An example of Justice Thomas' Writing

In POLLARD V. E. I. DU PONT DE NEMOURS & CO.Justice Thomas delivered the opinion of the court, holding that
front pay" , i. e. payments made in lieu of reinstating a victim of discrimination, is not subject to the $300,000.00 cap on damages awards in discrimination cases. Here he explains why he, and the court, reached that conclusion. This decision is a victory for plaintiffs in discrimination cases and should be applauded by liberals. It is also representative of Thomas' careful attempt to understand and carry out congressional intent when writing decisions. It is conservative only in the sense that Thomas, by basing his decision on careful textual analysis and congressional intent, is taking a conservative approach to making decisions.

POLLARD V. E. I. DU PONT DE NEMOURS & CO.: "  In the abstract, front pay could be considered compensation for “future pecuniary losses,” in which case it would be subject to the statutory cap. §1981a(b)(3). The term “compensatory damages … for future pecuniary losses” is not defined in the statute, and, out of context, its ordinary meaning could include all payments for monetary losses after the date of judgment. However, we must not analyze one term of §1981a in isolation. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 99 (1992) (“ ‘[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law’ ”). When §1981a is read as a whole, the better interpretation is that front pay is not within the meaning of compensatory damages in §1981a(b)(3), and thus front pay is excluded from the statutory cap.


    In the Civil Rights Act of 1991, Congress determined that victims of employment discrimination were entitled to additional remedies. Congress expressly found that “additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace,” without giving any indication that it wished to curtail previously available remedies. See Civil Rights Act of 1991, 105 Stat. 1071, §2. Congress therefore made clear through the plain language of the statute that the remedies newly authorized under §1981a were in addition to the relief authorized by §706(g). Section 1981a(a)(1) provides that, in intentional discrimination cases brought under Title VII, “the complaining party may recover compensatory and punitive damages as allowed in subjection (b) of [§1981a], in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.” (Emphasis added.) And §1981a(b)(2) states that “[c]ompensatory damages awarded under [§1981a] 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.” (Emphasis added.) According to these statutory provisions, if front pay was a type of relief authorized under §706(g), it is excluded from the meaning of compensatory damages under §1981a.


    As discussed above, the original language of §706(g) authorizing backpay awards was modeled after the same language in the NLRA. This provision in the NLRA had been construed to allow awards of backpay up to the date of reinstatement, even if reinstatement occurred after judgment. Accordingly, backpay awards made for the period between the date of judgment and the date of reinstatement, which today are called front pay awards under Title VII, were authorized under §706(g).


    As to front pay awards that are made in lieu of reinstatement, we construe §706(g) as authorizing these awards as well. We see no logical difference between front pay awards made when there eventually is reinstatement and those made when there is not.3 Moreover, to distinguish between the two cases would lead to the strange result that employees could receive front pay when reinstatement eventually is available but not when reinstatement is not an option–whether because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries that the discrimination has caused the plaintiff. Thus, the most egregious offenders could be subject to the least sanctions. Had Congress drawn such a line in the statute and foreclosed front pay awards in lieu of reinstatement, we certainly would honor that line. But, as written, the text of the statute does not lend itself to such a distinction, and we will not create one. The statute authorizes courts to “order such affirmative action as may be appropriate.” 42 U.S.C. § 2000e—5(g)(1). We conclude that front pay awards in lieu of reinstatement fit within this statutory term.


    Because front pay is a remedy authorized under §706(g), Congress did not limit the availability of such awards in §1981a. Instead, Congress sought to expand the available remedies by permitting the recovery of compensatory and punitive damages in addition to previously available remedies, such as front pay."