Front pay is awarded to compensate for future income lost due to an unlawful termination of employment. Its amount should be equal to the difference between what the employee would have earned from his or her former employer and the amount, if any, he or she could expect to earn from her new employer. The how much question regarding front pay is easy. More difficult is the how long question. Recently, a federal district court in Alabama examined the how long question in Warren v County Commission of Lawrence County, Alabama and found that front pay covering 32 years should be awarded.
Bonnie Warren was a payroll clerk for the County. For particulars that the opinion does not discuss she was discharged from employment and filed suit for overtime compensation under the Fair Labor Standards Act and for retaliation under Title VII. A jury found for her on both claims and awarded damages of $400,600. Following trial she filed a motion for equitable relief seeking front pay covering 32 years, all the way to retirement age 65.
The court awarded Warren front pay covering 32 years and totaling $650,886.40, explaining as follows along the way:
- prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay
- where reinstatement is not a realistic option, an award of front pay is a necessary part of the "make whole" relief mandated by Congress. Pollard v. E.I. du Pont de Nemours & Co., 532 US 843 (2001); Shore v. Federal Express, 777 F2d 1155, 1158-59 (6th Cir. 1985)
- Expert economic testimony was not necessary to support warrants calculations of either lost wages or benefits
- County employees had long stable work histories and it was not unusual for county employees to work for the county for several decades before reaching retirement age
- Numerous courts have awarded front pay covering long periods of time where the opportunities for a plaintiff to find an equivalent job were limited. Tyler v. Bethlehem Steel, 958 F2d 1176 (2d Cir. 1992)(upholding award of 17 years of front pay in age discrimination case until employee reached retirement age); Passantino v. Johnson & Johnson, 212 F3d 493 (9th Cir 2000)(upholding award of 22 years of front pay in retaliation case until employee reached age 65); Gotthardt v. National R.R. Passenger Corp., 191 F3d 1148 (9th Cir. 1999) (upholding front pay award of $603,928.37 for employee until mandatory retirement age of 70); Padilla v. Metro-North Commuter R.R., 92 F3d 117 (2d Cir. 1996)( upholding front pay award of over 20 years until retirement age of 67)
- A discounting to present value was not necessary where the front pay calculation does not factor in any future increases in pay or cost-of-living increases. This method of calculating front pay is known as the "total offset method" or the "Alaska Rule."
