The Ninth Circuit joins the Seventh Circuit in holding that the ADA anti-retaliation section, 42 U.S.C. § 12203, provides only for equitable remedies and hence no jury trial.Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009): Alvarado filed a retaliation claim under the Americans with Disabilities Act (ADA) alleging that the company fired him for complaining to his manager about disability discrimination. The district court held, granting a motion in limine prior to trial, that the remedy section governing ADA discrimination claims, 42 U.S.C. § 1981a(a)(2), did not encompass retaliation claims, and thus the employee could only seek equitable, make-whole relief (including back and front pay, but not compensatory or punitive damages).On an interlocutory appeal, the Ninth Circuit affirms the grant of the motion in limine.

In Hernandez-Miranda v. Empresas Diaz Masso, Inc., No. 10-1639, 2011 U.S. App. LEXIS 13259 (1st Cir. June 29, 2011), the First Circuit held that, for the purposes of counting the employer’s number of employees to establish the damages bracket under Title VII, 42 U.S.C. § 1981a(b)(3), Congress intended the relevant time period to be the time during which the alleged discrimination occurred. The Fourth, Fifth, and Seventh Circuits concur.

The panel divides, though, on the question of the appropriate back pay remedy. It also divides on the question of how to apply the compensatory and punitive damage caps in a mulitclaim case under 42 U.S.C. § 1981a(b)Black v. Pan American Laboratories, No. 09-51092 (5th Cir. July 11, 2011): The employee raised claims of being subjected to a discriminatory sales quota, and of retaliatory/discriminatory termination. Despite being promised that she would be spared a quota when hired in 2003, within a few months time she was put on a sales quota that was higher than the one set for a comparable male representative named Livingston.

Therefore, to make Nassar whole, the back pay ought to be measured against what Nassar would have made at [the second hospital]." The court also holds that lost honoraria income is not recoverable as back pay, because it was not (strictly speaking) income, but it could be recovered under 42 U.S.C.§1981a(b)(2), as "future pecuniary losses." 2. Harassment that merely constituted "hostile work environment" without aggravated circumstances does not support verdict for constructive discharge.Hernandez v. Yellow Transportation, Inc., 641 F.3d 118, 112 FEP 417 (5th Cir. 2011).

Two plaintiffs win at trial and, on appeal, achieve differing results. In the First Circuit, a Title VII plaintiff improves on her win by persuading the court (with an assist from the EEOC as amicus) that the number of employees in the "current or preceding calendar year" - for purposes of setting the damage cap under 42 U.S.C. § 1981a(b)(3) - is based on the number of employees at the time of the act of discrimination, rather than at the time of trial. In the Fifth Circuit, the employee keeps her Equal Pay Act award, but loses a state statutory wage claim.Hernández-Miranda v. Empresas Díaz Massó, Inc., No. 10-1639 (1st Cir. June 29, 2011): In this Title VII case, the jury awarded plaintiff $300,000 in compensatory damages for sex harassment.

Title VII allows both compensatory and punitive damages and there is a statutory cap that applies, depending upon the size of the employer ($300,000 in the case of employers with more than 500 employees). 42 U.S.C. § 1981a. In a sexual harassment case before the Ninth Circuit, the question was whether punitive damages are available in a case where a jury has awarded only nominal damages in the amount of $1.00 and not compensatory damages.

Title VII allows both compensatory and punitive damages and there is a statutory cap that applies, depending upon the size of the employer ($300,000 in the case of employers with more than 500 employees). 42 U.S.C. § 1981a. In a sexual harassment case before the Ninth Circuit, the question was whether punitive damages are available in a case where a jury has awarded only nominal damages in the amount of $1.00 and not compensatory damages.

The Ninth Circuit, ruling en banc, overrules a prior panel decision and holds that the BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), ratio test for excessiveness of punitive damages is essentially unnecessary for evaluating a capped award under Title VII governed by 42 U.S.C. § 1981a(b)(3)(D).State of Arizona v. ASARCO LLC, No 11-17484 (9th Cir. Dec. 10, 2014) (en banc): Angela Aguilar and the State of Arizona (which filed the original action to enforce the employee's civil rights in state court, then removed to federal district court) won a sexual harassment trial against a mining company. "The jury awarded no compensatory damages, but awarded $1 in nominal and $868,750 in punitive damages."

This decision provides an interesting roadmap for employers seeking to challenge a plaintiff’s standing under Title VII.Key Facts In The CaseIn Singleton, the named plaintiff Debbie Singleton brought suit on behalf of herself and a purported group of similarly situated women, alleging gender discrimination in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981a. Singleton had previously worked for BP from 2000 through 2009, and returned to BP as a contract employee in September 2010.

She sued for both the harassment and wrongful terminationAt trial, the judge reserved all issues of back- and front-pay for himself, and the jury heard no evidence on the issue of lost wages. The jury found for Bergerson and awarded her $580,000 in compensatory damages, for harm to reputation, pain and suffering, and emotional distress, which the judge reduced post-trial to the $300,000 federal statutory cap applicable to an employer of this size (500 or more employees) under 42 U.S.C. §1981a(b)(3). The judge then refused to award any lost back- or front-pay (for the plaintiff's termination) on the ground that the jury's "substantial damages award satisfie[d]" Title VII's make-whole policy.