 to 9 years?

Source: Joseph A. Seiner. The Failure of Punitive Damages in Employment Discrimination Cases: A Call For Change. 50 Wm. & Mary L. Rev. 735, 756-760. 2008.