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The remedies available to employees in employment discrimination cases depend in large part on the facts presented and the statutes allegedly violated. Employees generally have multiple forms of relief at their disposal, including back pay and lost wages; reinstatement; front pay; emotional distress damages; punitive damages; injunctive relief; and attorneys’ fees and costs. This article focuses on two in particular:  reinstatement and front pay.

Reinstatement is the preferred equitable remedy for unlawful employment discrimination. In determining whether to award reinstatement, the Eighth Circuit considers the following factors: (1) whether the employer is still in business, (2) whether there is a comparable position available for the employee to assume, (3) whether an innocent employee would be displaced by reinstatement, (4) whether the parties agree that reinstatement is a viable remedy, (5) whether the degree of hostility or animosity between the parties — caused not only by the underlying offense but also by the litigation process — would undermine reinstatement, (6) whether reinstatement would arouse hostility in the workplace, (7) whether the employee has since acquired similar work, (8) whether the employee’s career goals have changed since the unlawful termination and (9) whether the employee has the ability to return to work for the defendant employer — including consideration of the effect of the adverse employment action on the employee’s self-worth.

While reinstatement is often characterized as the “preferred” remedy in unlawful termination cases, the wisdom of this judicially created preference for reinstatement over front pay has been challenged. Some argue that reinstatement, while a powerful remedial tool, does not always serve the interest of the victims of discrimination, the employers or society. These observers contend that front pay can serve the same remedial functions and may better serve to make a plaintiff whole in a given case. Accordingly, courts should abandon the reinstatement preference and determine the appropriate prospective remedy on a case-by-case basis, giving greater attention to the hostility exhibited by one or both parties.

When a court determines that reinstatement is inappropriate, it generally turns to front pay as the alternative remedy. An award of front pay is proper when reinstatement is not feasible, is impossible or is otherwise impracticable. Front pay is very similar to back pay except that it is awarded in instances where reinstatement is not possible. Specifically, front pay is a lump sum representing the difference between the earnings an employee would have received in his or her old employment and the earnings the employee can be expected to receive in his or her current and future employment. The Eighth Circuit has recognized that front pay is not so much a monetary award for the salary the employee would have received absent the discrimination, but rather the monetary equivalent of reinstatement.

The calculation of front pay is a matter of equitable relief within the court’s discretion. An award of front pay is inherently speculative in length of time and when considering possible mitigation by reason of other employment. It is based on probabilities rather than actualities. In determining the proper amount of front pay, courts are mindful that front pay should not result in a windfall to plaintiff. Factors to be considered in making an award of front pay include: (1) the plaintiff’s age, (2) the length of time plaintiff was employed by the defendant employer, (3) the likelihood the employment would have continued absent the discrimination, (4) the length of time it will take plaintiff, using reasonable effort, to secure comparable employment, (5) the plaintiff’s work and life expectancy, (6) the plaintiff’s status as an at-will employee, (7) the length of time other employees typically held the position lost, (8) the plaintiff’s ability to work, (9) the plaintiff’s ability to work for the defendant-employer, (10) the employee’s efforts to mitigate damages and (11) the amount of any liquidated or punitive damage award made to the plaintiff.

The plaintiff initially bears the burden of establishing the propriety of a front-pay award. The burden then shifts to the defendant to prove it is inappropriate. There is a presumption that the plaintiff would have worked for the defendant until reaching normal retirement age. The defendant bears the burden of proffering evidence to the contrary.