Caps and Damages

Caps and Damages


Today's case is not about the facts, which are brutal, but rather on an issue of statutory interpretation.  In Hernandez-Miranda v. Empresas Diaz Masso, Inc., 2011 WL 2557012 (1st Cir. June 29, 2011), a woman sued for gender discrimination related to sexual abuse.  According to Plaintiff, she was required to perform oral sex on her supervisor on multiple occasions and was subjected to unspecified sexual abuse from other co-workers as well (Hard to believe this crap still goes on in the U.S. in this day and age, or in this case, a U.S. "territory"). 

At trial, Defendant was found liable for "intentional discrimination," which under the 1991 amendments to Title VII permitted Plaintiff to seek punitive damages and damages for emotional pain and suffering and front pay.  However, depending on the size of the employer, the statute caps these additional categories of damages.  The size of the employer is determined by the amount of "current" employees.  The issue before the Court was whether "current" meant at the time of the discrimination or at the time of the judgment.  At trial, the District Court held that "current" meant at the time of the judgment, capping Plaintiff's recovery for punitive and emotional damages at $50,000 (in addition to her backpay award). 

On appeal, the First Circuit, on an issue of first impression, reversed and held that "current" applied to the time of the discrimination, increasing the punitive/emotional damage award to $200,000 (the jury had awarded $300,000 but is not informed about caps prior to issuing a verdict).   The First Circuit followed previous opinions of the 4th, 5th and 7th Circuits on  this issue. 

As for its reasoning, the Court relied on another area of Title VII which applies the statute only to employers who "currently" have 15 or more employees, a term which has been routinely interpreted to mean as of the date of the discrimination.

This is a "feel good" decision as you want to see an employer get pummeled for such behavior.  Of course, you never know how much motivation that put into the Court's head to find a reason to increase the damage award. 


Attorney Craig Salner is a partner with the Miami, Florida, litigation law firm of Clarke Silverglate, P.A. He has been with the firm since graduating from Vanderbilt University Law School in 2003.  He specializes in employment litigation, commercial litigation, product liability and insurance defense.  Mr. Salner produces a daily blog on legal issues and beyond which can be found at