Kwoun v. Southeast Missouri Professional Standards Review Organization Brief for the Federal Respondents in Opposition

    n o , n-103

In The

upreme Court of tfje ®ntteb l§>tat££
October Term, 1997

American Dental Association,
Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

J o se p h  A. Y a b l o n sk i 
Counsel o f Record 

Y a b l o n s k i, B o t h  &  E d e l m a n  
1140 Connecticut Avenue, N.W. 
Suite 800
Washington, D.C. 20036 
(202) 833-9060

E r ic  Sc h n a p p e r  
U n iv e r s it y  o f  W a sh in g t o n  
Sc h o o l  o f  L a w  
1100 N.E. Campus Parkway 
Seattle, WA 98105 
(206) 616-3167

Carole Kolstad,
Petitioner.

v.

July 31, 1998 Counsel fo r  Petitioner

PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



1

QUESTION PRESENTED

In what circumstances may punitive damages be awarded 
under Title VII of the 1964 Civil Rights Act, as amended, for 
unlawful intentional discrimination?*

* The parties to this action are set forth in the caption.



11

TABLE OF CONTENTS

QUESTION PRESENTED ......................................................i

TABLE OF A U TH O R ITIES................................    iv

OPINIONS BELOW .......................    1

JURISDICTION ..............................................................  2

STATUTE IN V O L V E D ........................ .. .................. . . .  2

STATEMENT OF THE CASE ................................   2

REASONS FOR GRANTING THE WRIT . . . . . . . . .  8

I. THE DECISION BELOW IS IN CONFLICT
WITH DECISIONS OF SEVEN OTHER 
CIRCUITS . . . . ..........       9

II. THE DECISION BELOW IS IN CONFLICT 
WITH THREE DECISIONS OF THIS COURT . 19

III. THIS CASE PRESENTS ISSUES OF
SUBSTANTIAL IMPORTANCE ........................24

CONCLUSION ........................................................................26

APPENDICES

APPENDIX A: En Banc Opinions of the District of
Columbia Circuit (May 8, 1998) . . . .  la

APPENDIX B: Panel Opinions of the District of
Columbia Circuit (March 21, 1997) . 42a

APPENDIX C: Memorandum and Order of the District 
Court for the District of Columbia 
(January 22, 1 9 9 6 ) .........................   69a

Page



Ill

APPENDIX D: 

APPENDIX E: 

APPENDIX F:

Page

Order of the District of Columbia 
Circuit Granting Rehearing En Banc 
(May 28, 1 9 9 7 ) ................................... 75a

Order of the District of Columbia 
Circuit Denying Rehearing 
(May 28, 1 9 9 7 ) ................................... 77a

42 U.S.C, § 1 9 8 1 a ........................ .. . 78a



IV

TABLE OF AUTHORITIES

Cases

Adakai v. Front Row Seat, Inc., 125 F.3d 861, 1997 WL 
603458 (10th Cir. Oct. 1, 1 9 9 7 ) ............. ..  11, 13

Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995), cert, 
granted in part, 116 S. Ct. 805, dismissed as moot,
116 S. Ct. 1037 (1996). ......................... 5, 9, 15, 19, 24

Beauford v. Sisters o f Mercy-Province o f Detroit, Inc.,
816 F.2d 1104 (6th Cir.), cert, denied, 484 U.S. 913 
(1 9 8 7 ) ........................ ..  16, 17

Criado v. IBM Corp., 1998 WL 282836 (1st Cir. June 5, 
1998)............. ..................................................  11, 16, 20

Delph v. Dr. Pepper Bottling Co. ofParagould, Inc., 130 
F.3d 349 (8th Cir. 1997) ..............................................  13

Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 
1998) . . . . . ........ .. ...............................  11, 16, 20, 24

Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 
1997 )............................................................ .. 16

H azen P aper Co. v. B ig g in s , 507 U .S . 604 
(1993) .................................................. 8, 19, 22, 23

Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 
1344 (7th Cir. 1995)  .......................................... ..  12

Hernandez-Tirado v. Artau, 874 F.2d 866 (1st Cir. 
1989) ........................... ....................... ..  18, 19

Jonasson v. Lutheran Child and Family Services, 115 
F.3d 436 (7th Cir. 1997)

Page( s)

12



V

Table of Authorities (continued)

Kim  v. Nash Finch Co., 123 F .3d 1046 (8th Cir. 
1997) . . . . . . . . . . . . . . . . . . .  10. 13, 14, 16, 20

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568 (8th Cir. 
1997) ................................................................ .. .............  13

Undale v. Tokheim Corp., 1998 WL 272763 (7th Cir. 
May 29, 1998) ........................................................  12, 13

Luciano  v. Olsten Corp., 110 F.3d 210 (2d Cir. 
1997) ........................................................... . 10, 16, 20

McKinnon v. Kwong Wah Restaurant, 83 F.3d 498 (1st 
Cir. 1996)..........   12, 16

Merriweather v. Family Dollar Stores o f Ind., Inc., 103 
F.3d 576 (7th Cir. 1 9 9 6 ) .............................  12, 14, 20

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968) ...........................................................................  . 25

Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299 (9th 
Cir. 1998)........................................................  12, 16, 20

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th 
Cir. 1996), cert, denied, 117 S. Ct. 767 (1997) . 14, 16

Resnick v. American Dental Ass'n, 90 F.R.D. 530 (N.D.
111. 1981) .......................................................................  4

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st Cir. 
1987 )........................ .. ...................... 16, 17, 18, 22, 26

Smith v. Wade, 461 U.S. 30 (1983) ........................  . passim

Trans World Airlines, Inc. v. Thurston, 469 U.S. I l l  
(1 9 8 5 ) .................................... ................. .. 19, 22

Page(s)



VI

Table of Authorities (continued)

Turic v. Holland Hospitality, Inc., 85 F.3d 1211 (6th Cir.

Page(s)

1996) ........................... .. ....................... ..........................  14

United States v, Balistrieri, 981 F.2d 916 (7th Cir. 1992), 
cert, denied, 510 U.S. 812 (1 9 9 3 ) ............. ...............  24

Statutes

28 U.S.C. § 1254 ...........................................................  2

42 U.S.C. § 1981 ................................... ..  passim

42 U.S.C. § 1981a................ .. passim

42 U.S.C. § 2000e Note, section 202(a)(l)-(2) . . . . . .  25

M iscellaneo us

Administrative Office of the United States Courts, Table 
C-2A: U.S. District Courts Civil Cases Commenced,
By Nature o f Suit, During 12 Month Periods Ended 
Mar. 31, 1994 through 1998 ...........................  24

EEOC, Title VII o f the Civil Rights Act o f 1964 Charges:
F Y 1991-FY1997 (compiled 4 /1 7 /9 8 )..................... .2 4



In The

upreme Court of tfje ®mtob tate£
October Term, 1997

Carole Kolstad,

v.
Petitioner,

American Dental Association,
Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Carole Kolstad respectfully prays that this 
Court grant a writ of certiorari to review the judgment and 
opinion of the United States Court of Appeals for the District 
of Columbia Circuit entered on May 8, 1998.

OPINIONS BELOW

The January 22, 1996 decision of the district court 
denying respondent’s motion to set aside the jury verdict, 
which is reported at 912 F. Supp. 13 (D.D.C. 1996), is set 
out at pp. 69a-74a of the Appendix. The original panel 
decision in the court of appeals, which is reported at 108 F .3d 
1431 (D.C. Cir. 1997), is set out at pp. 42a-68a of the 
Appendix. The orders of the court of appeals denying 
rehearing and granting rehearing en banc limited to the issue 
of punitive damages are set out at pp. 75a-77a of the 
Appendix. The en banc decision of the court of appeals,



2

which is reported at 139 F.3d 958 (D.C. Cir. 1998), is set out 
at pp. la-4 la  of the Appendix.

JURISDICTION

The en banc decision of the court of appeals was entered 
on May 8, 1998. The jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. § 1254.

STATUTE INVOLVED

The pertinent portions of 42 U.S.C. § 1981a are set out 
at p. 78a-80a of the Appendix.

STATEMENT OF THE CASE

Petitioner commenced this action in 1994 in the United 
States District Court for the District of Columbia, alleging 
that she had been denied a promotion because of her sex in 
violation of Title VII of the 1964 Civil Rights Act. The 
complaint sought back pay, injunctive relief and punitive 
damages.

The case was tried to a jury, which found that petitioner 
had indeed been the victim of intentional discrimination on the 
basis of sex. The district court denied respondent’s post-trial 
motion for judgment as a matter of law on the merits of 
petitioner’s discrimination claim. (App. 69a-74a). The court 
of appeals panel which first heard this case unanimously 
upheld the jury’s finding of intentional discrimination. (App. 
46a-49a). The court of appeals declined to grant rehearing en 
banc with regard to the liability determination, and that aspect 
of the case is no longer at issue.1 1

1 The panel decision overturned the district court’s decision denying 
injunctive relief and counsel fees, and remanded for further consideration 
of those issues.



3

The question which was addressed by the court of appeals 
en banc, and which is the subject of this petition, concerns 
petitioner’s claim for punitive damages. Title VII was 
amended in 1991 to authorize awards of punitive damages; the 
provision regarding those awards is codified in 42 U.S.C. § 
1981a. In support of her claim for punitive damages, 
petitioner offered at trial four types of evidence. First, 
petitioner demonstrated that the discrimination at issue was 
not the isolated spontaneous act of a lower level supervisor, 
but the result of a three month scheme involving respondent’s 
national Executive Director and other high-level executives. 
As part of that scheme, respondent’s officials (i) repeatedly 
met with the successful male candidate about the promotion, 
while refusing to meet with petitioner,2 (ii) accorded only the 
male candidate a formal interview by respondent’s Executive 
Director,3 and (iii) made a last minute change in the job 
description of the position at issue so that it would conform to

2 “Before ADA posted the opening, [the male candidate] Spangler 
frequently met with the incumbent (Jack O’Donnell), ADA did not post the 
position promptly after O’Donnell decided to retire, and a secretary 
familiar with the process testified that she thought Spangler was being 
groomed for the job. Leonard Wheat, head of ADA’s Washington office 
and the person most closely supervising the competing candidates, refused 
to meet with Kolstad to discuss O’Donnell’s position, despite frequently 
meeting with Spangler.” (App. 38a).

3 “Although Executive Director Dr. William Allen formally 
appointed O’Donnelfs successor, Allen—based in ADA’s Chicago 
headquarters—relied heavily upon Wheat’s recommendation of Spangler. 
Assigning all legislative work to Spangler, Wheat repeatedly refused 
Kolstad’s requests to work on legislative matters, despite their relevance 
to the regulatory issues when covered and her experience in the field. 
Formally interviewing Spangler but not Kolstad, Allen failed to review 
Kolstad’s numerous, detailed, positive performance evaluations.” (App. 
38a).



4

the male candidate’s background.4 Second, petitioner showed 
that the very discriminatory technique used against her had 
been the subject of an earlier class action lawsuit against 
respondent,5 and that respondent had agreed in 1984 to a 
consent decree which forbad promotion by pre-selection;6 the 
position at issue in this case was the second highest position 
in the ADA’s Washington office and the first executive-level 
job to be filled there following the expiration of that decree. 
(App. 43a). Third, petitioner proved that the explanation 
which respondent offered at trial for selecting the male 
candidate was entirely different from the explanation which it

4 "[A] few days before posting the job, [the ADA’s Executive 
Director] edited the description to fit [the male’s] qualifications. [The 
incumbent’s] position description originally stated that its ‘most important 
responsibility’ was to ‘[m]aintain liaison with federal agencies, bureaus 
and Administration,’ corresponding directly to Kolstad’s work at ADA. 
Tailoring the job description to [the male’s] specialty, [the selecting 
official] added.. .whole phrases from the position description questionnaire 
used to hire [the male].” (App. 38a-39a).

5 In Resnick v. American Dental Ass’n, 90 F.R.D. 530, 536-41 
(N.D. 111. 1981), the district court in Chicago, where the ADA maintains 
its headquarters, certified a nationwide class of women in a suit brought 
against the ADA under Title VII and the Equal Pay Act. (App. 39a). In 
Resnick, Plaintiffs had alleged that the ADA had engaged in the systemic 
denial of promotions to women to high-level “supervisory and management 
positions” which “perpetuates and exacerbates...policies and practices of 
discrimination.” 90 F.R.D. at 534 (internal quotation marks omitted).

6 “Kolstad proffered a 1984 consent decree [in Resnick, 
which]...showed that ADA had specific knowledge of the impropriety of 
preselection as well as of the connection between preselection and 
employment discrimination..., [t]he decree stated that ‘pre-selection of a 
favored candidate is contrary to ADA’s firm policy of giving full and fair 
consideration to each application,... [violations of [which]...will be cause 
for discipline.’” (App. 39a).



5

had given at the time of the selection,7 and offered evidence 
that respondent had altered documents to justify its selection 
of the male candidate.8 (App. 39a). Fourth, petitioner 
offered evidence that the director of respondent’s Washington 
office, whose recommendation of the male candidate was 
accepted by the national headquarters, had repeatedly told 
sexually offensive jokes at staff meetings and had referred to 
several prominent professional women in gender-specific 
derogatory terms.9 Despite this evidence, the district court 
refused to give the jury an instruction regarding punitive 
damages.10 A divided panel of the court of appeals held that 
the district court had erred in dismissing petitioner’s punitive 
damage claim; the panel majority and a dissenting judge

7 "After telling [Kolstad] that she was passed over because she lacked 
experience with health care reform and was too valuable in her position, 
ADA abandoned that justification at trial, instead attacking Kolstad’s 
general qualifications and writing ability.” (App. 39a).

8 "[T]he jury could have concluded that ADA attempted to cover up 
[the male’s] preselection” by “editfing]” the position description, by 
“[tailoring" it to fit the male’s “specialty” and that ADA had “altered 
documents to justify his promotion.” (App. 38a-39a). Based on the trial 
record, the jury could have found that “Kolstad was the more qualified of 
the two candidates,” that the less experienced “male candidate” 
“technically failed to meet the minimum posted requirements for the 
position.” (App. 37a-38a).

9 "Kolstad’s supervisor whose advice [the selecting official] relied on 
in deciding to promote [the male employee] instead of Kolstad, told 
sexually offensive jokes at the office and referred to professional women 
as ‘bitches’ and ‘battleaxes.’” (App. 40a).

10 Plaintiff asked the district court to follow a then recent District of 
Columbia Circuit decision regarding punitive damages under 42 U.S.C. 
§ 1981, which had held that evidence sufficient to support a finding of 
intentional discrimination would also support an award of punitive 
damages. Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995).



6

offered sharply differing views as to the legal standard for 
awarding punitive damages under section 1981a of Title VII. 
(App. 49a-53a, 57a-58a). The court of appeals granted 
rehearing en banc limited to this issue. (App. 75a-76a).

A narrowly divided en banc court adopted an 
extraordinarily stringent limitation on punitive damages 
awards under Title VII and sustained the rejection of 
petitioner’s punitive damage claim. Five members of the en 
banc court joined in an opinion written by Judge Williams, 
who had dissented from the original panel decision. Five 
other members of the court joined in an opinion, written by 
the author of that panel decision, Judge Tatel, endorsing a 
substantially less restrictive standard. The eleventh member 
of the court of appeals, who cast the tie breaking vote, 
proclaimed “the matter is exceedingly close”, and concurred 
in Judge Williams’ opinion on the ground that “the language 
of § 1981a(b)(l) will bear the meaning the majority opinion 
ascribes to it.” (App. 23a).

The majority opinion held that “punitive damages in a 
Title VII case may be imposed only on a showing of 
egregious conduct” (App. 2a), “truly outrageous acts of 
discrimination.” (App. 21a n. 9). The majority dismissed 
intentional discrimination on the basis of sex, race or religion 
as a “garden variety” violation of the law insufficient by itself 
to warrant submission of petitioner’s punitive damage claim 
to the jury. (App. 18a). Although section 1981a expressly 
authorizes punitive awards if the plaintiff proves that 
discrimination occurred as a result of “reckless indifference” 
on the part of an employer, the majority held that a plaintiff 
could not meet that standard by showing that the employer 
intentionally discriminated and deliberately violated Title VTI.

The majority conceded that its standard appeared to be at 
odds with the actual language of section 1981a. “[Sjince



7

recklessness is typically subsumed within intent in the mens 
rea taxonomy, it might appear logical to read § 1981a(b)(l) 
as authorizing punitive damages whenever intent is shown.” 
(App. 6a). Similarly, Judge Randolph acknowledged

the common legal notion . . . that “[w]hen 
recklessness suffices to establish an element, such an 
element also is established if a person acts purposely 
or knowingly.” If one fed this data into a parsing 
machine, it would answer— . . . whenever there is 
intentional discrimination there is at least reckless 
disregard.

(App. 23a). Judge Randolph, however, dismissed these 
textual arguments as “linguistic points.” (Id.).

The majority acknowledged that its decision was contrary 
to the standard applied by the Second Circuit. (App. 20a). 
It recognized that Congress intended to base the Title VII 
punitive damage standard on the standard applicable to 
punitive damages claims under section 1981 (App. 10a), and 
emphasized that there was a “circuit split” regarding the 
section 1981 standard. (App. 8a-9a).

The five dissenters objected that the majority opinion was 
inconsistent with the language of the statute, which expressly 
authorizes punitive awards in cases of “reckless indifference.” 
The rule adopted by the majority, they argued, “read the 
reckless indifference standard out of the statute.” (App. 35a). 
The dissenters also objected to the “egregiousness” 
requirement on the ground that “section 1981a(b)(l) never 
mentions egregiousness.” (App. 24a). The dissenting opinion 
agreed that its difference with the majority regarding the 
standard for punitive awards under Title VII derived from a 
division among the circuits regarding section 1981 punitive 
damage awards. (App. 32a-33a). The five dissenters also



8

argued that the standard adopted by the majority was 
inconsistent with this Court’s decisions in Smith v. Wade, 461 
U.S. 30 (1983), and Hazen Paper Co. v. Biggins, 507 U.S. 
604 (1993). (App. 25a-29a).

REASONS FOR GRANTING THE WRIT

In 1991 Congress amended Title VII to authorize for the 
first time punitive damage awards for violations of that 
statute. Punitive damages are authorized if the respondent

engaged in a discriminatory practice or 
discriminatory practices with malice or with reckless 
indifference to the federally protected rights of an 
aggrieved individual.

42 U.S.C. §1981a(b)(l). Such awards are not permitted 
against government defendants or for practices that were 
unlawful solely because they had a disparate impact. 42 
U.S.C. §§ 1981a(a)(l), 1981a(b)(l).

This case presents a multi-faceted conflict regarding when 
punitive damages can be awarded under Title VII against 
employers guilty of intentional discrimination. Since 1991, 
a wide variety of inconsistent rules have been adopted by the 
various circuits regarding such awards. As the court of 
appeals in the instant case frankly recognized, these 
differences regarding punitive damage awards under Title VII 
have their roots in a longstanding inter-circuit conflict 
regarding the standard for such awards under 42 U.S.C. § 
1981. (App. 8a-9a). This Court granted certiorari in 1996 to 
resolve that underlying § 1981 issue, but that case was



9

dismissed as moot after a settlement was reached. Merrill v. 
Barbour, cert, granted in part, 116 S.Ct. 80S,11 dismissed as 
moot, 116 S.Ct. 1037 (1996). The confusion among the 
lower courts also stems from a disagreement among those 
courts about the meaning of several decisions of this Court, 
particularly Smith v. Wade, 461 U.S. 30 (1983).

I. THE DECISION BELOW IS IN CONFLICT WITH
DECISIONS OF SEVEN OTHER CIRCUITS

(a) The majority of the en banc court below adopted two 
core holdings. First, it concluded that the existence of 
intentional discrimination on the part of an employer could 
never by itself be sufficient to permit an award of punitive 
damages. (App. 5a). Second, the en banc majority held that 
the proper standard for determining the availability of punitive 
damages turns on the type of discriminatory practices in 
which an employer had engaged, and that such awards may be 
made only for discriminatory practices that are “egregious.” 
“We . . . hold that punitive damages in a Title VII case may 
be imposed only on a showing of egregious conduct.” (App. 
2a). That standard cannot be met by “garden-variety” 
intentional discrimination (App. 18a); a plaintiff must prove 
the existence of “truly outrageous acts of discrimination.” 
(App. 21a n. 9).11 12 Judge Randolph, who cast the deciding

11 The Court granted certiorari limited to Question 2 of the petition, 
which was

“Whether Smith v. Wade, 461 U.S. 30 (1983), permits an award of 
punitive damages in every case under 42 U.S.C. § 1981 in which 
there is a finding of intentional discrimination.”

Petition for Writ of Certiorari, Merrill v. Barbour, No. 95-27, p. i.

12 See App. at 20a(“The evidence in this case does not show the kind 
of egregious discriminatory conduct necessary for the imposition of 
punitive damages.”)



10

vote, insisted that punitive damages could be permitted in 
“only the worst cases.” (App. 23a).

The courts of appeals for the First, Second, Eighth and 
Tenth circuits have expressly considered and rejected the very 
doctrine embraced by the District of Columbia Circuit. The 
court below candidly recognized that its decision conflicts 
with the Second Circuit opinion in Luciano v. Olsten Corp. , 
110 F.3d 210 (2d Cir. 1997). (App. 20a). In Luciano, the 
defendant advanced, and the court of appeals rejected, the rule 
adopted by the court in this case.

The Company argues that Section 1981 of the Civil 
Rights Act of 1991 was intended to limit the 
availability of punitive damages to cases of 
“extraordinarily egregious” conduct. . . . We find 
nothing in the language of the statute to support the 
Company’s argument that there must . . .  be a 
finding that the defendants’ conduct was 
“extraordinarily egregious.” . . . [The defendant] 
contends that remarks of Senator Dole and 
Representative Hyde . . . support its interpretation 
that the punitive damages provision requires a 
showing of “extraordinarily egregious” conduct. The 
short answer to this is that the plain language of the 
statute . . .  is inconsistent with these statements.

110 F.3d at 219-220. The court below relied on the identical 
remarks of Senator Dole that were rejected by the Second 
Circuit in Luciano. (App. 10a).

In Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 
1997), the Eighth Circuit endorsed both Luciano and the 
original panel decision in this very case.

We do not agree that the 1991 Civil Rights Act, 42 
U.S.C. § 1981a(b)(l), limits the availability of



11

punitive damages to “exceptional circumstances of 
unusual bad motive that transcends ordinary 
intentional misconduct.” The Second Circuit rejected 
a similar argument in Luciano . . . accord Kolstad v. 
American Dental A ss’n, 108 F.3d at 1437-39.

123 -F.3d at 1065-66. The Tenth Circuit rejected any 
egregiousness requirement in Adakai v. Front Row Seat, Inc., 
125 F.3d 861, 1997 WL 603458 at *2 (10th Cir., Oct. 1,
1997)(“The defendant’s acts need not have been 
‘extraordinarily egregious’ to support a finding of punitive 
damages.”). The First Circuit has twice held that under all 
federal civil rights statutes authorizing punitive damages proof 
of intentional discrimination is sufficient per se to warrant 
such an award. Criado v. IBM Corp., 1998 WL 282836 (1st 
C ir., June 5, 1998),13 petition fo r  rehearing pending-,13 14 15 
Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998).13

13 "This circuit has held that under federal law the evidence of intent
that is necessary to support a punitive damages award ‘is the same 
[evidence of] “intent” that is required for a finding of discrimination in the 
first place.’ Dichner v. Liberty Travel. . . 1998 WL 282836 at *8.

14 The defendant in Criado has sought rehearing on the ground that 
the decision in that case is in conflict with the en banc decision in the 
instant case. Petition for Rehearing, Criado v. IBM Corp., No. 97-1342 
(1st Cir.), pp. 7-8.

15 "Under a federal antidiscrimination statute that provides for 
punitive damages (like the ADA), a jury may be allowed to assess such 
damages ‘when the defendant’s conduct is shown to be motivated by evil 
motive or intent, or when it involves reckless or callous indifference to the 
federally protected rights of others.’ Smith v. Wade, 461 U.S. 30, 56 . . 
. . A jury need not find some special sort of malign purpose in order to 
exact punitive damages in a disparate treatment case because the ‘intent’ 
that is necessary to undergird an award of punitive damages in such a case 
is the same ‘intent’ that is required for a finding of discrimination in the 
first place.” 141 F.3d at 33-34.



12

Under the standard applied by the First, Second, Eighth and 
Tenth Circuits, it would have been error to refuse to charge 
the jury in this case on punitive damages.16

Outside the District of Columbia Circuit, the prevailing 
rule is that the availability of punitive damages turns, not on 
the particular type of discriminatory practices in which an 
employer may have engaged, but on the discriminator’s 
mental state. In the First Circuit, punitive damages may be 
awarded if there was “consciousness of wrongdoing” on the 
part of the employer. McKinnon v. Kwong Wah Restaurant, 
83 F.3d 498, 509 (1st Cir. 1996). The Ninth Circuit 
authorizes such awards on a showing that “the defendant 
‘almost certainly knew that what he was doing was wrongful 
and subject to punishment.’” Ngo v. Reno Hilton Resort 
Corp., 140 F.3d 1299, 1304 (9th Cir. 1998). The Eighth 
Circuit holds that the “reckless indifference” required by the

16 As the en banc majority noted, the law in the Seventh Circuit varies 
from panel to panel. (App. 20a n.8). In Merriweather v. Family Dollar 
Stores oflnd., Inc., 103 F.3d 576, 581 (7th Cir. 1996), that circuit held

[Ejvidence that suffices to establish an intentional violation of 
protected civil rights also may suffice to permit the [factfinder] to 
award punitive damages, provided the [court or jury], in its 
discretionary moral judgment, finds that the conduct merits a 
punitive award. No additional evidence [of reckless indifference] 
is needed.

This is the standard adopted in Luciano and rejected by the en banc court 
in this case. Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 
(7th Cir. 1995), upheld an award of punitive damages based on a single 
case of discriminatory termination plus “a smidgen” of sexual harassment. 
Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 438 (7th 
Cir. 1997), approved such punitive awards for “intentional disregard for 
the statutory rights of . . . female employees”. On the other hand, Lindale 
v. Tokheim Corp., 1998 WL 272763 *6 (7th Cir. May 29, 1998), requires 
proof of some sort of “circumstances of aggravation”, such as “a pattern 
of flouting of the law.”



13

statute can be demonstrated by proof that the defendant “knew 
what constituted unlawful employment practices”, Kim v. 
Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir. 1997), or by 
proof, in a harassment case, that the harassers acted “knowing 
that [their language] would offend a reasonable person in [the 
plaintiffs] position.” Delph v. Dr.Pepper Bottling Co. o f 
Paragould, Inc., 130 F.3d 349, 358 (8th Cir. 1997). The 
conscious wrongdoing rule applied in the First, Eighth and 
Ninth Circuits is similar to the standard proposed by the five 
dissenting judges in the court below. (App. 25a-26a. 29a- 
30a).

Three circuits apply a rule that punitive damages may be 
awarded if the proven intentional discrimination was 
perpetrated by an individual who was part of “management” 
or “higher management”. Lindale v. Tokheim Corp., 1998 
WL 222763 *6 (7th Cir. May 29, 1998)(“involvement of 
higher management” among the aggravating circumstances 
warranting punitive damages); Kimzey v. Wal-Mart Stores, 
Inc., 107 F.3d 568, 575 (8th Cir. 1997)(“The requisite level 
of recklessness . . . can be inferred from management's 
participation in the discriminatory conduct”); Adakai v. Front 
Row Seat, Inc., 1997 WL 603458 *2 (10th Cir. Oct. 1, 
1997)(“The requisite level of recklessness or outrageousness 
[required to support punitive damages] can be inferred from 
management’s participation in the discriminatory 
conduct. ”)(Insertion in original)(dtmg Kim v. Nash Finch 
Co.). Had the instant case arisen in the Seventh, Eighth or 
Tenth Circuits, punitive damages would have been entirely 
permissible in this case, since, as the undisturbed panel 
decision noted (App. 47a-48a), and the en banc dissenters 
emphasized (App. 38a-39a), the proven discrimination 
occurred at the hands of respondent’s national Executive 
Director.



14

A number of circuits also hold that punitive awards are 
proper if an employer perpetrated the discrimination through 
a deliberate scheme, engaged in duplicitous behavior, or lied 
about its actions or motives. Kim v. Nash Finch Co., 123 F.3d 
1046, 1066-67 (8th Cir. 1997)(relying on fact that perpetrator 
both lied and doctored victim’s personnel file); Merriweather 
v. Family Dollar Stores o flnd., Inc., 103 F.3d 576, 582 (7th 
Cir. 1996)(punitive award justified where employer 
“attempted[ed] to deceive the court, by presenting false 
reasons for its decision to discharge”); Patterson v. P.H.P. 
Healthcare Corp., 90 F.3d 927, 943 (5th Cir. 1996), cert, 
denied, 117 S. Ct. 767 (1997) (relying on discriminator’s 
actions “in falsifying documents to establish a paper trail”). 
As the dissenting opinion below properly emphasized (App. 
37a-40a), the facts of this case easily satisfy these 
requirements.17 On the other hand, the Sixth Circuit holds 
that duplicity is not a legally sufficient basis for punitive 
damages, Turk v. Holland Hospitality, Inc., 85 F.3d 1211, 
1216 (6th Cir. 1996), and the majority below necessarily 
rejected the standards accepted in the Fifth, Seventh and 
Eighth Circuits.

The court below, although acknowledging the existence 
of a conflict regarding the standard under Title VII for 
punitive damages, sought to minimize its difference with the 
other circuits by proposing to define the issue simply as 
whether section 1981a requires proof of anything more than 
intentional discrimination. As to that issue, of course, there 
is a clear inter-circuit conflict. Moreover, as the dissent 
below suggested, even the circuits which require more than 
proof of intentional discrimination require far less than does

17 E.g. App. 38a-39a (jury “could have concluded” based on evidence 
before it that respondent had “altered documents” and had “attempted to 
cover up” the pre-selection of the male candidate.)



15

the District of Columbia Circuit, and virtually all other 
circuits adhere to a legal standard that would readily be 
satisfied by the circumstances of this case.

(b) The en banc majority expressly refused to apply to a 
Title VII discrimination claim the standard which is applied 
in that circuit to a section 1981 discrimination claim. In the 
District of Columbia Circuit, the punitive damages standard 
in section 1981 cases is avowedly different from and far less 
restrictive than that circuit’s standard for Title VII cases. In 
a section 1981 case “evidence that suffices to establish an 
intentional violation of protected civil rights also may suffice 
to permit the jury to award punitive damages, provided the 
jury, in its ‘discretionary moral judgment’. . . . finds that the 
conduct merits a punitive award. . . .  No additional evidence 
is required.” Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. 
Cir. 1995). This is precisely the standard which the court 
below rejected for Title VII claims. Thus, the availability of 
punitive damages in a race discrimination case in that circuit 
depends on whether the plaintiff has sued under section 1981 
or under Title VII, and sex discrimination victims now have 
less effective remedies than do race discrimination victims, 
precisely the anomalies that Congress sought to correct when 
it amended Title VII in 1991.

This approach has been generally rejected by the other 
courts of appeals. Most adhere to the view expounded by the 
Fifth Circuit that Congress intended that a single standard be 
applied to all such punitive damage claims, regardless of 
whether they arose under Title VII or section 1981 and 
regardless of whether the discrimination at issue was on the 
basis of race, national origin, gender or religion.

Congress’s [sic] primary concern with enacting
punitive damages under § 1981a(b)(l) was to unify
the law under Title VII. . . .  In furtherance of this



16

unification effort, Congress permitted the imposition 
of punitive damages under Title VII in the same 
general circumstances as punitive damage awards 
imposed by courts under § 1981 . . . . Accordingly, 
we shall consider the propriety of punitive damage 
awards under §§ 1981 and 1981a under the same 
criteria.

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 941-42 
(5th Cir. 1996), cert, denied, 117 S. Ct. 767 (1997). The 
Eighth and Ninth Circuits have expressed a similar view. 
Kim v. Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir. 
1997)(punitive damages available under section 1981a “to the 
same extent and under the same standards that are available to 
plaintiffs under 42 U.S.C. § 1981"); Ngo v. Reno Hilton 
Resort Corp., 140 F.3d 1299, 1301-04 (9th Cir. 1998). 
Decisions in the First,18 Second,19 and Fourth20 Circuits 
repeatedly apply section 1981 caselaw in determining the 
availability of punitive damages under Title VII. Only in the

18 McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 508 (1st Cir.
1996) (citing Rowlett v. Anheuser-Busch, Inc.,832 F. 2d 194 (1st Cir. 
1987). The First Circuit has twice cited Rowlett for a more general rale 
that in all federal civil rights cases proof of intentional discrimination is 
sufficient to warrant an award of punitive damages. Criado v. IBM Corp., 
1998 WL 282836 *8 (1st Cir. June 5, 1998)(“ Rowlett held that a finding 
of intentional discrimination is sufficient to warrant punishment for a 
defendant”); Dichner v. Liberty Travel, 141 F.3d 24, 34 (1st Cir. 1998) 
(quoting Rowlett for the rule that in an intent case “the state of mind 
necessary to trigger liability for the wrong is at least as culpable as that 
required to make punitive damages applicable.”).

19 Luciano v. Olsten Corp, 110 F.3d 210, 220 (2d Cir. I991)(citing 
Rowlett).

20 Harris v. L & L Wings, Inc., 132 F.3d 978, 983 (4th Cir.
1997) {citing Beauford v. Sisters o f Mercy-Province o f Detroit, Inc., 816 
F.2d 1104 (6th Cir. 1987)).



17

District of Columbia Circuit is the availability of punitive 
damages avowedly more restricted in Title VII cases than in 
suits brought under section 1981.

(c) These conflicting Title VII standards have arisen in 
large measure because there are differing standards among the 
circuits regarding when awards of punitive damages are 
permissible under section 1981 itself. The majority below 
frankly acknowledged that widespread conflict.

[T]he circuits are deeply divided as to the proper 
standard for punitive liability under § 1981. . . . 
Four courts of appeals have held that egregious 
misconduct beyond mere intent to discriminate is 
required for punitive damages under § 1981 . . . . 
Three other circuits have held that a finding of 
intentional discrimination, without more, is enough 
to put the question of punitive damages before the 
jury in the usual sec. 1981 case . . . .  [T]he House 
Report reflects this circuit split.

(App. 8a-9a) (Emphasis added). The dissenters agreed that 
“our sister circuits have split over the meaning of Smith [v. 
Wade]," (App. 33a), noting the existence of

two irreconcilable section 1981 cases —Beauford v. 
Sisters o f Mercy-Province o f Detroit, Inc., 816 F.2d 
1104, 1109 (6th Cir. 1987), limiting punitive 
damages to “egregious” cases, and Rowlett v. 
Anheuser-Busch, Inc., 832 F.2d 194, 205-06 (1st 
Cir. 1987), holding that plaintiffs need prove nothing 
beyond intentional discrimination for juries to 
consider punitive damages. The Court’s 
egregiousness standard comports with Beauford. My 
interpretation of section 1981a comports with 
Rowlett.

(App. 32a).



18

The leading section 1981 case disapproved by the en banc 
court below, despite having been cited in the House Report on 
the 1991 Civil Rights Act, is Rowlett v. Anheuser-Busch, Inc. , 
832 F.2d 194 (1st Cir. 1987)21. The First Circuit opinion in 
that case was joined by then Judge Breyer. Rowlett held that 
the phrase “reckless indifference,” words later incorporated 
verbatim in the 1991 Act, mean that

punitive damages are within the ju ry ’s discretion in 
cases requiring proof of intentional wrongdoing . . . .
In such cases, the state of mind necessary to trigger 
liability for the wrong is at least as culpable as that 
required to make punitive damages applicable. That 
does not mean that punitive damages are appropriate 
in each case of an intentional wrong, but rather that in 
each case the trier of fact has the discretion to 
determine whether punitive damages are necessary.

832 F.2d at 205. The en banc court below expressly refused 
to apply this standard. (App. 9a-10a). Conversely, Rowlett 
expressly rejected the requirement, adopted below, that a 
victim of intentional discrimination must also adduce proof of 
“aggravating circumstances.” 832 F.2d at 205-06.

The First Circuit reiterated this view in Hernandez- 
Tirado v. Artau, 874 F.2d 866, 868 (1st Cir. 1989), on which 
the dissenters below expressly relied. (App. 30a). That 
decision, written by then Judge Breyer, reasserted that 
“reckless indifference” under section 1983 could ordinarily be 
demonstrated by evidence of an intentionally discriminatory 
act. 874 F.2d at 868. Hernandez-Tirado explained, as did 
the dissenters below (App. 29a-30a), that that standard would 
not mean that punitive damages could be awarded in all cases

21 "Rowlett. . . supports Kolstad’s position, while . . . Beauford . . . 
supports ADA’s position.” (App. 9a).



19

of intentional discrimination, because there could be situations 
in which it was not clear whether the intentional action was 
unlawful; in such instances the defendant’s action would not 
involve reckless indifference. 874 F .2d at 869-71. The en 
banc court below, however, vehemently rejected that 
approach. (App. 18a).22

Two years ago, this Court granted certiorari to resolve 
the circuit conflict involving the underlying § 1981 issue, but 
that case was dismissed as moot after a settlement was 
reached. Merrill v. Barbour, cert, granted in part, 116 S.Ct. 
805, dismissed as moot, 116 S.Ct. 1037 (1996).

II. THE DECISION BELOW IS IN CONFLICT W ITH
THREE DECISIONS OF THIS COURT

The five dissenting judges below properly concluded that 
the majority opinion is inconsistent with this Court’s opinions 
in Smith v. Wade, 461 U.S. 30 (1983), Trans World Airlines, 
Inc. v. Thurston, 469 U.S. I l l  (1985), and Hazen Paper Co. 
v. Biggins, 507 U.S. 604 (1993). (App. 24a-28a). The circuit 
courts which have rejected the “egregiousness” requirement 
adopted by the court below have repeatedly concluded that

22 Compare App. 16a (rejecting as a meaningless distinction a rule 
under which “[i]f the scope or nature of a given right is sufficiently 
obscure, a defendant might intentionally discriminate but be merely 
negligent as to the existence of the right”)(emphasis added) with 874 F.2d 
at 870 (“Although [the defendant’s] dismissal of Hernandez was an 
‘intentional’ tort, the dismissal was negligent in respect to the existence of 
a federally protected right.”)(Emphasis added).



20

this Court’s decision in Smith v. Wade precludes adoption of 
any such standard.23 The Ninth Circuit recently observed that 
since the decision in Smith v. Wade “many other decisions [in 
the circuit courts have] departed from Wade’s approach.” 
Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299, 1302 (9th 
Cir. 1998).

The court below recognized that the actual language of 
section 1981a was expressly taken from Smith v. Wade, and 
the legislative history makes clear Congress’ intent to adopt 
the standard in Smith. (App. 10a). The majority below, 
however, “construe[d] Smith as establishing a threshold 
requirement of egregiousness for the imposition of punitive 
damages in § 1983 cases—a requirement which Congress 
transferred largely intact to § 1981a(b)(l).” (App. 12a). On 
this interpretation of Smith neither an intent to discriminate on 
the basis of race or sex, nor an intent to violate the 
Constitution, would be sufficient under Smith to warrant the 
imposition of punitive damages.

This surprising conclusion assuredly stands Smith v. 
Wade on its head. The issue in Smith v. Wade was whether 
punitive damages in section 1983 cases should be limited to 
instances of intentional wrongdoing, or should be extended as 
well to cases of reckless indifference. The majority opinion,24

23 Criado v. IBM Corp., 1998 WL 282836 at *8 (citing Smith v. 
Wade); Dichner v. Liberty Travel, 141 F.3d at 33 (citing Smith v. Wade); 
Luciano v. Olsten Corp., 110 F.3d at 220 (citing Smith v. Wade); 
Merriweather v. Family Dollar Stores oflnd., Inc., 103 F.3d at 582 (citing 
Smith v. Wade); Kim v. Nash Finch Co., 123 F.3d at 1066 (citing Smith 
v. Wade).

24 461 U.S. at 47 (punitive damages awardable for “evil motive” as 
well as reckless indifference), 54 (punitive damages appropriate for “all 
intentional or reckless invasions of the rights of others”)(emphasis in 
original).



21

the dissenting opinion of then Justice Rehnquist,25 and the 
dissenting opinion of Justice O’Connor,26 all agreed that such 
intentional wrongdoing would warrant an award of punitive 
damages. The actual holding of the Court’s decision was as 
follows:

We hold that a jury may be permitted to assess 
punitive damages in an action under § 1983 when the 
defendant’s conduct is shown to be motivated by evil 
motive or intent, or when it involves reckless or 
callous indifference to the federally protected rights 
of others.

461 U.S. at 56. Nothing in this formulation contains any 
reference to egregiousness; intentional discrimination on the 
basis of race or sex would assuredly constitute just such an 
“evil motive or intent,” except in those circumstances in which 
the legality of the action might fairly have been in dispute. 
The First Circuit correctly rejected the D.C. Circuit’s 
interpretation of Smith v. Wade.

The Court [in Smith] made no mention of any 
requirement that, in addition to charging the jury 
about the level of intent necessary to support 
punitive damages, a trial court also explain to the 
jury that the misconduct be “extraordinary” or

25 461 U.S. at 56 (“some degree of bad faith or improper motive”), 
57 (“Wrongful intent”, “evil intent”), 60 (“some sort of wrongful motive 
. . . or intentional doing of an act known to be unlawful”), 64 (“evil 
motive”), 72 (“evil motive”), 73 (an “intentional wrong”), 74 (“guilty 
intention”, “wrongful intention”), 75 (“evil motive”), 78 (“some showing 
of wrongful intent”), 79 (“evil motive”), 84 (“evil motive”, “wrongful 
intent”), 87 (“wrongful intent”).

26 461 U.S. at 94 (punitive damages appropriate for "intentional . . . 
violations of constitutional rights”).



22

“outrageous.” We will not construe this silence as a
mere inadvertent lapse.

Rowlett v. Anheuser-Busch, Inc., 832 F.2d at 206.

The decision below conflicts as well with this Court’s 
decisions in Trans World Airlines, Inc. v. Thurston, 469 U.S. 
I l l  (1985), and Hazen Paper Co. v. Biggins, 507 U.S. 604 
(1993). Both of these decisions construe the provision of the 
ADEA authorizing awards of liquidated damages for “willful” 
violations of the ADEA, and hold that a violation of the law 
is willful if “the employer . . . knew or showed reckless 
disregard for the matter of whether its conduct was prohibited 
by the ADEA.” 469 U.S. 126. The “reckless disregard” 
standard in Thurston and Hazen Paper is indistinguishable 
from the “reckless indifference” standard in Title VII. 
Thurston holds that this standard is met by proof that the 
employer “wholly disregard[ed] the law . . . without making 
any reasonable effort to determine whether the plan he is 
following would constitute a violation of the law.” Id .. That 
standard is assuredly satisfied by a finding of intentional 
discrimination on the basis of sex absent a claim—not 
advanced in this case—that the defendant had some reason to 
believe that the proven discrimination was lawful.

Only five years ago, this Court in Hazen Paper 
emphatically rejected an argument indistinguishable from that 
adopted by the District of Columbia Circuit in this case. The 
Court noted that the lower courts had frequently disregarded 
the holding of Thurston in cases of intentional age 
discrimination against individual employees. Writing for a 
unanimous Court, Justice O ’Connor observed that “[t]he chief 
concern of these Circuits,” like the majority below, “has been 
that the application of Thurston would defeat the two-tiered 
system of liability intended by Congress, because every 
employer that engages in informal age discrimination knows



23

or recklessly disregards the illegality of its conduct.” 507 
U.S. at 615-16. The holdings of the circuit court opinions 
disapproved by this Court were virtually indistinguishable 
from the en banc opinion in this case.

At least one Circuit refuses to impose liquidated 
damages in such a case unless the employer’s 
conduct was “outrageous”. See, e.g. Lockhard v. 
Westinghouse Credit Corp., 879 F.2d 43, 57-58 
(CAS 1989). Another requires that the underlying 
evidence of liability be direct rather than 
circumstantial. See, e.g., Neufeld v. Searle 
Laboratories, 884 F.2d 335, 340 (CA8 1989).27

507 U.S. at 615. This Court rejected these proposed 
limitations.

We . . . reaffirm that the Thurston definition of 
“willful”—that the employer either knew or showed 
reckless disregard for the matter of whether its 
conduct was prohibited by the statute—applies to all 
disparate treatment cases under the ADEA. Once a 
“willful” violation has been shown, the employee 
need not additionally demonstrate that the 
employer’s conduct was outrageous, or provide 
direct evidence of the employer’s motivation . . . .

507 U.S. at 617. Intentional, knowingly illegal discrimination 
that is “reckless disregard” under the ADEA must assuredly 
be “reckless indifference” under Title VII.

27 A similar argument was made by the majority below. (App. 21a
n.9).



24

III. THIS CASE PRESENTS ISSUES OF SUBSTANTIAL
IMPORTANCE

The number of cases affected by the question presented 
in this case is demonstrably substantial. According to the 
Administrative Office of the U.S. Courts, more than 24,000 
employment discrimination cases are filed annually in federal 
court.28 The EEOC receives more than 55,000 Title VII 
charges each year.29 Although exact statistics are not available 
concerning the number of cases and charges alleging 
intentional discrimination under Title VII that are filed 
annually, they undeniably involve several thousand cases in 
the district courts and tens of thousands of Title VII charges.

The impact of the question presented in this case is 
clearly much greater than the analogous question under 
section 1981, which this Court granted certiorari to resolve 
two years ago in Merrill v. Barbour, cert, granted in part, 
116 S.Ct. 805 (1996). As a practical matter, a decision by 
this Court regarding the standard for punitive damage awards 
under Title VII will inform, if not control, the standard for 
such awards under section 1981 and under other federal civil 
rights statutes where the controversy regarding that standard 
today divides the lower courts.30

28 Administrative Office of the United States Courts, Table C-2A; 
U.S. District Courts Civil Cases Commenced, By Nature of Suit During 12 
Month Periods Ended Mar. 31, 1994 through 1998, Employment Civil 
Rights Cases for 12 Months Ended March 31, 1998: 24,111 cases.

29 EEOC, Title VII of the Civil Rights Act o f 1964 Charges: F Y 1991- 
F Y 1997, FY 1996: 55,388 charges; FY 1997: 58,615 charges (compiled 
4/17/98).

30 E.g. Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998) 
(Americans with Disabilities Act); United States v. Balistrieri, 981 F.2d 
916 (7th Cir. 1992) (Fair Housing Act).



25

The majority below dismissed the intentional 
discrimination forbidden by Title VII as no more than a 
“garden variety” violation of federal law. (App. 18a). This 
attitude is entirely inconsistent with the profound importance 
which Congress has attached to federal anti-discrimination 
measures, which this Court has recognized to be “of the 
highest priority.” Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400, 402 (1968).

Congress does not take a benign view of intentional 
discrimination in the workplace. Indeed, Congress expanded 
Title VII’s remedies for victims of intentional discrimination 
to include punitive damages precisely because it found that 
backpay and equitable relief had proven inadequate “to deter 
unlawful harassment and intentional discrimination in the 
workplace.” 42 U.S.C. § 1981a Note. The notion that some 
forms of intentional unlawful discrimination are more 
acceptable than others likewise offends Congress’ recognition 
in the Glass Ceiling Act (enacted the same day as section 
1981a) that “despite a dramatically growing presence in the 
workplace, women and minorities remain underrepresented in 
management” because “artificial barriers exist to 
advancement....” 42 U.S.C. § 2000e Note, section 202(a)(1)-
(2). Pre-selection of a favored candidate constitutes an 
insurmountable barrier to advancement by women and 
minorities to positions in management, as the ADA itself once 
recognized.

The problem of discrimination has led the nation to adopt 
four constitutional amendments, fight a Civil War, and 
fashion a sea change in the relationship of the states to the 
national government. The District of Columbia Circuit’s 
dismissive attitude towards the evil of intentional 
discrimination undermines all enforcement of civil rights laws 
in that circuit. The proper understanding of the gravity of



26

intentional discrimination was correctly articulated in the First 
Circuit decision spurned by the majority below.

In a case involving intentional race discrimination 
the explanation of the twin purposes of punishment 
and deterrence is sufficient to guide the jury. After 
all, can it really be disputed that intentionally 
discriminating against a black man on the basis of his 
skin color is worthy of some outrage?

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 at 206.

CONCLUSION

For the above reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Court of Appeals for 
the District of Columbia Circuit.

Respectfully submitted,

J o se ph  A. Y a b l o n sk i 
Counsel o f Record 

Y a b l o n s k i, B o t h  &  E d e l m a n  
1140 Connecticut Avenue, N.W. 
Suite 800
Washington, D.C. 20036 
(202) 833-9060

E r ic  Sc h n a p p e r  
U n iv e r s it y  o f  W a sh in g t o n  
Sc h o o l  o f  L a w  
1100 N.E. Campus Parkway 
Seattle, WA 98105 
(206) 616-3167

Counsel fo r  Petitioner



APPENDICES



la

APPENDIX A

Urnteb States; Court of Appeal#
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 1997 Decided May 8, 1998

No. 96-7030

Carole Kolstad, 
Appellant/Cross-Appellee

V.

American D ental Association, 
Appellee/Cross-Appellant

Consolidated with 
No. 96-7047

Appeals from the United States District Court 
for the District of Columbia 

(No. 94cv01578)

Bruce S. Harrison and Elizabeth Torphy-Donzella argued 
the cause and filed the briefs for appellee/cross-appellant.

Joseph A. Yablonski argued the cause and filed the brief 
for appellant/cross-appellee.

Bills of costs must be filed within 14 days after entry of judgment. 
The court looks with disfavor upon motions to file bills of costs out 
of time.



2a

J. Ray Terry, Jr., Deputy General Counsel, and Robert J. 
Gregory, Attorney, were on the brief for amicus curiae Equal 
Employment Opportunity Commission.

Before: E dwards, Chief Judge, W ald, S ilberman,
W illiams, Ginsburg, Sentelle, H enderson, R andolph,
Rogers, T atel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge W illiams.

Concurring opinion filed by Circuit Judge Randolph.

Dissenting opinion filed by Circuit Judge Tatel, with 
whom Chief Judge E dwards, and Circuit Judges Wald,
Rogers and Garland join.

W illiams, Circuit Judge: Carole Kolstad sued her employ­
er, the American Dental Association (“ADA”), under Title VII 
of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. At the 
close of evidence, the district court refused to instruct the 
jury on punitive damages. The jury awarded Kolstad back 
pay, and the district court denied ADA’s motion for judgment 
as a matter of law on the issue of liability. A panel of this 
court reversed the district court’s dismissal of Kolstad’s puni­
tive damages claim and remanded for a trial on punitive 
damages. Kolstad v. American Dental A ss’n, 108 F.3d 1431, 
1437-39 (D.C. Cir. 1997). We granted en banc review on the 
question whether the standard of evidence for punitive dam­
ages under Title VII is, in all but a narrow range of cases, no 
higher than the standard for liability. We reject that view 
and hold that punitive damages in a Title VII case may be 
imposed only on a showing of egregious conduct. We further 
hold that no evidence of such behavior was shown at trial in 
this case, and thus affirm the district court on the issue of 
punitive damages.

:fc

ADA is a Chicago-based professional organization with an 
office in Washington. Jack O’Donnell worked in the Wash­
ington office, where he held the double-barreled title of 
Director of Legislation and Legislative Policy and Director of 
the Council on Government Affairs and Federal Dental Ser­



3a

vices. The first role involved developing and advocating 
ADA’s stance on federal legislation and regulations; the 
second entailed coordinating regular meetings of the Council 
on Governmental Affairs, a policy-making body composed of 
ADA members.

In September 1992 O’Donnell announced he would retire at 
year’s end. Upon learning of O’Donnell’s impending depar­
ture, Kolstad (then serving as ADA’s Director of Federal 
Agency Relations) and Tom Spangler (then ADA’s Legislative 
Counsel) each expressed interest in the vacancy. Since 1988, 
when Kolstad became responsible for federal regulatory mat­
ters at ADA, Leonard Wheat (the head of the Washington 
office) had repeatedly rated her performance as “distin­
guished.” Before coming to ADA, Kolstad had spent six 
years in the General Counsel’s office of the Department of 
Defense, where she drafted proposed legislation, prepared 
testimony for congressional hearings, and represented the 
Department’s interests on Capitol Hill. Spangler began 
working at ADA in 1991. He dealt mainly with legislative 
matters, and had also received “distinguished” performance 
evaluations from Wheat. Before joining ADA, Spangler 
spent five years as a lobbyist for the National Treasury 
Employees Union. Both Kolstad and Spangler are lawyers. 
Each had worked directly with O’Donnell, Spangler principal­
ly supporting his lobbying efforts and Kolstad assisting his 
management of the Council.

Wheat asked Dr. William Allen, ADA’s Executive Director 
in Chicago, to appoint O’Donnell’s successor. After consult­
ing with Wheat, Allen revised the “Position Description Ques­
tionnaire” for O’Donnell’s job, incorporating verbatim ele­
ments of the Position Description Questionnaire that had 
been used to hire Spangler in 1991. (There is no evidence 
that the job has not in fact included those elements.) In 
October 1992 Wheat approved a performance evaluation of 
Spangler in which Spangler stated that one of his objectives 
for 1993 was to “provide management and administrative 
support . . .  for the Council on Government Affairs,” work 
that O’Donnell was then performing.

Spangler formally applied for the vacancy once it was 
posted in November 1992. Kolstad also applied, after com-



4a

plaining in a letter to Allen that Wheat had refused for 
several weeks to meet with her to discuss her interest in the 
position. Wheat interviewed both applicants and recom­
mended Spangler for the job. In December 1992 Allen 
telephoned Kolstad to tell her that he had given the pro­
motion to Spangler, explaining that she lacked experience 
with health care reform and was too valuable to ADA in her 
current position to take on O’Donnell’s job.

Kolstad’s claims of discrimination rest largely on the idea 
that ADA had in effect picked Spangler in advance of the 
formal selection process; seeing the formal process as largely 
facade, she contends that its artificial quality evidences intent 
to engage in sex discrimination. She also gave testimony, 
hotly contested, that Wheat told sexually offensive jokes at 
staff meetings and sometimes used derogatory terms to refer 
to prominent professional women.

After exhausting her administrative remedies before the 
Equal Employment Opportunity Commission, Kolstad filed 
suit, charging ADA with unlawful employment discrimination 
and seeking equitable relief, 42 U.S.C. § 2000e—5(g)(1), and 
damages, 42 U.S.C. § 1981a. At the close of the trial evi­
dence, the district judge declined to give the jury the issue of 
punitive damages. The jury found that ADA had unlawfully 
discriminated against Kolstad on the basis of sex and award­
ed her $52,718 in back pay. The district court denied ADA’s 
motion for judgment as a matter of law on liability. The 
court also held that Kolstad was not entitled to attorneys’ 
fees or the equitable remedy of instatement. Kolstad v. 
American Dental A ss’n, 912 F. Supp. 13 (D.D.C. 1996).

A panel of this court affirmed the denial of ADA’s motion 
for judgment as a matter of law, but reversed and remanded 
for trial on punitive damages and for reconsideration of 
Kolstad’s claims for instatement and attorneys’ fees. Kolstad 
v. American Dental A ss’n, 108 F.3d 1431 (D.C. Cir. 1997). 
We granted rehearing en banc on the question whether the 
issue of punitive damages was properly withheld from the 
jury in this case. We conclude that it was, and affirm the 
district court.

* * *



5a

Until 1991 successful plaintiffs in Title VII cases could only 
get “equitable” relief. See Landgraf v. USI Film  Products, 
511 U.S. 244, 252-53 (1994). In the Civil Rights Act of 1991, 
Congress authorized a broader range of monetary remedies 
for Title VII plaintiffs. The Act provides that a plaintiff who 
proves “intentional discrimination” in violation of Title VII 
may recover compensatory and punitive damages in addition 
to the equitable relief available under prior law. 42 U.S.C. 
§ 1981a(a). A separate provision—the one at issue in this 
proceeding—limits the recovery of punitive damages to cases 
in which “the complaining party demonstrates that the re­
spondent engaged in a discriminatory practice or discrimina­
tory practices with malice or with reckless indifference to the 
federally protected rights of an aggrieved individual.” 42 
U.S.C. § 1981a(b)(l). The sum of compensatory and punitive 
damages is capped at a total ranging from $50,000 and 
$300,000 depending on the employer’s size. 42 U.S.C. 
§ 1981a(b)(3).

We think that by enacting a separate provision setting out 
a special standard for the imposition of punitive damages, 
Congress showed that it did not intend to make punitive 
damages automatically available in the standard case of inten­
tional discrimination under Title VII. The structure of the 
statute—one standard for basic liability, another for the 
exceptional remedy of punitive liability—strongly suggests 
that, before the question of punitive damages can go to the 
jury, the evidence of the defendant’s culpability must exceed 
what is needed to show intentional discrimination. To be 
sure, Congress’s choice of language (“malice or . . .  reckless 
indifference to . . .  federally protected rights”) hardly pin­
points what the content of that “something more” ought to be. 
Still less, however, does that language support either the rule 
proposed by Kolstad—that punitive damages should be avail­
able in every case strong enough to get to the jury on simple 
compensation—or even the marginally less permissive rule 
urged by the dissent.

We begin by rejecting Kolstad’s broad assertion that a 
finding of intentional discrimination is enough to put the 
question of punitive damages before the jury in every Title



6a

VII case.1 Such an approach would conflict with the remedial 
structure of the statute, with legislative history indicating 
that Congress meant to reserve punitive damages for particu­
larly egregious violations of Title VII, and with the Supreme 
Court’s pronouncements on the purposes and availability of 
punitive damages. Kolstad’s position does draw some super­
ficial plausibility from the language of the statute: since 
recklessness is typically subsumed within intent in the mens 
rea taxonomy, it might appear logical to read § 1981a(b)(l) as 
authorizing punitive damages whenever intent is shown—in 
other words, whenever compensatory damages are available. 
It is a stretch, however, to conclude that, in expressing the 
standard for punitive damages in § 1981a(b)(l), Congress 
used terms whose meaning is clear or well settled. We said 
recently that mental-state standards like “recklessness” and 
“reckless disregard” are among the most malleable and am­
biguous in the law. See Saba v. Compagnie Nationale A ir  
France, 78 F.3d 664, 668-69 (D.C. Cir. 1996); see also United 
States v. Krizek, 111 F.3d 934, 941 (D.C. Cir. 1997). “Malice,” 
too, is susceptible of a range of meanings. See Smith v. 
Wade, 461 U.S. 30, 41 n.8 (1983); New York Times Co. v. 
Sullivan, 376 U.S. 254, 280 (1964). As we have said, the 
structure of the statute strongly points to a two-tiered 
scheme of liability; we decline to read the pliable and impre­
cise language of § 1981a(b)(l) to flatten that scheme.

The legislative history of the Civil Rights Act of 1991 
supports the conclusion we reach today. The House Report 
stated:

Plaintiffs must first prove intentional discrimination, then 
must prove actual injury or loss arising therefrom to 
recover compensatory damages, and must meet an even 
higher standard (establishing that the employer acted 1

1 N either compensatory nor punitive damages are available in so- 
called “disparate impact” cases, § 1981a(a)(l), or in “mixed motive” 
cases in which the defendant demonstrates that it would have taken 
the same action in the absence of the impermissible motivating 
factor, 42 U.S.C. § 2000e-5(g)(2)(B); see, e.g., Sheppard v. River- 
vieiu N ursing Center, 88 F.3d 1332, 1334 (4th Cir. 1996).



7a

with malice or reckless or callous indifference to their 
rights) to recover punitive damages.

H.R. Rep. No. 40(1), 102d Cong., 1st Sess. at 72 (“House 
Report”) (emphasis added).2 Other statements from both 
sides of the legislative aisle indicate that Congress intended 
to establish an egregiousness requirement for punitive dam­
ages as a matter of law. See, e.g., 137 Cong. Rec. S 15473 
(Oct. 30, 1991) (Interp. Memo of Sen. Dole et al.) (punitive 
damages to be available only in “extraordinarily egregious 
cases”); 137 Cong. Rec. S 15479 (Oct. 30, 1991) (statement of 
Sen. Bumpers) (“[Y]ou have to allege and prove intentional, 
malicious, willful discrimination in order to receive [punitive] 
damages under this bill, and certainly that is as it should be. 
It is a heavy burden for plaintiffs.”).

Of course, legislative history is not legislative text, and 
House Reports are not, as the dissent implies, authoritative 
sources for determining what Congress “intended” or “ex­
pected” or “wanted.” Dissent at 8 (citing House Report at 
69-70). Yet it bears mentioning that even among all the 
conflicting and “frankly partisan” congressional statements 
concerning the Civil Rights Act of 1991, see Landgraf, 511 
U.S. at 262 & n.15, we find nothing to support the proposition 
that Congress intended to make punitive damages available 
on the same legal basis as compensatory damages in the 
typical run of Title VII cases.

To be sure, the House Report does say that § 1981a(b)(l) 
“sets the same standard courts have applied under [42 
U.S.C.] section 1981,” a Reconstruction-era civil rights statute 
prohibiting racial discrimination in the making and enforce­

2 This Report accompanied a House version of the 1991 Civil 
Rights Act whose punitive damages provision differed from that of 
the enacted legislation only in being arguably broader. The House 
bill allowed punitive damages to be awarded when the defendant 
engaged in a discriminatory practice “with malice, or with reckless 
or callous indifference to the federally protected rights of others.” 
House Report a t 12 (emphasis added). We have no reason to think 
that the ultimate deletion of the words “or callous” reflected a 
House purpose to expand the scope of punitive liability.



8a

ment of contracts. House Report at 74. See also 137 Cong. 
Rec. H 9527 (Nov. 7, 1991) (Interp. Memo of Rep. Edwards) 
(“Punitive damages are available under [§ 1981a] to the same 
extent and under the same standards that they are available 
to plaintiffs under 42 U.S.C. § 1981”). But a cross-reference 
to § 1981 (a statute that lacks a separate punitive damages 
provision) hardly counts as a firm view on the present ques­
tion, for the circuits are deeply divided as to the proper 
standard for punitive liability under § 1981.

Four courts of appeals have held that egregious misconduct 
beyond mere intent to discriminate is required for punitive 
damages under § 1981—and had done so before enactment of 
§ 1981a. See Stephens v. So. Atlantic Canners, Inc., 848 
F.2d 484, 489 (4th Cir. 1988) (although evidence adequate to 
go to jury on intentional discrimination, and although any 
form of discrimination “constitutes reprehensible and abhor­
rent conduct,” evidence nonetheless inadequate for punitive 
damages); Beauford v. Sisters o f Mercy-Province of Detroit, 
816 F.2d 1104, 1109 (6th Cir. 1987) (stating that punitive 
damages in civil rights actions have “generally been limited to 
cases involving egregious conduct or a showing of willfulness 
or malice on the part of the defendant”); Jackson v. Pool 
Moiigage Co., 868 F.2d 1178, 1182 (10th Cir. 1989) (upholding 
compensatory award, and affirming trial court’s rejection of 
punitive damages in the absence of a showing of defendant’s 
“personal animosity and malice” toward the plaintiff); Wal­
ters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986) 
(finding that there was adequate evidence of intentional dis­
crimination to support jury’s finding of liability under § 1981 
but that defendants had not “acted with either the requisite ill 
will or callous disregard” to justify punitive damages).

Three other circuits have held that a finding of intentional 
discrimination, without more, is enough to put the question of 
punitive damages before the jury in the usual § 1981 case— 
although only two had done so at the time Congress enacted 
§ 1981a. In Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 
205 (1st Cir. 1987), the First Circuit applied to § 1981 a rule 
that “punitive damages are within the jury’s discretion in 
cases requiring proof of intentional wrongdoing.” In Wil-



9a

liamscm v. Handy Button Machine Co., 817 F.2d 1290, 1296 
(7th Cir. 1987), the Seventh Circuit appeared to say that 
punitive damages were available for racial discrimination 
under § 1981 so long as “the application of the law to  the 
facts at hand was so clear at the time of the act that 
reasonably competent people would have agreed on its appli­
cation.” 3 And recently we held that the jury’s (sustainable) 
“finding of intentional racial discrimination permitted it to 
find” the requisite ill will or reckless or callous indifference 
for punitive damages in a § 1981 case. Barbour v. Merrill, 
48 F.3d 1270, 1277 (D.C. Cir. 1995).

In fact, the House Report reflects this circuit split by citing 
two illustrative cases decided under § 1981—one of which, 
Rowlett, 832 F.2d at 205, supports Kolstad’s position, while 
the other, Beauford, 816 F.2d at 1109, supports ADA’s posi­
tion. See House Report at 74. Perhaps the House Report 
could be said to invite each circuit to follow its own view of 
§ 1981 in construing § 1981a, but such an approach seems 
unduly self-referential—and we note that at least two circuits 
have already rejected it. Both the First and the Seventh 
Circuit have endorsed a low threshold for punitive liability 
under § 1981, yet both appear to set a higher standard for

3 The position of the Seventh Circuit on the availability of punitive 
damages under § 1981 is not wholly clear. W illiam son  appears to 
permit automatic imposition of punitive damages with limited allow­
ance for a defendant’s mistake on an obscure issue of law. Howev­
er, in Ram sey v. Am erican A ir  F ilter Co., Inc., 772 F.2d 1303, 1314 
(7th Cir. 1985), the court held tha t “[i]n a section 1981 action, a 
finding of liability for discrimination against a defendant does not 
automatically entitle the prevailing plaintiff to an award of punitive 
damages,” and described the basis for punitive damages in term s of 
“outrageous conduct” and the “defendant’s ill will against the 
plaintiff.” And in Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 
508, 514 (7th Cir. 1986), the court upheld the verdict of intentional 
discrimination, finding the case basically a “swearing contest,” and 
then upheld the award of punitive damages, but only after charac­
terizing it as “a close case.” Unless there was a higher evidentiary 
standard for punitive damages, it is hard to see why that case was 
“close” and the liability issue not.



10a

punitive than for compensatory liability under § 1981a. 
Compare Rowlett, 832 F.2d at 205, with McKinnon v. Kwong 
Wah Restaurant, 83 F.3d 498, 507-09 (1st Cir. 1996); and 
compare Williamson, 817 F.2d at 1296, with Emmel v. Coca- 
Cola Bottling, 95 F.3d 627, 636 (7th Cir. 1996). Those courts’ 
approach to § 1981a seems quite sound; the Report’s indif­
ferent citation to two antithetical opinions cannot reflect a 
focus on their exact meaning.

Significantly, even the cosponsors of § 1981a do not seem 
to have taken an expansive view of the availability of punitive 
damages under § 1981. “Under 42 U.S.C. § 1981, victims of 
intentional racial and ethnic discrimination are entitled not 
only to equitable relief, but also to compensatory damages. 
Further, in  egregious cases, punitive damages may also be 
awarded.” 137 Cong. Rec. S 15483 (Oct. 30, 1991) (Sponsors’ 
Interp. Memo) (emphasis added).

Finally, the House Report also cites the Supreme Court’s 
decision in Smith v. Wade, 461 U.S. 30 (1983); see House 
Report at 74. More specifically, the Report includes a “pin 
cite” to the concluding passage of Smith, 461 U.S. at 56, in 
which the Court announced that “a jury may be permitted to 
assess punitive damages in an action under [42 U.S.C.] § 1983 
when the defendant’s conduct is shown to be motivated by 
evil motive or intent, or when it involves reckless or callous 
indifference to the federally protected rights of others.” That 
Congress ultimately enacted language similar to that em­
ployed in Smith v. Wade is clear; we now turn to the 
implications of that decision for our question.

Kolstad asks us to draw from Smith v. Wade the broad 
principle that the issues of compensatory and punitive liability 
must go to the jury on the same evidentiary standard in civil 
rights cases. But we do not read that decision—much less 
the House Report’s isolated citation to S m ith ’s linguistic 
formula—to go so far. In Smith, an inmate sued a prison 
guard (among others) under 42 U.S.C. § 1983, alleging that 
the guard violated his Eighth Amendment rights by failing to 
protect him from violent physical and sexual abuse. The sole 
dispute was over the proper standard for punitive damages,



11a

and because § 1983 makes no reference to such a remedy, the 
Court looked to common law for the answer. It rejected the 
proposition that “actual malicious intent—‘ill will, spite, or 
intent to injure,’ ” id. at 37, was required for punitive dam­
ages, and held instead, as noted above, that they were 
allowable when the defendant’s conduct was “motivated by 
evil motive or intent, or when it involvefd] reckless or callous 
indifference to the federally protected rights of others.” Id. 
at 56.

The Court in Sm ith  noted at the outset that compensatory 
damages had been assessed at trial on an extremely demand­
ing standard, one which itself incorporated a requirement of 
egregiousness:

In this case, the jury was instructed to apply a high 
standard of constitutional right (“physical abuse of such 
base, inhumane and barbaric proportions as to shock the 
sensibilities”). I t was also instructed, under the principle 
of qualified immunity, that Smith could not be held liable 
at all unless he was guilty of “a callous indifference or a 
thoughtless disregard for the consequences of [his] act or 
failure to act,” or of “a flagrant or remarkably bad failure 
to protect” Wade.

Id. at 50-51. Thus, while the criterion adopted by the Court 
for punitive damages was not egregious in relation to the 
applicable compensatory standard, it clearly was so in relation 
to ordinary tortious conduct. Any of the discriminatory acts 
penalized by § 1981a is deplorable and wrong, but not all rise 
(or sink) to equivalence with “physical abuse of such base, 
inhumane and barbaric proportions as to shock the sensibili­
ties.” Thus the decision in Sm ith  supports rather than 
refutes the idea that some form of egregiousness is essential 
for punitive damages.

In fact, the Court made clear that “deterrence of future 
egregious conduct is a primary purpose . . .  of punitive dam­
ages.” Id. at 49 (emphasis added). It invoked common law 
standards using such terms as “injury . . .  inflicted malicious­
ly or wantonly,” “criminal indifference to civil obligations,” id. 
at 41 (quoting Philadelphia, W. & B. R. Co. v. Quigley, 62



12a

U.S. 202, 214 (1859)), “wilful misconduct,” and “conscious 
indifference to consequences,” id. at 42-43 (quoting Milwau­
kee & St. Paul R. Co. v. Arms, 91 U.S. 489, 495 (1876)). 
Tellingly, the Court drew its formulation of the appropriate 
standard for punitive damages from the Restatement of 
Torts, which says that punitive damages are allowable “for 
conduct that is outrageous, because of the defendant’s evil 
motive or his reckless indifference to the rights of others.” 
Restatement (Second) of Torts § 908(2) (1977) (emphasis 
added). The Sm ith  Court quoted the Restatement’s observa­
tion that punitive damages are awarded “to punish [the 
defendant] for his outrageous conduct and to deter him and 
others like him from similar conduct in the future.” Id. 
§ 908(1) (quoted in Smith, 461 U.S. at 54) (emphasis added). 
The comments to Section 908 add that punitive damages are 
only appropriate where there is “some element of outrage 
similar to that usually found in crime.” Id., comment b. See 
also id., comment d (although award of punitive damages left 
to jury discretion, “[i]t is error . . .  to award punitive dam­
ages if there has been no bad motive or wanton indifference”).

The Court itself has since recognized that even in its 
§ 1983 context the Smith  formula will commonly generate 
two tiers of liability. In a later § 1983 case in which a trial 
court’s instructions had allowed the jury to include an imper­
missible element in calculation of compensatory damages, the 
Court considered whether the award could nonetheless be 
saved by recharacterizing it as punitive damages. Memphis 
Community School Disk v. Stachura, 477 U.S. 299, 306 n.9 
(1986). The Court rejected this view, noting that punitive 
damages “are available only on a showing of the requisite 
intent,” and citing as examples both Sm ith  and the jury 
instructions in the case before it, which “authorized] punitive 
damages for acts ‘maliciously, or wantonly, or oppressively 
done’.” Id.

In short, then, we construe Sm ith  as establishing a thresh­
old requirement of egregiousness for the imposition of puni­
tive damages in § 1983 cases—a requirement which Congress 
transferred largely intact to § 1981a(b)(l). This case does 
not require us to define this requirement with specificity, for



13a

the evidence presented by Kolstad, as we will discuss shortly, 
fails to show egregiousness in any form. We think, however, 
that punitive damages would properly reach the jury where, 
for example, the evidence shows that the defendant engaged 
in a pervasive pattern of discriminatory acts, or manifested 
genuine spite and malevolence,4 or otherwise evinced a “crimi­
nal indifference to civil obligations,” Smith, 461 U.S. at 41 
(quoting Philadelphia, W. & B.R. Co. v. Quigley, 62 U.S. 202, 
214 (1859)).

One might agree with this characterization of egregious­
ness and still contend that the determination of that threshold 
in individual cases has been entrusted by Sm ith—and hence 
derivatively by § 1981a(b)(l) as well—to the jury’s “discre­
tionary moral judgment.” Smith, 461 U.S. at 52. We do not 
think § 1981a(b)(l) upsets the traditional relationship be­
tween court and jury in this fashion. Nor, in fact, do we 
think Sm ith  itself granted unfettered discretion to juries to 
determine whether the minimum requirements for punitive 
damages have been met. The Court in Sm ith  correctly 
pointed out that punitive damages “are never awarded as of 
right, no matter how egregious the defendant’s conduct.” 461 
U.S. at 52. Rather, as the Eighth Circuit recently said in a 
§ 1983 case, “punitive damages are awarded or rejected in a 
particular case at the discretion of the fact finder once 
sufficiently serious misconduct by the defendant is shown.” 
Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir. 1997) (empha­
sis added). The Smith  Court said that the jury retains 
“discretionary moral judgment” over the award of punitive 
damages, but this simply restates the commonplace that the 
jury can choose not to award them even when the evidence is 
sufficient to give it the choice. And indeed, none of the

4 The dissent for some reason equates our use of “malevolence” 
with the statutory term  “malice,” Dissent at 12, but as the Supreme 
Court made clear in Smith, such an equation is far from automatic. 
461 U.S. a t 41 n.8. To the extent that the reference to “malice” does 
mean malevolence, of course, the doctrine of noscitur a sociis— 
which counsels courts to construe statutory term s in harmony with 
the words that accompany them—argues against the dissent’s broad 
reading of “reckless indifference.”



14a

authorities cited in Sm ith  in support of the “discretionary 
moral judgment” proposition goes so far as to deny the 
court’s traditional role in deciding whether a reasonable juror 
could find the defendant’s conduct sufficiently egregious for 
the punitive damages issue to be submitted to the jury in the 
first instance. See, e.g., Chuy v. Philadelphia Eagles Foot­
ball Club, 595 F.2d 1265, 1277-78 n.15 (3d Cir. 1979) (en banc) 
(“Although the underlying conduct must be outrageous to 
sustain liability [for intentional infliction of emotional dis­
tress], the factfinder may conclude, on the record in a particu­
lar case, that exemplary damages would not be warranted.”) 
(emphasis added) (cited in Sm ith v. Wade, 461 U.S. at 52 
n.14).

Lower courts have consequently read Sm ith  as establishing 
a legal standard of egregiousness that must be met before the 
issue of punitive damages may go to the jury in a § 1983 case. 
See, e.g., Coleman, 114 F.3d at 788 (upholding award of 
compensatory damages but finding that the defendant’s “con­
duct in this case was not sufficiently egregious to justify the 
imposition of punitive damages”); Cornell v. Woods, 69 F.3d 
1383, 1391 (8th Cir. 1995) (affirming liability for intentional 
violation of plaintiffs clearly established First Amendment 
rights, but holding that defendants’ conduct, “though certain­
ly not to be commended, did not rise to a level of egregious­
ness sufficient to justify the imposition of punitive damages”); 
Ivey v. Wilson, 832 F.2d 950, 958 (6th Cir. 1987) (citing Smith  
v. Wade in reversing jury award of punitive damages in 
§ 1983 case); Soderbeck v. Burnett County, 752 F.2d 285, 289 
(7th Cir. 1985) (holding that defendant’s politically motivated 
firing of plaintiff was enough to subject him to compensatory 
but not punitive damages); Lavicky v. Burnett, 758 F.2d 468, 
477 (10th Cir. 1985) (affirming judgment of liability for inten­
tional violation of plaintiffs Fourth, Fifth, and Fourteenth 
Amendment rights but holding that “there was no evidence of 
malice, wantonness or oppressiveness to justify punitive dam­
ages”); W ulf v. City o f Wichita, 883 F.2d 842, 867 (10th Cir. 
1989) (affirming § 1983 liability for termination motivated by 
plaintiffs protected speech, but reversing award of punitive 
damages, holding that “not every intentional violation of a



15a

plaintiffs constitutional rights subjects a defendant to puni­
tive damages”).

There was, of course, no separate punitive damages provi­
sion in § 1983 for the Court to interpret in Smith. Our task 
in this case is to construe a comprehensive statutory scheme 
that includes a separate standard for punitive damages. For 
Congress to have enacted the statutory terms of 
§ 1981a(b)(l) merely as guidelines to channel the jury’s oth­
erwise unchecked discretion would be quite a novelty. We 
know of no other statutory provision that functions that way. 
Congress writes laws; we do not casually assume it to have 
done nothing more than draft jury instructions. Indeed, it is 
difficult to imagine where one would look to find standards 
that operate as a matter o f law if not to the laws that 
Congress has duly enacted.

The House Report lends support to this common sense 
view. In speaking of the “even higher standard” the plaintiff 
“must meet” to get punitive damages, the Report appears to 
assume that the legislation will function in the normal way: 
by establishing a legal standard, not simply a verbal formula­
tion to be pondered by juries with no role for the trial court. 
Thus, the Report notes that the § 1981a(b)(l) limitation, 
among others, “serve[s] to check jury discretion in awarding 
such damages.” House Report at 72.

Kolstad contends that our insistence on preserving two 
meaningful tiers of liability across the range of Title VII 
cases is undercut by two Supreme Court opinions, Trans 
World Airlines, Inc. v. Thurston, 469 U.S. I l l  (1985), and 
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), which 
together rejected an egregiousness requirement for “liqui­
dated damages” under the Age Discrimination in Employ­
ment Act. But liquidated damages under the ADEA and 
punitive damages under Title VII are not twins. To begin 
with, the relevant language is different: the ADEA requires 
“willful” conduct, not “malice” or “reckless indifference.” 29 
U.S.C. § 626(b).

Further, under the ADEA liquidated damages are double 
damages; that is, they are always equal in amount to the



16a

compensatory award. See 29 U.S.C. § 216(b). By contrast, 
although the sum of compensatory and punitive damages is 
capped in absolute terms under Title VII, the proportion of 
punitive to compensatory damages is statutorily uncon­
strained. Thus in an individual case the ratio may be astro­
nomical—in principle infinite, if no compensatory damages 
are awarded. It is one thing to award numerically equal 
compensatory and liquidated damages on the basis of the 
same conduct (the concept of double or treble damages for a 
single violation is not an unfamiliar one); it is quite another 
to leverage a compensatory award into a punitive award that 
is ten or a hundred times greater, with no showing of 
heightened culpability.

We turn next to the reading of the statute proposed by the 
dissent, though not by Kolstad—a reading which preserves 
the form of a two-tiered structure but scarcely the substance. 
The argument runs as follows: Punitive damages are avail­
able when the defendant displays reckless indifference to the 
plaintiffs federally protected rights. If the scope or nature 
of a given right is sufficiently obscure, a defendant might 
intentionally discriminate but be merely negligent as to the 
existence of the right. Such a defendant would be subject to 
compensatory but not punitive damages. This approach in 
effect carves out a mistake-of-law defense to punitive liability.

We find it extremely unlikely that Congress meant to 
codify a mistake-of-law defense through § 1981a(b)(l), much 
less that it did so in “plain language,” as the dissent repeated­
ly insists. Dissent at 1, 2, 5, 9. Contrary to the dissent’s 
confident assurances, we find the formulation Congress 
chose—“with malice or with reckless indifference to the fed­
erally protected rights of an aggrieved individual”—to be an 
unusually imprecise and roundabout way of articulating a 
mistake-of-law defense. Of course there is no principle that 
Congress must pick the clearest or most direct expression of 
its standards. But the ornateness of the reasoning needed to 
read the section as giving juries discretion to award punitive 
damages for all knowing violations of Title VII, in relation to 
simplicity of the language Congress might have used to



17a

achieve that result, makes such a reading extremely improba­
ble.5

The improbability only increases when one reflects that the 
class of disparate treatment cases that could escape exposure 
to punitive damages on the dissent’s theory is small, perhaps 
vanishingly so. The prohibition against basing employment 
decisions on sex, race, and other impermissible factors is 
pervasive and well understood, as the dissent itself observes. 
See Dissent at 5 (noting that “the statute and its prohibition 
against discrimination are well known to employers”). In the 
typical intentional discrimination case an employer could not 
plausibly argue that it was merely negligent as to the law’s 
command. Nor do employers often (or advisedly) defend on 
the sincere but mistaken basis that religion, sex, or national 
origin constitutes a bona fide occupational qualification, and 
as a matter of law they may never make such a claim for race. 
See 42 U.S.C. § 2000e~2(e). Indeed, the relative implausibili- 
ty of such “good faith” defenses in the Title VII context 
reveals another feature that distinguishes this case from 
Thurston and Hazen. Given the widespread belief among 
employers that age can sometimes be a bona fide occupational 
qualification—a belief reflected in mandatory retirement pro­
grams—the Supreme Court could reasonably suggest in Haz­
en that its broad reading of “willful” would not frustrate any 
legislative intention to create “two tiers of liability across the

5 The dissent claims to find additional support in a phrase 
snatched from the crossfire in Sm ith  v. Wade between Justices 
Brennan and Rehnquist, namely Justice Brennan’s reference to “the 
defendant’s subjective consciousness of risk . . .  of unlawfulness." 
Dissent a t 2 (quoting Smith, 461 U.S. at 38 n.6 (emphases altered 
by dissent)). The full sentence reads: “Justice Rehnquist consis­
tently confuses, and attem pts to blend together, the quite distinct 
concepts of intent to cause injury, on one hand, and subjective 
consciousness of risk of injuiy (or of unlawfulness) on the other.” 
Smith, 461 U.S. a t 38 n.6. (emphases in original). In short, the 
Court’s treatm ent of consciousness of unlawfulness was, quite liter­
ally, parenthetical.



18a

range of ADEA cases.” 507 U.S. at 616. Such a suggestion 
would be far weaker in relation to religion, sex, or national 
origin discrimination under Title VII and completely out of 
place for the race component. If § 1981a(b)(l) does nothing 
more than establish a narrow mistake-of-law defense, then 
every garden-variety disparate treatment case qualifies for 
both compensatory and punitive damages—a result, as we 
have already said, that seems hard to square with Congress’s 
chosen structure and language.

In its effort to show that its approach would not obliterate 
the difference in standards between compensatory and puni­
tive exposure under Title VII, the dissent places considerable 
emphasis on the scenario involving “an attenuated agency 
relationship” between an employer/defendant and an employ­
ee who intentionally discriminates. Dissent at 7.6 But even 
in such cases the dissent does not argue that its approach 
would produce a meaningful two-tiered system, in which a 
significant fraction of cases would go to the jury on compen­
satory but not punitive damages. Instead, it simply serves 
up another helping of the “discretionary moral judgment” 
argument—predicting that when “the jury focuses on the 
employer’s . . .  awareness of its legal obligation,” id., it may 
be swayed by evidence that the employer has hired Title VII- 
sensitive managers or has provided punctilious equal employ­
ment opportunity training. Perhaps juries would be so 
swayed under the dissent’s approach, but that does not 
answer the question of what legal standard Congress meant 
to establish by enacting § 1981a(b)(l). And as we have 
already noted, any test that makes the difference between 
compensatory and punitive exposure depend on the employ­
er’s awareness of Title VII’s legal mandates is likely to 
produce only a negligible set of cases in which compensatory 
but not punitive damages are available.

6 I t  is unclear ju st why the dissent uses the word “attenuated” to 
characterize the agency relationships on which it focuses. The acts 
the dissent goes on to describe—discriminatory “hiring or firing 
decisions],” Dissent at 7-8—are “company acts” that do not involve 
an unusual degree of attenuation between employer/defendant and 
employee/wrongdoer. These are precisely the sorts of cases in 
which employers’ claims to have misunderstood the extent of their 
legal obligations are least plausible.



19a

Just as important, the dissent never explains why it be­
lieves “[attribution of employee state of mind differs when 
the jury turns to the question of punitive damages.” Dissent 
at 7. In Title VII cases, the defendant is the employer, and 
an employer is liable for “company acts”—hirings, firings, 
promotions, demotions—performed by employees within the 
scope of their employment.7 If those acts amount to inten­
tional discrimination, the employer is subject to compensatory 
damages; if the acts satisfy the requirements of 
§ 1981a(b)(l), the employer is subject to punitive damages. 
There is nothing in the language of § 198ia(b)(l) that would 
derail this standard presumption of respondeat superior for 
company acts—and certainly that provision contains no clear 
textual invitation for courts to explore the “employer s aware­
ness,” Dissent at 8, whatever that indeterminate phrase 
might mean. In short, we fail to see how the dissent s special 
new rule of imputation for punitive damages finds any 
grounding in the statute’s “plain language.”

We note in conclusion that our decision today aligns us with 
all but one of the several circuit courts to address this 
question. See McKinnon v. Kwong Wah RestouTont, 83 F.3d 
498, 508 (1st Cir. 1996) (endorsing concept of a higher stan­
dard for punitive damages under § 1981a, and noting that 
such damages “are awarded as a matter of public policy to 
punish outrageous conduct by the defendant or to deter 
similar conduct in the future”); H a m s v. L & L  Wings, Inc., 
132 F.3d 978, 982 (4th Cir. 1997) (holding that under § 1981a, 
“[pjunitive damages are an extraordinary remedy, to be re­
served for egregious cases,” and “are not an element of 
recovery in every case involving an intentional tort ) (citation 
omitted); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 
1216 (6th Cir. 1996) (despite sufficiency of evidence for liabili­
ty and “duplicitous” actions of defendant’s employees, evi­
dence held insufficient for punitive damages); Emmel v. 
Coca-Cola Bottling, 95 F.3d 627, 636 (7th Cir. 1996) (charac­
terizing standard for punitive damages as a “higher hurdle

7 We need not address the scope of employer liability foi non­
company acts” such as sexual harassment.



20a

than that for proving the underlying discrimination);8 Karch- 
er v. Emerson Electric Co., 94 F.3d 502, 509 (8th Cir. 1996) 
(although jury could properly infer intentional sex discrimina­
tion from inconsistent nature of hiring process and failure to 
select and train women, it could not find malice or deliberate 
indifference); Ngo v. Reno Hilton Resort Corp., 1998 WL 
162166 (9th Cir. Apr. 9, 1998) (requiring “evidence of conduct 
more egregious than intentional discrimination to support an 
award of punitive damages in Title VII eases”); but see 
Luciano v. Olsten Corp., 110 F.3d 210, 219-20 (2d Cir. 1997) 
(finding that no additional evidence is required for punitive 
liability).

The evidence in this case does not show the kind of 
egregious discriminatory conduct necessary for the imposition 
of punitive damages. As the district court noted, 912 
F. Supp. at 14-15, the jury’s finding of discrimination appears 
to have been premised largely if not exclusively upon its 
apparent rejection, as mere pretext, of ADA’s proffered ratio­
nales—that Kolstad’s legislative experience and writing skills 
were inadequate. Whether such a rejection, by itself, is 
enough to support an award of compensatory damages is a 
question for a different en banc proceeding, see Aka v. 
Washington Hospital Center, 116 F.3d 876 (D.C. Cir. 1997), 
vacated pending rehearing en banc, 124 F.3d 1302 (D.C. Cir. 8

8 As with § 1981, the position of the Seventh Circuit on this 
question is not simple to characterize. The E m m el decision com­
ports with the approach we take today, as do Tincher v. W al-M art 
Stores, Inc., 118 F.3d 1125, 1132 (7th Cir. 1997) (holding that 
evidence of egregiousness is required for punitive damages, since 
otherwise “every employment discrimination claim [could] include a 
punitive damage award because every employment discrimination 
plaintiff must demonstrate an intentional unlawful discrimination”), 
and Ortiz v. John O. Butler Co., 94 F.3d 1121, 1126-27 (7th Cir. 
1996) (plaintiff who had already received compensatory damages 
not entitled to punitive damages because employer did not act 
recklessly or maliciously). But M eniw eather v. F am ily Dollar 
Stores o f Indiana, Inc., 103 F.3d 576, 581-82 (7th Cir. 1996), a case 
which arose under both Title VII and § 1981, appeal's to point in 
the opposite direction.



21a

1997), but in this case it falls far short of supplying grounds 
for a punitive award.9

There was substantial evidence to indicate that Spangler 
was pre-selected for the promotion, and that Kolstad was 
never seriously in the running. Evidence of pre-selection 
may of course be “relevant to the question of discriminatory 
intent” insofar as an employer’s departure from its own hiring 
and promotion procedures might suggest that the reasons it 
advances for its actions are pretextual. Krodel v. Young, 748 
F.2d 701, 709 (D.C. Cir. 1984). But pre-selection by itself is 
neither unusual nor illegal, much less egregiously wrongful. 
Indeed, where the selection is to be made from among a 
narrow band of current employees well known to the selec­
tors, it is hard to see how there could not be a substantial 
degree of pre-selection—unless the decision-makers were 
asleep at the switch or the candidates’ track records were 
virtually identical. The dissent lingers over the evidence 
concerning the process by which Spangler was promoted, see

9 Given that a large portion of the dissent is devoted to attacking 
positions that the Court does not adopt, see Dissent at 11-17, we 
take pains here to state expressly what should be evident from a 
straightforward reading of our opinion. While it is true that many 
plaintiffs, like this one, who can offer only weak evidence of 
discrimination will not be able to provide any evidence at all of 
egregious conduct, nothing we say precludes the possibility of 
sparse, but nonetheless adequate, evidence of egregious discrimina­
tion. And our position in no way “amountfs] to little more than a 
requirement of direct ra ther than circumstantial evidence of dis­
crimination as a prerequisite for punitive damages.” Id. a t 13. The 
showing of egregious discrimination necessary for an award of 
punitive damages, like any other element of a plaintiffs case, may 
be made through circumstantial as well as direct evidence. Nor do 
we hold that punitive damages may not be considered in pretext- 
only cases, see id. a t 14-17, though legitimate punitive awards in 
such cases do seem improbable. The reasoning behind this pre­
dictive judgm ent is simple: a plaintiff who can demonstrate that her 
employer engaged in truly outrageous acts of discrimination will 
generally be able to offer some evidence probative of the employer’s 
illicit motivations, ra ther than merely resting on a finding that its 
claimed motivations were unworthy of belief.



22a

Dissent at 15-16, but the only evidence it adduces to show 
ADA’s knowledge of “the impropriety of preselection” is a 
consent decree-expired at the time of the operative events— 
under which ADA undertook not to engage in the practice. 
Id. at 16. It scarcely bears repeating that “a consent decree 
is a form of contract,” Richardson v. Edwards, 127 F.3d 97, 
101 (D.C. Cir. 1997), not a statement of what the law consid­
ers wrongful. Consequently, evidence of pre-selection is rele­
vant only insofar as it logically supports an inference of 
discriminatory intent, i.e., trivially at best. For the same 
reason we reject Kolstad’s fallback position that we should 
remand for a new trial on punitive damages with a direction 
that the trial court admit the consent decree into evidence.

The only evidence that pointed toward gender bias was 
Kolstad’s testimony that Wheat told sexually offensive jokes 
at staff meetings and on occasion used derogatory terms to 
refer to prominent professional women. But Wheat, as men­
tioned above, did not make the decision to promote Spangler 
over Kolstad; Allen did. In any event, sexist remarks, 
tasteless and lamentable though they may be, are “not always 
conclusive of sex discrimination.” Neuren v. Adduct, Mas- 
triani, Meeks & Schill, 43 F.3d 1507, 1513 (D.C. Cir. 1995). 
Wheat’s statements standing alone do not form an adequate 
basis for an award of punitive damages.

The judgment of the district court on the matter of punitive 
damages is

Affirmed.



23a

Randolph, Circuit Judge, concurring: The interpretative 
problem in this case starts with the interplay of the words 
“intentional discrimination,” which suffices for compensatory 
damages, 42 U.S.C. § 1981a(a), and “reckless indifference,” 
which along with the alternative “malice” is a prerequisite for 
punitive damages, id. § 1981a(b)(l). The judicial mind natu­
rally tends to view these words against a legal background, 
here a Supreme Court decision defining “malice” to include 
recklessness, Sm ith v. Wade, 461 U.S. 30, 39 & n.8 (1982); 
and the common legal notion, as expressed in the M odel 
P enal Code § 2.02(5), that “[w]hen recklessness suffices to 
establish an element, such element also is established if a 
person acts purposely or knowingly.” If one fed this data 
into a parsing machine, it would answer—§ 1981a(a)’s stan­
dard for compensatory damages subsumes § 1981a(b)(l)’s 
standard for punitive damages, or whenever there is inten­
tional discrimination there is at least reckless disregard. Yet 
one cannot help wondering why Congress would have enacted 
two separate provisions when one would have sufficed, and 
why all employers liable under § 1981a(a) should be swept 
within § 1981a(b)(l). Those who voted for this legislation 
surely must have believed that they were voting for a two- 
tiered damages system, as the majority opinion describes it. 
If the dissent is nevertheless correct in its interpretation, the 
punitive damages subsection must be the product of a very 
clever draftsman, someone who wanted to convey the appear­
ance of limiting punitive damages to exceptional cases, while 
hoping that courts would draw upon other legal sources to 
find the limitation an illusion. Despite the dissent’s linguistic 
points, the majority opinion convinces me that Congress 
wanted the subsections kept separate, that it intended puni­
tive damages to be reserved for only the worst cases. The 
structure of § 1981a certainly points in that direction, as do 
the historical materials, the policies promoted by punitive 
damages and the other factors skillfully marshalled in the 
majority opinion. Although the matter is exceedingly close, I 
also believe the language of § 1981a(b)(l) will bear the mean­
ing the majority opinion ascribes to it. I therefore concur.



24a

Tatel, Circuit Judge, with whom  E dwards, Chief Judge, 
W ald, R ogers, and Garland, Circuit Judges, join, dissenting: 
A jury found that the American Dental Association (“ADA”) 
intentionally discriminated against Carole Kolstad on the 
basis of sex when it denied her a promotion in favor of a male 
candidate. Under the Civil Rights Act of 1991, 42 U.S.C. 
§ 1981a(b)(l) (1994), victims of intentional employment dis­
crimination who demonstrate that the employer acted “with 
malice or with reckless indifference to [their] federally pro­
tected rights” may recover punitive damages. This court now 
holds that Congress meant to require something more serious 
than intentional discrimination—some undefined quantum of 
egregiousness—before a jury may consider punitive damages. 
Because this amorphous requirement nullifies the plain lan­
guage of section 1981a(b)(l)’s reckless indifference standard, 
and because it conflicts with Supreme Court decisions in 
Sm ith v. Wade, 461 U.S. 30 (1983), and Hazen Paper Co. v. 
Biggins, 507 U.S. 604 (1993), I respectfully dissent. I

I
Asserting that Congress “did not intend to make punitive 

damages automatically available in the standard case of inten­
tional discrimination under Title VII,” Maj. Op. at 5, the court 
declares that the evidence supporting punitive damages “must 
exceed what is needed to show intentional discrimination,” id. 
If Congress had wanted to require something more serious 
than intentional discrimination, however, it would have limited 
section 1981a(b)(l) to “malice,” or it would have written the 
statute to require “malice or egregiousness.” But section 
1981a(b)(l) never mentions egregiousness. Instead, it allows 
the jury to consider punitive damages if the employer acts not 
only with malice, but also with “reckless indifference to . . .  
federally protected rights.” Because this court’s duty is to 
“give effect, if possible, to every clause and word of [the] 
statute,” Bennett v. Spear, 117 S. Ct. 1154, 1166 (1997) 
(internal quotation marks omitted), we may not ignore the 
reckless indifference standard, but must interpret it as writ­
ten by Congress. See National Credit Union Admin, v. 
First N a t’l Bank & Trust Co., 118 S. Ct. 927, 938-40 (1998).



25a

According to its plain language, section 1981a(b)(l)’s “reck­
less indifference” threshold for punitive damages focuses on 
the employer’s awareness of “federally protected rights.” In 
Sm ith v. Wade, from which Congress drew section 
1981a(b)(l)’s language, see H .R. R ep. N o. 102-40, pt. 1, at 74 
(1991) (citing Smith), Justice Brennan’s opinion for the Court 
referred to this inquiry as a measure of the defendant’s 
“subjective consciousness of risk . . .  of unlawfulness.” 
Smith, 461 U.S. at 38 n.6 (emphases altered). As this court 
said in a different context, “ ‘the wrongdoer must consciously 
be aware of his wrongdoing, i.e., the actor must not only 
intend to do the act found to be wrongful, but also must know 
that his conduct is wrongful.’ ” Saba v. Compagnie Natio­
n a l  A ir  France, 78 F.3d 664, 668 (D.C. Cir. 1996) (emphasis 
omitted) (quoting In  re Korean A ir  Lines Disaster o f Sept. 1, 
1983, 704 F. Supp. 1135, 1136 (D.D.C. 1988)).

Although the details of the recklessness standard remain 
open to debate, see Maj. Op. at 6 (citing Saba, 78 F.3d at 668- 
69, and United States v. Krizek, 111 F.3d 934, 941 (D.C. Cir. 
1997)); cf. Farmer v. Brennan, 511 U.S. 825, 836-37 (1994) 
(discussing objective and subjective tests for reckless disre­
gard), its basic contours are well settled; the language of 
section 1981a(b)(l) is not the blank slate that the court seeks 
to make of it. Whether relying on the employer’s mental 
state (Saba) or inferring recklessness from the entire record 
(Krizek), a jury can award punitive damages under section 
1981a(b)(l) if the employer either knew of Title VU’s prohibi­
tions and acted regardless or disregarded a substantial risk of 
violating the statute. Cf. W. P age Keeton et al., P rosser and 
Keeton on the L aw of Torts § 34, at 213 (5th ed. 1984) 
(noting that the “usual meaning” of “reckless” is that “the 
actor has intentionally done an act of an unreasonable charac­
ter in disregard of a known or obvious risk that was so great 
as to make it highly probable that harm would follow”).

The court and concurring opinion reject the statute’s reck­
less indifference standard because they view it, mistakenly in 
my view, as “subsumed” by section 1981a(a)’s liability deter­
mination. When the jury determines liability in a Title VII 
disparate treatment case, it considers only whether the em­



26a

ployer made the challenged employment decision “because o f’ 
the plaintiffs race, color, religion, sex, or national origin. See 
42 U.S.C. § 2000e-2. The employer’s awareness of its legal 
obligations plays no role. In this case, for example, the 
verdict in Kolstad’s favor, a verdict unanimously affirmed by 
the panel and not now before this court, rested solely on the 
jury’s conclusion that ADA denied Kolstad the promotion 
because of her sex. ADA’s liability for punitive damages, by 
comparison, turns on its awareness of its legal obligations: 
When it denied Kolstad the promotion because of sex, did it 
intend to violate Title VII? Did it know of its legal obli­
gations yet recklessly disregard them? Or can reckless 
indifference to federally protected rights be inferred from the 
entire record?

Criticizing this reading of the Act, the court says that “any 
test that makes the difference between compensatory and 
punitive exposure depend on the employer’s awareness of 
Title VII’s legal mandates is likely to produce only a negligi­
ble set of cases in which compensatory but not punitive 
damages are available.” Maj. Op. at 18. Quite apart from its 
entirely speculative nature, this statement disregards the fact 
that section 1981a(b)(l), by focusing specifically on whether 
the employer acted with “reckless indifference . . .  to federal­
ly protected rights,” in fact makes the difference between 
compensatory and punitive damages “depend on the employ­
er’s awareness of Title VII’s legal mandates.”

In addition to appearing nowhere in section 1981a, the 
court’s new egregiousness requirement conflicts with Sm ith v. 
W ade’s holding that “a jury may be permitted to assess 
punitive damages in an action under [42 U.S.C.] § 1983 when 
the defendant’s conduct is shown to be motivated by evil 
motive or intent, or when it involves reckless or callous 
indifference to the federally protected rights of others,” 
Smith, 461 U.S. at 56. Rejecting the notion that punitive 
damages under section 1983 require anything as egregious as 
“actual malicious intent—‘ill will, spite, or intent to injure,’ ” 
Smith, 461 U.S. at 37, the Court noted that the majority 
common law rule recognizes that “punitive damages in tort 
cases may be awarded not only for actual intent to injure or



27a

evil motive, but also for recklessness, serious indifference to 
or disregard for the rights of others, or even gross negli­
gence,” id. at 48. Although citing the Restatement (Second) 
of Torts’ view that punitive damages “punish [the defendant] 
for his outrageous conduct,” R estatement (Second) of T orts 
§ 908(1) (1979), quoted in Smith, 461 U.S. at 54, Sm ith  
actually draws its standard for punitive damages from the 
Restatement’s subsequent explanation that conduct can be 
outrageous “because of the defendant’s evil motive or his 
reckless indifference to the rights o f others,” id. § 908(2) 
(emphasis added), quoted in Smith, 461 U.S. at 46-47.

Sm ith  also rejected the proposition, central to my col­
leagues’ interpretation of section 1981a, that “the threshold 
for punitive damages should always be higher than that for 
liability in the first instance,” Smith, 461 U.S. at 38; see also 
id. at 51-54. According to Smith, the reckless indifference 
threshold for punitive damages “applies even when the under­
lying standard of liability for compensatory damages is one of 
recklessness.” Id. at 56.

The Supreme Court reached the same result under the Age 
Discrimination in Employment Act (“ADEA”), notwithstand­
ing that statute’s “two-tiered scheme of liability,” Maj. Op. at 
6. Interpreting the term “willful” as used in the ADEA, the 
Court held that an employer should be assessed liquidated 
damages, the statute’s equivalent of punitive damages, if it 
“knew or showed reckless disregard for the matter of wheth­
er its conduct was prohibited by the ADEA.” Trans World 
Airlines, Inc. v. Thurston, 469 U.S. I l l ,  126 (1985) (quoting 
A ir Line Pilots A ss’n, In t’l v. Trans World Airlines, Inc., 713 
F.2d 940, 956 (2d Cir. 1983)). Lower courts, concerned that 
the reckless disregard standard “would defeat the two-tiered 
system of liability intended by Congress, because every em­
ployer that engages in informal age discrimination knows or 
recklessly disregards the illegality of its conduct,” Hazen 
Paper, 507 U.S. at 615-16, added just the kind of heightened 
culpability requirement that my colleagues now read into 
section 1981a, see id. at 615 (citing, e.g., LockhaH v. Westing- 
house Credit Corp., 879 F.2d 43, 57-58 (3d Cir. 1989), which 
allowed liquidated damages only if employer’s conduct was



28a

“outrageous”). Flatly rejecting these decisions, Hazen Paper 
holds that “[t]he ADEA does not provide for liquidated 
damages ‘where consistent with the principle of a two-tiered 
liability scheme.’ It provides for liquidated damages where 
the violation was ‘willful.’ .. . Once a ‘willful’ violation has 
been shown, the employee need not additionally demonstrate 
that the employer’s conduct was outrageous.” Id. at 616-17.

Read in light of Sm ith  and Hazen Paper, section 1981a’s 
plain language thus leaves no doubt that juries may consider 
punitive damages on the basis of evidence showing nothing 
more than “reckless indifference to . . .  federally protected 
rights.” Moreover, even though the liability determination 
(Did the employer intentionally take account of sex?) differs 
from the reckless indifference inquiry (When the employer 
intentionally discriminated, was it aware of its legal obli­
gations?), proof of unlawful intentional discrimination can also 
demonstrate reckless indifference to federally protected 
rights. Considering that Congress passed the Civil Rights 
Act over three decades ago, that the statute and its prohibi­
tion against discrimination are well known to employers, that 
many companies have instituted Title VII compliance pro­
grams, and that an industry of equal employment opportunity 
consultants and attorneys is readily available to employers in 
need of assistance, a jury could reasonably conclude that an 
employer nevertheless refusing to hire or promote a woman 
because of sex is worthy of punishment.

This does not mean, as the court fears, that juries will 
automatically award punitive damages in every Title VII 
disparate treatment case. Punitive damages “are never 
awarded as of right, no matter how egregious the defendant’s 
conduct.” Smith, 461 U.S. at 52. If a jury believes that an 
employer has acted maliciously or with reckless indifference 
to a plaintiffs federally protected rights, it then decides 
whether to punish the defendant, a determination the law 
leaves to the jury’s “discretionary moral judgment.” Id. 
Although a jury exercising its moral discretion might con­
clude that an employer recklessly indifferent to federally 
protected rights deserves punishment, a jury could also reach 
the opposite conclusion, that because of extenuating circum­



29a

stances—e.g., the employer had no history of discrimination, 
showed remorse, or had already taken steps to rectify the 
injury—the employer should not have to pay punitive dam­
ages.

Because liability and punitive damages require distinct 
inquiries, moreover, employers found to have intentionally 
discriminated in employment in violation of federal law may 
introduce evidence to demonstrate that they did everything 
they could to comply with the law and were therefore not 
recklessly indifferent to their legal obligations. In Trans 
World Airlines, Inc. v. Thurston, for example, the Supreme 
Court held that employers who intentionally violate the 
ADEA may nevertheless avoid liquidated damages by demon­
strating that they attempted “reasonably and in good faith” to 
comply with the law. Thurston, 469 U.S. at 129. Although 
finding that TWA’s mandatory retirement policy violated the 
Act, the Court denied plaintiffs liquidated damages because, 
by seeking legal advice and consulting with the union, TWA 
demonstrated that it had not acted in “ ‘reckless disregard’ of 
the requirements of the ADEA.” Id. at 130. Cf, e.g., Harris 
v . L & L  Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (noting 
“that the institution of a written sexual harassment policy 
goes a long way towards dispelling any claim about the 
employer’s ‘reckless’ or ‘malicious’ state of mind”).

For similar reasons, employers found to have intentionally 
discriminated in violation of Title VII may be able to per­
suade a jury that they had acted without reckless indiffer­
ence; employers may even be able to convince a judge to 
remove the question of punitive damages from jury consider­
ation altogether. For example, evidence that an employer 
erroneously used religion, sex, or national origin as a “bona 
fide occupational qualification” for employment, see 42 U.S.C. 
§ 2000e-2(e), or overreached in a good-faith effort to remedy 
the effects of past discrimination, could demonstrate that the 
employer acted without reckless indifference to its legal 
obligations. Punitive damages might be equally inappropri­
ate where liability rests on a novel legal theory. See, e.g., 
Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1216 (6th 
Cir. 1996) (denying punitive damages although holding em­



30a

ployer liable for dismissing female employee who had contem­
plated an abortion, an entirely novel theory of liability); see 
also Hemandez-Tirado v. Artau, 874 F.2d 866, 870 (1st Cir. 
1989) (although intentionally violating the F irst Amendment 
in a politically motivated employment decision, defendant was 
only “negligent [as] to the existence of a federally protected 
right”).

Evidence sufficient to prove liability may also fall short of 
establishing an employer’s reckless indifference to its legal 
obligations where the employer’s liability arises from an 
attenuated agency relationship with an employee found to 
have committed an intentional act of discrimination. Because 
employers are responsible for injuries caused by employees 
acting within the scope of employment, juries considering 
liability in traditional Title VII cases attribute employees’ 
intentional use of race or sex to the employer. See M entor 
Savings Bank, FSB v. Vinson, 477 U.S. 57, 75 (1986) (Mar­
shall, J., concurring in judgment) (in the typical Title VII case 
“when a supervisor discriminatorily fires or refuses to pro­
mote a black employee, that act is, without more, considered 
the act of the employer”); see also Restatement (Second) of 
Agency § 219 (1958) (“A master is subject to liability for the 
torts of his servants committed while acting in the scope of 
their employment.”). Attribution of employee state of mind 
differs when the jury turns to the question of punitive dam­
ages. Because punitive damages are intended not to compen­
sate the victim, but rather to punish employers for the 
discriminatory acts of employees, cf. Smith, 461 U.S. at 54 (in 
the punitive damages inquiry, “[t]he focus is on the character 
of the tortfeasor’s conduct—whether it is of the sort that calls 
for deterrence and punishment over and above that provided 
by compensatory awards”), the jury focuses on the employ­
er’s, not the employee’s, awareness of its legal obligations. 
Obviously, if the person discriminating is the same as the 
employer—in a sole proprietorship, for example—there is no 
difference between the employer’s awareness of its legal 
obligations and the employee’s. But where a gap exists in 
the agency relationship between the agent and the entity 
being held liable, i.e., where the employee making the hiring



31a

or firing decision does not constitute the employer’s entire 
decision-making apparatus, the punitive damages inquiry re­
quires the jury to examine the em ployer’s awareness of the 
law. An employer could thus argue that even though it had 
been found liable for the discriminatory acts of an employee 
and ordered to pay compensatory damages to the victim, it 
should not have to pay punitive damages because it had 
undertaken good-faith efforts to comply with Title VII—for 
example, by hiring staff and managers sensitive to Title VII 
responsibilities, by requiring effective EEO training, or by 
developing and using objective hiring and promotion stan­
dards—thereby demonstrating that it never acted in reckless 
disregard of federally protected rights.

This interpretation of section 1981a sets up exactly the 
incentives Congress intended. While Congress expected vic­
tims of intentional discrimination to be compensated for their 
losses, it also wanted to motivate employers to detect and 
deter Title VII violations. See H.R. R ep. No. 102-40, pt. 1, at 
69-70 (recounting testimony encouraging employers to design 
and implement effective structures to combat discrimination). 
Giving punitive damages protection to employers who make 
good-faith efforts to prevent discrimination in the workplace 
accomplishes just this purpose. Employers making no such 
efforts will not only have to compensate victims, but may be 
punished for their reckless indifference to federal law.

Applying section 1981a(b)(l)’s reckless indifference stan­
dard to the facts of this case, I believe the district court 
should have allowed the jury to consider punitive damages. 
Found to have intentionally discriminated against Kolstad, 
ADA never argued that it made good-faith efforts to comply 
with the law; the case involves no novel issues of Title VII 
liability; and the decision to deny Kolstad the promotion was 
made not by a low-level employee, but by ADA’s executive 
director. Under these circumstances, the jury should have 
been allowed to consider whether in denying Kolstad a pro­
motion because of her sex ADA acted with reckless indiffer­
ence to her federally protected rights.



32a

The court spends most of its opinion straggling to avoid the 
plain language of section 1981a and the holdings of Sm ith  and 
Hazen Paper. It begins by detecting an egregiousness stan­
dard in section 1981a’s legislative history. Contentious and 
partisan, see Landgraf v. USI Film  Prods., 511 U.S. 244, 262 
(1994), the Act’s legislative history actually manifests contra­
dictory signals regarding congressional intent about punitive 
damages. As the court acknowledges, see Maj. Op. at 9, the 
House Report it relies on for a “heightened” standard cites 
two irreconcilable section 1981 cases—Beauford v. Sisters of 
Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1109 (6th Cir. 
1987), limiting punitive damages to “egregious” cases, and 
Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205-06 (1st 
Cir. 1987), holding that plaintiffs need prove nothing beyond 
intentional discrimination for juries to consider punitive dam­
ages. The court’s egregiousness standard comports with 
Beauford. My interpretation of section 1981a comports with 
Rowlett. Given the clarity of section 1981a’s text, we should 
follow the statute rather than selective bits of its confused 
legislative history.

Next, appearing to concede that Congress drew the lan­
guage of section 1981a(b)(l) from Smith, see Maj. Op. at 10, 
the court then reads Smith  to require proof of egregiousness 
for punitive damages, see id. at 12. Even if recklessly 
violating the Eighth Amendment is somehow more egregious 
than intentionally discriminating in employment on the basis 
of sex or race in violation of federal law, see id. at 11, it does 
not follow that because liability in Sm ith  required “base, 
inhumane and barbaric” action, Smith, 461 U.S. at 32, the 
standard for punitive damages must always include “some 
form of egregiousness,” Maj. Op. at 11. Like the rest of the 
court’s opinion, its reliance on Sm ith’s underlying standard 
for liability rests on its failure to acknowledge that the 
punitive damages inquiry depends not on the seriousness of 
the behavior giving rise to liability, but on the defendant’s 
awareness of its legal obligations. Both “base, inhumane and 
barbaric” acts (Eighth Amendment) and intentional discrimi­



33a

nation in employment (Title VII) can be committed with 
“reckless indifference to . . .  federally protected rights.”

The court relies on Memphis Community School District v. 
Stachura, 477 U.S. 299 (1986), but nothing in that case casts 
doubt on Sm ith’s holding that proof of reckless indifference 
suffices for punitive damages. Noting in dicta that punitive 
damages are available on a showing of “requisite intent,” id. 
at 306 n.9, Stachura drew the “maliciously, or wantonly, or 
oppressively done” standard not from Smith, but from the 
jury instruction under review in that case, see id. Moreover, 
while our sister circuits have split over the meaning of Smith, 
compare Maj. Op. at 14-15 (collecting cases reading Sm ith  to 
require egregiousness), with, e.g., Savarese v. Agriss, 883 
F.2d 1194, 1203-04 (3d Cir. 1989) (rejecting heightened culpa­
bility requirement under Smith); Melear v. Spears, 862 F.2d 
1177, 1187 (5th Cir. 1989) (applying Sm ith’s reckless indiffer­
ence standard without proof of egregiousness), we have con­
sistently read Sm ith’s reckless indifference standard without 
adding an egregiousness requirement, see, e.g., Samaritan  
Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1239 (D.C. 
Cir. 1997) (applying Sm ith  to the Fair Housing Act); Barb­
our v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) (applying 
Sm ith  to section 1981).

My colleagues make two unpersuasive attempts to distin­
guish Hazen Papers clear rejection of their “two-tiers” ratio­
nale. Asserting first that the ADEA’s “willful” standard has 
no bearing on the “malice” or “reckless indifference” required 
under section 1981a(b)(l), Maj. Op. at 15, the court ignores 
Thurston’s holding that “willful” conduct includes “reckless 
disregard,” a term courts use interchangeably with “reckless 
indifference,” see, e.g., Williams v. Borough o f West Chester, 
891 F.2d 458, 464 n.10 (3d Cir. 1989).

Second, the court points out that unlike the double dam­
ages authorized by the liquidated damages provision of the 
ADEA, the ratio between compensatory and punitive dam­
ages under Title VII is potentially unlimited. Maj. Op. at 15- 
16. This observation is interesting, but Congress chose to 
deal with the risk of disproportionate punitive damages



34a

awards under Title VII by preserving judges’ traditional 
oversight of jury discretion. See H.R. R ep. N o. 102-40, pt. 1, 
at 72 (“Judges serve as an additional check: they can and do 
reduce awards which are disproportionate to the defendant’s 
discriminatory conduct or the plaintiffs resulting loss.”). I 
have no doubt that district courts—and if necessary, circuit 
courts—have all the authority they need to correct dispropor­
tionate awards, particularly an “infinite[lyj” disproportionate 
award, Maj. Op. at 16, should one ever occur. Equally 
significant, when enacting the Civil Rights Act of 1991, Con­
gress carefully limited punitive damages in other ways. It 
capped total damages at between $50,000 and $300,000 de­
pending on the employer’s size, 42 U.S.C. § 1981a(b)(3), and 
barred punitive damages altogether in disparate impact cases, 
see id. § 1981a(a)(l), in mixed motive cases, see id. 
§ 2000e—5(g)(2), and against governmental defendants, see id. 
§ 1981a(b)(l). Because Congress itself carefully cabined pu­
nitive damages, it is particularly inappropriate for this court 
to add a limitation not found in the language of the statute. 
“Courts may not create their own limitations on legislation, 
no matter how alluring the policy arguments for doing 
s o . . . . ” Brogan v. United States, 118 S. Ct. 805, 811-12 
(1998).

I ll
Not only does the court’s egregiousness standard conflict 

with the language of section 1981a and with Smith  and Hazen 
Paper, but my colleagues offer no clear definition of the term, 
shifting from one interpretation to another and leaving dis­
trict courts little guidance.

Egregiousness as a Measure o f the Seriousness 
o f the Discrimination

Initially, the court equates egregiousness with the serious­
ness of the underlying discrimination. See Maj. Op. at 2, 5. 
But unlike reckless indifference, or even malice, which also 
focuses on an employer’s state of mind, see, e.g., Dellums v. 
Powell, 660 F.2d 802, 808 (D.C. Cir. 1981) (noting that malice 
is a subjective inquiry), the jury considers the seriousness of



35a

the underlying intentional discrimination in setting compensa­
tory damages; the more egregious the harm, the greater the 
compensation awarded. Of course, the egregiousness of the 
violation can relate to the punitive damages inquiry in the 
sense that egregious discrimination can be probative of mal­
ice or reckless indifference. To consider egregiousness in 
awarding punitive damages, however, the jury must make an 
inference not required at the liability stage: that the egre­
giousness of the discrimination suggests malice or reckless in­
difference to federally protected rights.

The court’s effort to define egregiousness as a measure of 
the severity of discrimination suffers from several other 
defects. At one point, for example, the court defines egre­
giousness as “a pervasive pattern of discriminatory acts.” 
Maj. Op. at 13. Not only does the court provide no support 
for this new standard, but exposing only those employers to 
punitive damages who commit multiple acts of discrimination 
essentially allows employers to engage in a single act of 
invidious discrimination without fear of punitive damages.

Offering still another definition, again without citation, the 
court says that egregiousness might be demonstrated by an 
employer’s “genuine spite and malevolence.” Id. Not con­
tent to read the reckless indifference standard out of the 
statute, the court here tinkers with section 1981 a’s other 
punitive damages test, suggesting that it requires not just 
“malice,” but some kind of “genuine” malice, whatever that 
means.

Under any of these iterations of egregiousness-as-a- 
measure-of-seriousness, it is entirely unclear how district 
judges will determine when intentional discrimination is suffi­
ciently non-egregious to take the issue from the jury. Never 
offering a clear answer, the court leaves it to district courts to 
decide for themselves whether an employer’s conduct is wor­
thy of punishment, thus allowing judges to usurp the jury’s 
exercise of moral judgment.

Egregiousness as a M easure o f the P la in tiffs  Evidence
Applying its egregiousness standard to the facts of this 

case, see id. at 20-22, the court shifts from using egregious­



36a

ness as a reflection of the seriousness of the discrimination to 
a measure of the strength of Kolstad’s proof. According to 
the court, the “only evidence that pointed toward gender bias 
was Kolstad’s testimony that Wheat told sexually offensive 
jokes at staff meetings and on occasion used derogatory 
terms to refer to prominent professional women.” Id. at 22. 
“Wheat’s statements standing alone,” the court says, “do not 
form an adequate basis for an award of punitive damages.” 
Id.

Amounting to little more than a requirement of direct 
rather than circumstantial evidence of discrimination as a 
prerequisite for punitive damages, the court’s approach con­
flicts with Hazen Paper, 507 U.S. at 615 (rejecting require­
ment of Neufeld v. Searle Laboratories, 884 F.2d 335, 340 
(8th Cir. 1989), that underlying evidence of liability be direct 
before allowing liquidated damages). It also conflicts with 
this circuit’s case law holding that at least with respect to 
proof of liability, circumstantial evidence can be as probative 
as direct evidence. See, e.g., Crawford-El v. Britton, 93 F.3d 
813, 818 (D.C. Cir. 1996) (en banc) (Williams, J.) (“[T]he 
distinction between direct and circumstantial evidence has no 
direct correlation with the strength of [a] plaintiffs case.”), 
rev’d on other grounds, No. 96-827, 1998 WL 213193 (U.S. 
May 4, 1998); cf. Thomas v. National Football League Play­
ers A ss’n, 131 F.3d 198, 204 (D.C. Cir. 1997) (“ ‘[DJirecf 
evidence [in the Title VII mixed motive context] may be 
circumstantial in nature, so long as it establishes that discrim­
inatory motive played a substantial role in the employment 
decision.”). I see no reason why the same rule should not 
apply to proof of punitive damages, particularly since the 
presence or absence of direct evidence of intent is not neces­
sarily an accurate measure of blameworthiness. Why, for 
example, is an employer who leaves behind clear evidence of 
its intentional, discriminatory refusal to promote one wom­
an—“these are jobs for men”—more worthy of punishment 
than an employer who subtly, but equally intentionally, re­
fuses to promote an entire class of women? Under the 
court’s direct evidence rule, employers who effectively cover 
up evidence of their discriminatory intent will escape punitive



37a

damages no matter how egregious their discrimination. Con­
gress, acting to strengthen Title VII in the Civil Rights Act of 
1991, could not have intended such a nonsensical result.

Egregiousness as a Requirement 
o f More than Mere Pretext

Acknowledging that we are considering the question of 
whether rejection of a proffered nondiseriminatory rationale 
by itself can support a finding of intentional discrimination in 
a different en banc case, see Maj. Op. at 20 (citing Aka v. 
Washington Hosp. Ctr., 116 F.3d 876 (D.C. Cir.), judgment 
vacated pending reh’g en banc, 124 F.3d 1302, 1302 (D.C. Cir. 
1997)), the court says that in this case such evidence “falls far 
short of supplying grounds for a punitive award,” id. at 21. 
Although punitive damage awards in pretext-only cases may 
be “improbable,” id. at 21 n.9, the court’s premise is entirely 
unsupported by the record. Properly reviewed, the evidence 
in this case demonstrates that the jury’s verdict could have 
rested on much more than rejection of the employer’s prof­
fered nondiseriminatory justification. This court’s job is not 
to weigh the evidence, as my colleagues seem to have done, 
but to view the evidence “in the light most favorable” to 
Kolstad, giving her “the benefit of every fair and reasonable 
inference,” Anderson v. Group Hospitalization, Inc., 820 F.2d 
465, 471 (D.C. Cir. 1987). Viewed this way, the jury could 
have based its finding of liability—again, a finding of inten­
tional discrimination affirmed unanimously by the panel—on 
much more than “rejection, as mere pretext, of ADA’s prof­
fered rationales,” Maj. Op. at 20.

To begin with, the record contains evidence from which the 
jury could have concluded that Kolstad was the more quali­
fied of the two candidates. A lawyer, Kolstad worked for six 
years as the principal legislative draftsperson for the Depart­
ment of Defense, preparing testimony for congressional hear­
ings and representing the Department’s interests on Capitol 
Hill. Employed for four years at ADA when the position 
opened, Kolstad served as Director of Federal Agency Rela­
tions, handling the entire range of regulatory issues of con­



38a

cern to ADA. She consistently received “distinguished” per­
formance evaluations from the Director of ADA’s Washington 
office. By contrast, Tom Spangler, the male candidate who 
got the promotion, began working for ADA only a year and a 
half before the position opened, technically failed to meet the 
minimum posted requirements for the position, and received 
negative comments about his wilting ability, a skill ADA 
highlighted at trial as central to the position.

Although the court describes what it perceives to have been 
a benign, routine selection process, the record contains evi­
dence from which the jury could have concluded that because 
ADA preselected Spangler for the position, the selection 
process was a sham. Before ADA posted the opening, Span­
gler met frequently with the incumbent (Jack O’Donnell), 
ADA did not post the position promptly after O’Donnell 
decided to retire, and a secretary familiar with the process 
testified that she thought Spangler was being groomed for 
the job. Leonard Wheat, head of ADA’s Washington office 
and the person most closely supervising the competing candi­
dates, refused to meet with Kolstad to discuss O’Donnell’s 
position, despite frequently meeting with Spangler. Although 
Executive Director Dr. William Allen formally appointed 
O’Donnell’s successor, Allen—based in ADA’s Chicago head­
quarters—relied heavily upon Wheat’s recommendation of 
Spangler. Assigning all legislative work to Spangler, Wheat 
repeatedly refused Kolstad’s requests to work on legislative 
matters, despite their relevance to the regulatory issues she 
covered and her experience in the field. Formally interview­
ing Spangler but not Kolstad, Allen failed to review Kolstad’s 
numerous, detailed, positive performance evaluations.

The record also contains evidence, equally minimized by 
the court, from which the jury could have concluded that 
ADA attempted to cover up Spangler’s preselection. Compil­
ing a description of O’Donnell’s position a few days before 
posting the job, Allen edited the description to fit Spangler’s 
qualifications. O’Donnell’s position description originally 
stated that its “most important responsibility” was to “[m]ain- 
tain liaison with federal agencies, bureaus and Administra­
tion,” corresponding directly to Kolstad’s work at ADA. Tai­



39a

loring the job description to Spangler’s specialty, Allen added 
“Congress” before “federal agencies,” and also added whole 
phrases from the position description questionnaire used to 
hire Spangler. As Kolstad argued, the jury could have 
believed that ADA, in an effort to bolster its claim that 
Spangler was more qualified, altered documents to justify his 
promotion.

Kolstad proffered a 1984 consent decree settling a class 
action suit brought against ADA by female employees under 
Title VII and the Equal Pay Act. Resnick v. American 
Dental A ss’n, No. 79-C-3785 (N.D. 111.). Denying wrongdo­
ing and expiring prior to the decision not to promote Kolstad, 
the decree showed that ADA had specific knowledge of the 
impropriety of preselection, as well as of the connection 
between preselection and employment discrimination. The 
decree stated that “pre-selection of a favored candidate is 
contrary to ADA’s firm policy of giving full and fair consider­
ation to each application. Violations of this policy will have 
an adverse impact on an employee’s annual merit review and 
will be cause for discipline.” The district court refused to 
admit the decree to prove liability, but the panel stated in a 
portion of the opinion not before us that the district court 
could admit the decree in a trial on punitive damages. See 
Kolstad v. American Dental A ss’n, 108 F.3d 1431, 1439 (D.C. 
Cir. 1997).

From the evidence, the jury also could have found that 
ADA changed its explanation for rejecting Kolstad. After 
telling her that she was passed over because she lacked 
experience with health care reform and was too valuable in 
her position, ADA abandoned that justification at trial, in­
stead attacking Kolstad’s general qualifications and writing 
ability. My colleagues ignore this testimony, but the jury 
was entitled to consider it as evidence of ADA’s falsehood, 
and therefore of its discrimination. See St. M ary’s Honor 
Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s 
disbelief of the reasons put forward by the defendant (partic­
ularly i f  disbelief is accompanied by a suspicion o f mendaci­
ty) may, together with the elements of the prima facie case, 
suffice to show intentional discrimination.”) (emphasis added).



40a

The record also contains evidence from which the jury 
could have concluded that Wheat, Kolstad’s supervisor whose 
advice Allen relied on in deciding to promote Spangler instead 
of Kolstad, told sexually offensive jokes at the office and 
referred to professional women as “bitches” and “battleaxes.” 
Although this testimony may have been “contested” (the 
panel’s word) or even “hotly contested,” (the court’s words), 
nothing in the record indicates that the testimony lacked 
sufficient credibility for the jury to believe it.

In addition to weighing the evidence instead of viewing it 
from a reasonable juror’s perspective, my colleagues isolate 
each element of Kolstad’s case, diminishing the cumulative 
significance of her proof. Of course, preselection “by itself,” 
Maj. Op. at 21, violates no law, and “sexist remarks . . .  are 
‘not always conclusive of sex discrimination,’ ” id. at 22 (quot­
ing Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 
1507, 1513 (D.C. Cir. 1995)). As in even the most compelling 
cases of discrimination, any aspect of Kolstad’s case taken in 
isolation might seem minimal. Considering her evidence 
together, as this court must, see, e.g., Downes v. Volkswagen 
of America, Inc., 41 F.3d 1132, 1140 (7th Cir. 1994), and 
reviewing it “in the light most favorable” to Kolstad, giving 
her “the benefit of every fair and reasonable inference,” 
Anderson, 820 F.2d at 471, the jury could have concluded that 
this record contains substantial circumstantial, perhaps even 
direct, evidence of invidious, intentional, unlawful discrimina­
tion that society no longer tolerates. Therefore, even if 
punitive damages are “improbable” in a case where the 
verdict rests on no more than the jury’s rejection of the 
employer’s nondiscriminatory rationale, this is not that case. IV

IV

Because this court has found that the record contains 
sufficient evidence to support the jury’s finding of intentional 
discrimination on the basis of sex, and because ADA never 
attempted to justify its use of sex in the promotion decision,



41a

never disavowed the actions of its agents (Wheat and Allen), 
never offered evidence that it had taken any specific steps to 
comply with Title VII, and never otherwise demonstrated 
that in intentionally discriminating against Kolstad, it had not 
acted with reckless indifference to her federally protected 
rights, I would remand for a trial on punitive damages.



42a

APPENDIX B

Unite!) States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 1996 Decided March 21, 1997

No, 96-7030

Carole K olstad, 
Appellant/C ross-Appellee

V.

American D ental Association, 
Appellee/C ross-Appellant

Consolidated with 
96-7047

Appeals from the United States District Court 
for the District of Columbia 

(No. 94cv01578)

Joseph A  Yablonski argued the cause and filed the briefs 
for appellant/cross-appellee.

Bills of costs must be filed within 14 days after entry of judgment. 
The court looks with disfavor upon motions to file bills of costs out 
of time.



43a

Bruce S. Harrison argued the cause for appellee/cross- 
appellant. With him on the briefs was Elizabeth Torphy- 
Donzella.

Before: Wald, W illiams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel,
Opinion concurring in part and dissenting in part filed by 

Circuit Judge W illiams.

Tatel, Circuit Judge: A jury awarded Carole Kolstad back 
pay after finding that her employer had violated her rights 
under Title VII of the 1964 Civil Rights Act by denying her a 
promotion because she is a woman. The district court en­
tered judgment against the employer in the amount of the 
jury award, but denied Kolstad further relief. Because the 
jury could reasonably find from the evidence that Kolstad’s 
employer intentionally discriminated against her on the basis 
of sex, we hold that the district court properly denied the 
employer’s motion for judgment as a matter of law, but that it 
erred in refusing to instruct the jury on punitive damages. 
We thus remand the case for trial on Kolstad’s punitive 
damages claim and for reconsideration of her claims for 
further equitable relief and attorney’s fees.

I
A Chicago-based professional association, appellee and 

cross-appellant, the American Dental Association (ADA), 
maintains an office in Washington, D.C. to represent its 
members’ interests before Congress and various federal agen­
cies. In September 1992, Jack O’Donnell, the second-highest 
ranking employee in ADA’s Washington office, announced his 
retirement at year’s end. O’Donnell held the dual-titled 
position of Director of Legislation and Legislative Policy and 
Director of the Council on Government Affairs and Federal 
Dental Services. His responsibilities included developing and 
communicating ADA’s positions on federal legislation and 
regulations affecting its membership, and managing tri­
annual meetings of the Council on Governmental Affairs, a 
policy-making body composed of ADA members.



44a

Upon learning of O’Donnell’s retirement, appellant Carole 
Kolstad, then serving as ADA’s Director of Federal Agency- 
Relations, and Tom Spangler, then ADA’s Legislative Coun­
sel, each expressed interest in O’Donnell’s job. A lawyer, 
Kolstad had handled federal regulatory issues at ADA for 
four years, consistently receiving “distinguished” performance 
evaluations from the Director of ADA’s Washington office, a 
position held in 1992 by Leonard Wheat. Earlier in her 
career, Kolstad had spent six years in the General Counsel’s 
office of the Department of Defense, where she drafted 
proposed legislation, prepared testimony for Congressional 
hearings, and represented the Department’s interests on 
Capitol Hill. Also a lawyer, Spangler had worked at ADA for 
twenty months, focusing on legislative issues facing the orga­
nization. He too had received “distinguished” performance 
evaluations from Wheat. Prior to joining ADA, Spangler had 
spent five years lobbying Congress on behalf of the National 
Treasury Employees Union. Kolstad and Spangler each had 
experience working with O’Donnell, with Spangler principally 
supporting his lobbying efforts and Kolstad, his management 
of the Council.

Although Wheat had the authority to name O’Donnell’s 
replacement, he asked Dr. William Allen, ADA’s Executive 
Director in Chicago, to make the appointment. After consult­
ing with Wheat, Allen drafted a revised “Position Description 
Questionnaire” for O’Donnell’s job that incorporated verbatim 
many of the job responsibilities recorded on the Position 
Description Questionnaire that had been used to hire Span­
gler for the Legislative Counsel position in 1991. In October 
1992, three months before O’Donnell’s retirement, Wheat 
signed a performance evaluation of Spangler that listed as 
one of Spangler’s 1993 goals to “provide management and 
administrative support . . .  for the Council on Government 
Affairs,” work that O’Donnell was then performing.

Spangler formally applied for O’Donnell’s position once 
posted in mid-November 1992. After writing Allen that 
Wheat had refused for several weeks to meet with her to 
discuss her interest in the position, Kolstad also applied. 
Following interviews with both Spangler and Kolstad, Wheat



45a

recommended Spangler for the job. Allen then offered Span­
gler the promotion, which he accepted. Informing Kolstad of 
the decision, Allen explained that she lacked experience with 
health care reform and was too valuable to ADA in her 
current position to take on O’Donnell’s job.

After exhausting her administrative remedies before the 
Equal Employment Opportunity Commission, Kolstad filed 
suit, charging ADA with unlawful employment discrimination 
and seeking equitable relief, 42 U.S.C. § 2000e-5(g)(l), and 
damages, 42 U.S.C. § 1981a (1994). In her complaint, Kol­
stad demanded a jury trial on all claims. Prior to opening 
arguments at trial, Kolstad informed the district court that 
the parties had agreed to try her claims for equitable relief to 
the court, with the jury rendering an advisory verdict on back 
pay pursuant to Federal Rule of Civil Procedure 39(c). The 
court agreed to try to the bench Kolstad’s claim for the 
equitable remedy of instatement, but declined to rule on 
whether the jury would render an advisory verdict on the 
back pay claim. Kolstad proceeded to try her case to the 
jury, introducing evidence to support an award of back pay. 
At the close of evidence, the district court denied ADA’s 
motion for judgment as a matter of law, but dismissed 
Kolstad’s claims for compensatory and punitive damages, 
finding insufficient evidence to support them. With respect 
to back pay, the court stated, “I am going to put it to the jury 
and we can leave until after the fact whether it’s advisory or 
binding.”

Answering two special interrogatories, one on liability and 
the other on “damages,” the jury found that ADA had unlaw­
fully discriminated against Kolstad on the basis of sex, award­
ing her $52,718, precisely the amount she sought as back pay. 
Kolstad then moved for instatement into the position occupied 
by Spangler and for attorney’s fees. ADA renewed its mo­
tion for judgment as a matter of law. In a memorandum 
opinion, the district court denied both motions. K olstad v. 
A m erican D ental A s s ’n, 912 F. Supp. 13 (D.D.C. 1996). 
After concluding that the jury could properly find unlawful 
discrimination from the evidence, and that the jury’s award of



46a

back pay was “conclusive” under Rule 39(c), the court held 
that Kolstad was not entitled to further equitable relief or 
attorney’s fees because she had failed to prove “to the Court’s 
satisfaction” that she was a victim of sex discrimination. Id. 
at 14 n.l, 15-16. The court entered judgment against ADA in 
the amount of the jury award.

On appeal, Kolstad challenges the district court’s refusal to 
allow the jury to consider an award of punitive damages, as 
well as the court’s denial of her claims for instatement into 
the Director’s job and attorney’s fees. ADA cross-appeals 
the court’s denial of its motion for judgment as a matter of 
law and the court’s ruling that the jury’s verdict was binding.

II
We begin with ADA’s challenge to the district court’s denial 

of its motion for judgment as a matter of law. Reviewing the 
district court’s ruling de novo, we ask whether the evidence 
was sufficient for a reasonable jury to have reached the 
challenged verdict. M ackey v. U nited States, 8 F.3d 826, 829 
(D.C. Cir. 1993).

Title VII of the 1964 Civil Rights Act provides that:
It shall be an unlawful employment practice for an 
employer—
(l) to fail or refuse to hire . . .  or otherwise to discrimi­
nate against any individual with respect to . . .  compensa­
tion, terms, conditions, or privileges of employment, be­
cause of such individual’s . . .  sex----

42 U.S.C. § 2000e-2(a). In M cDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973), the Supreme Court set forth the 
basic allocation of burdens and order of proof in Title VII 
cases alleging discriminatory treatment, as the complaint 
does in this case. The plaintiff bears the initial burden of 
proving a prima facie case of discrimination. Id. at 802. 
Where sex discrimination in promotion is alleged, a plaintiff 
proves her prima facie case by showing that she is female, 
that she was refused a position for which she applied and was 
qualified, and that the employer filled the position with a



47a

male. See Valentino v. U nited S tates P ostal Serv., 674 F.2d 
56, 63 (D.C. Cir. 1982); B undy v. Jackson, 641 F.2d 934, 951 
(D.C. Cir. 1981). If established, the prima facie case raises 
an inference of discrimination that the employer may rebut 
with evidence of legitimate, nondiscriminatory reasons for the 
plaintiffs rejection. M cDonnell Douglas, 411 U.S. at 802. 
The plaintiff then bears the ultimate burden of persuading 
the jury of intentional discrimination, which she may satisfy 
by proving that the defendant’s proffered reasons were pre­
texts for unlawful discrimination. Barbour v. M errill, 48 
F.3d 1270,1277 (D.C. Cir. 1995), cert, granted, 116 S. Ct. 805, 
cert, dism issed, 116 S. Ct. 1037 (1996); see M cDonnell D oug­
las, 411 U.S. at 802-805.

As in the district court, ADA concedes that Kolstad “met 
the paper qualifications for the vacancy,” Appellee/Cross- 
Appellant’s Br. at 37, and that the jury could have reasonably 
found that, despite her qualifications, “Kolstad never was in 
the running” for the Director’s job because Executive Di­
rector Allen had decided, before the vacancy was posted, 
that Spangler was the best candidate to replace O’Donnell. 
Appellee/Cross-Appellant’s Reply Br. at 10. ADA argues, 
however, that even assuming Spangler’s preselection for the 
position, no reasonable jury could have concluded that Kol­
stad was a victim of sex discrimination because the evidence 
overwhelmingly demonstrates legitimate nondiscriminatory 
reasons for Kolstad’s rejection. We disagree.

An employer’s preselection of a job candidate, in violation 
of its own procedures requiring fair consideration of qualified 
applicants, is “undeniably relevant to the question of discrimi­
natory intent,” Krodel v. Young, 748 F.2d 701, 709 (D.C. Cir.
1984), and “operates to discredit the employer’s proffered 
explanation for its employment decision,” Goostree v. S tate of 
Tenn., 796 F.2d 854, 861 (6th Cir. 1986); see also Krodel, 748 
F.2d at 709 (improper selection procedures relevant to deter­
mination that employer’s nondiscriminatory explanation un­
worthy of belief). Here, evidence that Allen “cut-and-paste” 
Spangler’s job responsibilities into the Position Description 
Questionnaire for O’Donnell’s position, that Office Director



48a

Wheat agreed that Spangler’s goals for 1993 included per­
forming portions of O’Donnell’s job, and that Spangler began 
meeting extensively with O’Donnell as soon as his retirement 
was announced permitted the jury to conclude that ADA had 
selected Spangler to succeed O’Donnell before the posting of 
the position in November 1992. From evidence that Allen did 
not review Kolstad’s performance evaluations or resume, 
failed to interview Kolstad for the position, and gave Kolstad 
a different explanation for her rejection than the one subse­
quently offered by ADA, the jury could also have reasonably 
found that ADA’s claimed nondiscriminatory reasons for 
choosing Spangler over Kolstad—that Kolstad lacked recent 
legislative experience and strong writing skills—-were after- 
the-fact rationalizations unworthy of belief.

We have held that a jury’s “rejection of the employer’s 
nondiscriminatory reasons, while not sufficient to compel a 
finding of discrimination, nonetheless suffices to perm it such 
a finding.” Barbour, 48 F,3d at 1277; see also St. M a ry ’s 
H onor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). As the 
Supreme Court has observed, “ ‘no additional proof of dis­
crimination is required.’ ” Hicks, 509 U.S. at 510 (quoting 
H icks v. St. M a ry ’s H onor Ctr., 970 F.2d 487, 493 (8th Cir. 
1992)). Thus, “a plaintiff need only establish a prima facie 
case and introduce evidence sufficient to discredit the defen­
dant’s proffered nondiscriminatory reasons; at that point, the 
fact finder, if so persuaded, may infer discrimination.” Barb­
our, 48 F.3d at 1277. Because Kolstad introduced sufficient 
evidence for the jury to conclude both that she had proven a 
prima facie case of discrimination and that ADA’s proffered 
reasons were pretextual, the jury could have reasonably 
concluded that Kolstad proved intentional sex discrimination.

As in Barbour, while we need not speculate about the jury’s 
reasoning, it could have inferred that Kolstad’s sex—and not 
her qualifications—motivated ADA’s actions. That inference 
could reasonably flow from Kolstad’s prima facie case and the 
evidence of Spangler’s preselection, as well as from Kolstad’s 
testimony, contested but not incredible, that Wheat ignored 
her efforts to discuss the promotion, denied her other career­



49a

enhancing opportunities, told sexually offensive jokes at staff 
meetings, and referred to several professional women as 
“bitches” or “battleaxes.” Although Wheat did not formally 
appoint O’Donnell’s successor, he had the authority to do so, 
recommending to Allen that Spangler and not Kolstad get the 
job. Consistent with our cases and the evidence at trial, the 
district court properly denied ADA’s motion for judgment as 
a matter of law.

I ll
Having decided that the jury could reasonably find that 

ADA intentionally discriminated against Kolstad, we next 
address Kolstad’s challenge to the district court’s dismissal of 
her claim for punitive damages.

Finding that “additional remedies under Federal law are 
needed to deter unlawful harassment and intentional discrimi­
nation in the workplace,” 42 U.S.C. § 1981 (note) (1994) 
(Congressional Findings), Congress enacted the Civil Rights 
Act of 1991, significantly expanding the monetary relief po­
tentially available to victims of unlawful discrimination. See 
42 U.S.C. § 1981a; L an dgraf v. USI F ilm  Products, 511 U.S. 
244, 252-55 (1994). The Act provides that a plaintiff who 
proves intentional discrimination in violation of Title VII may 
recover compensatory and punitive damages in addition to 
equitable relief available under prior law. 42 U.S.C.
§ 1981a(a). Punitive damages may be awarded “if the [plain­
tiff] demonstrates that the [defendant] engaged in a discrimi­
natory practice . . .  with malice or with reckless indifference 
to the federally protected rights of an aggrieved individual.” 
42 U.S.C. § 1981a(b)(l). The Act caps punitive damages, 
along with compensatory awards, at between $50,000 and 
$300,000, depending on the employer’s size. 42 U.S.C. 
§ 1981a(b)(3).

Relying on an excerpt from the Act’s legislative history, 
ADA argues that Congress intended Title VII plaintiffs to 
recover punitive damages only in “extraordinarily egregious 
cases,” suggesting that the quantum of proof necessary to 
sustain such an award is greater than courts have traditional­



50a

ly required. See 137 Cong. Rec. S 15473 (Oct. 30, 1991) 
(Interp. Mem. of Sen. Dole et al.), In response, Kolstad 
points to legislative history expressly contradicting this asser­
tion: “Punitive damages are available under [§ 1981a] to the 
same extent and under the same standards that they are 
available to plaintiffs under 42 U.S.C. § 1981.” See 137 Cong. 
Rec. H 9527 (Nov. 7, 1991) (Interp. Mem. of Rep. Edwards). 
Decisive to us, however, is section 1981a’s plain language, 
which tracks the standard that courts had previously estab­
lished for the proof required to sustain awards of punitive 
damages under other federal civil rights statutes. See Sm ith  
v. Wade, 461 U.S. 30, 56 (1983) (plaintiff must prove “evil 
motive or intent, or . . .  reckless or callous indifference to the 
federally protected rights of others” for punitive award under 
§ 1983); W illiam son v. H an dy Button Mach. Co., 817 F.2d 
1290, 1296 (7th Cir. 1987) (applying same standard under 
§ 1981). That standard, in turn, is rooted in the common law. 
See, e.g., Restatement (Second) of Torts § 908(2) (1979) (“Pu­
nitive damages may be awarded for conduct that is outra­
geous, because of the defendant’s evil motive or his reckless 
indifference to the rights of others.”); see also Wade, 461 
U.S. at 38-49. We think that if Congress had meant the 
courts to depart from well-established legal standards, it 
would have made that intention clear in the language of the 
Act. Because it did not do so, instead choosing language 
already laden with meaning, and because we find no authori­
tative legislative history to suggest otherwise, we hold that 
the standard of proof required to sustain awards of punitive 
damages under 42 U.S.C. § 1981a is the same as that previ­
ously established for punitive awards under 42 U.S.C. 
§§ 1981 and 1983.

As both the Supreme Court and this court have explained, 
“evidence that suffices to establish an in tentional violation of 
protected civil rights also may suffice to permit the jury to 
award punitive damages, provided that the jury, in its ‘discre­
tionary moral judgment,’ finds that the conduct merits a 
punitive award.” Barbour, 48 F.3d at 1277 (emphasis added) 
(citations omitted) (quoting Wade, 461 U.S. at 52). In such 
cases, “[n]o additional evidence is required,” id., because “the



51a

state of mind necessary to trigger liability for the wrong is at 
least as culpable as that required to make punitive damages 
applicable.” Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 
205 (1st Cir. 1987). Having concluded that the jury could 
reasonably find from the evidence that ADA intentionally 
discriminated against Kolstad, the district court should have 
instructed the jury that upon the requisite finding—malice or 
reckless indifference to Kolstad’s rights—it could consider a 
punitive award. The evidentiary threshold having been 
reached, discretion to award punitive damages, within the 
limits set by statute, lay with a properly instructed jury, not 
the court.

Citing legislative history from the unadopted House version 
of the 1991 Act and case law from other jurisdictions, our 
dissenting colleague argues that “something substantially 
more blameworthy” than “garden-variety” intentional race or 
sex discrimination should be required before a jury may 
consider a punitive award under § 1981a. Dissent at 1, 11. 
We note that the House Report on which the dissent relies 
states clearly that the new law “sets the same standard courts 
have applied under § 1981,” H.R. Rep. No. 40(1), 102d Cong., 
1st Sess. at 74, and cites the First Circuit’s decision in 
Rowlett v. Anheuser-Busch, as well as Sm ith  v. Wade, cases 
which support, in our view, this court’s § 1981 jurisprudence. 
Consistent with our holding in Barbour and the Supreme 
Court’s reasoning that “society has an interest in deterring 
and punishing all intentional or reckless invasions of the 
rights of others,” Wade, 461 U.S. at 54-55, we can conceive of 
no principled basis for second-guessing the jury’s “discretion­
ary moral judgement,” id., about which acts of intentional 
discrimination are sufficiently “outrageous” or “egregious” to 
merit punitive awards. Nor, as the dissent admits, do the 
cases from our sister circuits supply one, much less the 
smattering of state court eases which the dissent implies have 
worked some change in the common law since Wade. If, as 
the dissent suggests, something is missing from Kolstad’s 
case as a m atter o f law, what is it? Or, as the First Circuit 
put the question in a different context, “can it really be 
disputed that intentionally discriminating against a black man



52a

on the basis of his skin color is worthy of some outrage?” 
Rowlett, 832 F.2d at 206. Absent persuasive answers to 
these questions or further guidance from Congress, we leave 
the decision to award punitive damages for intentional civil 
rights violations to the jury.

By our decision today, we do not suggest that evidence 
sufficient to establish liability under Title VII for intentional 
discrimination will always sustain an award of punitive dam­
ages under section 1981a. Not every employment practice 
violating Title VII is “obviously the kind of conduct that 
society normally will not tolerate.” H em an dez-T irado  v. 
Artau, 874 F.2d 866,869 (1st Cir. 1989) (setting aside punitive 
damages in § 1983 case of politically motivated demotion of 
public official). Rather, it may be “conduct that sometimes is 
lawful and sometimes is not, depending on a complex set of 
legal rules . . .  that a particular [employer] might, or might 
not, actually understand.” Id. at 869-70. Thus, where an 
employer does not deny discrimination but defends on the 
ground that the discrimination is not unlawful, evidence suffi­
cient to support a finding of liability might not also support a 
finding of malice or reckless disregard of federally protected 
rights. For example, evidence that an employer erroneously 
used religion, sex, or national origin as a “bona fide occupa­
tional qualification” for employment, see 42 U.S.C. § 2000e- 
2(e), may be insufficient to support an award of punitive 
damages. Evidence that an employer overreached in its 
efforts lawfully to remedy the effects of past discrimination 
likewise might be insufficient to establish that the employer 
acted maliciously or recklessly. In such cases, although the 
challenged employment practice amounts to “intentional” dis­
crimination, it may only be “negligent [as] to the existence of 
a federally protected right,” H em andez-T im do, 874 F.2d at 
870. We also think that where intentional discrimination 
occurs outside the scope of the agency relationship between 
employer and employee-—in a hostile work environment case, 
for example—evidence sufficient to support employer liability 
may not establish that the employer maliciously or recklessly 
permitted the offending conduct. See, e.g., F arpello-Crosby  
v. H orizon Health Care, 97 F.3d 803, 809-10 (5th Cir. 1996);



53a

see generally G ary v. Long, 59 F.3d 1391 (D.C. Cir. 1995) 
(discussing application of agency law to hostile work environ­
ment claims). In each of these kinds of cases, the district 
court may need to assess separately whether evidence suffi­
cient to support a finding of intentional discrimination also 
suffices to instruct the jury on punitive damages.

This case does not present these or analogous circum­
stances. ADA neither attempted to justify the use of sex in 
its promotion decision nor disavowed the actions of its agents. 
Rather, it flatly denied Kolstad’s allegation of invidious sex 
discrimination, discrimination lying at the heart of Title VII 
that society no longer tolerates. Having produced evidence 
sufficient to prove her charge, Kolstad was entitled to have 
the jury consider whether ADA’s conduct warranted a puni­
tive award. We thus remand the case to the district court for 
trial on Kolstad’s punitive damages claim.

This brings us to Kolstad’s argument that, in a trial of her 
claim for punitive damages, she should be permitted to intro­
duce in evidence a consent decree settling a prior discrimina­
tion suit brought against ADA in which the association, 
although admitting no liability, conceded that “preselection of 
a favored candidate” is contrary to its personnel policies. 
The district court ruled the consent decree inadmissible at 
trial, finding its probative value as evidence of ADA’s prese­
lection of Spangler substantially outweighed by its possibly 
prejudicial effect on the jury. See Fed. R. Evid. 403. Al­
though finding no abuse of discretion in the district court’s 
ruling, see Joy v. Bell H elicopter Textron, Inc, 999 F.2d 549, 
554 (D.C. Cir. 1993) (Rule 403 determination reversed only 
for abuse of discretion), we note the court’s suggestion that it 
would reconsider the decree’s admissibility to impeach the 
testimony of ADA’s witnesses. Because Kolstad did not offer 
the document for impeachment purposes, we express no 
opinion on whether, or in what circumstances, the consent 
decree might now be admissible as evidence to support 
Kolstad’s claim for punitive damages. See Johnson v. 
WMATA, 883 F.2d 125, 130 (D.C. Cir. 1989) (in Rule 403 
balancing, court must consider probative value in light of 
other evidence at trial).



54a

IV.
We turn finally to the parties’ respective challenges to the 

district court’s treatment of the jury’s verdict. ADA argues 
that the district court erred by ruling that the jury’s verdict 
was binding on the court. Because the parties had agreed 
that the jury would sit only in an advisory capacity with 
respect to back pay, and because back pay was the only claim 
for relief to reach the jury, ADA contends that the jury’s 
verdict was advisory in its entirety, and that we should 
remand the ease to the district court for findings of fact and 
conclusions of law under Federal Rule of Civil Procedure 52. 
Kolstad disagrees, arguing that because she was entitled to a 
jury trial on her claims for compensatory and punitive dam­
ages, see 42 U.S.C. § 1981a(c), the district court was bound to 
accept the jury’s verdict notwithstanding the dismissal of 
those claims. She thus contends that the district court erred 
in rejecting her claims for further equitable relief and attor­
ney’s fees based on the court’s independent view of the 
evidence. Although we agree that the district court erred in 
its treatment of the jury’s verdict, we conclude that the 
proper disposition of this case lies in between the parties’ 
competing positions.

To begin with, we agree with Kolstad that the jury’s 
determination of liability must remain undisturbed. But for 
the court’s error in dismissing Kolstad’s punitive damages 
claim, the jury’s verdict would have been conclusive, as a 
claim for punitive damages capable of withstanding summary 
judgment entitled Kolstad to a jury trial. Furthermore, 
when the district court expressed its view that the evidence 
was insufficient to support an award of either compensatory 
or punitive damages, ADA neither moved to dismiss the jury 
nor expressly argued, as it does now, that the jury’s determi­
nation of liability could therefore only be advisory. Rather, 
ADA’s counsel suggested that “the issue for the jury, if the 
court were to have the jury provide an advisory verdict on 
damages, would be whether Ms. Kolstad is entitled to back
pay___” As a result, the district court framed this question,
“[A]re you agreed that if I allow the jury to deliberate on 
damages, it is an advisory verdict to the extent that i t



55a

represents back pay?  ” Although the record is not entirely 
clear on this point, it seems to us that both the parties and 
the court were operating on the assumption that the jury 
would conclusively decide the question of liability, regardless 
of whether the jury’s determination of the back pay award 
was only advisory.

As to the question of back pay, we agree with ADA that the 
district court was not bound by the jury’s verdict. Before 
voir dire, Kolstad represented to the district court that the 
parties had agreed “to the jury resolving questions in an 
advisory capacity with respect to the equitable relief,” includ­
ing back pay, under Rule 39(c). Although that rule gives the 
district court discretion to try equitable claims with an adviso­
ry jury, Rule 52(a) requires in such cases that the court enter 
its own findings of fact and conclusions of law. Fed. R. Civ. 
P. 39(c), 52(a). Because the record does not reflect that ADA 
consented to a binding jury determination of Kolstad’s back 
pay award, the jury’s verdict was advisory on that score. On 
remand, the district court must therefore make its own 
findings as to the amount of back pay, if any, Kolstad should 
receive.

Finally, the district court must also reconsider Kolstad’s 
claims for further equitable relief and attorney’s fees. Con­
sistent with the Seventh Amendment’s command that “no fact 
tried by a jury[ ] shall be otherwise re-examined in any Court 
of the United States,” U.S. Const, amend. VII, “when a case 
contains claims triable to a jury and claims triable to the 
court that involve common issues of fact, the jury’s resolution 
of those issues governs the entire case.” Bouchet v. N ational 
Urban League, Inc., 730 F.2d 799, 803 (D.C. Cir. 1984); see 
generally D a iry  Queen v. Wood, 369 U.S. 469 (1962). As our 
sister circuits have uniformly held in cases involving allega­
tions of intentional discrimination, the district court must 
therefore follow the jury’s factual findings with respect to a 
plaintiffs legal claims when later ruling on claims for equita­
ble relief. See, e.g., Sorlucco v. N ew  York C ity Police D ep t, 
971 F.2d 864, 873-74 (2d Cir. 1992); M iller v. Fairchild  
Indus., Inc., 885 F.2d 498, 507 (9th Cir. 1989) (citing addition­
al cases). Contrary to this principle, the district court here



56a

denied Kolstad’s claim for instatement, as well as her petition 
for attorney’s fees, on the ground that she had not proven her 
claim of intentional sex discrimination “to the Court’s satisfac­
tion.” Because we agree with the district court that the 
jury’s finding of intentional discrimination must be upheld, 
Kolstad is entitled to have her claims for equitable relief and 
attorney’s fees properly considered by the court in light of 
the jury’s verdict.

Affirming the district court’s denial of ADA’s motion for 
judgment as a matter of law, we remand the case to the 
district court for trial on punitive damages and for reconsid­
eration of Kolstad’s claims for equitable relief and attorney’s 
fees.

So ordered.



57a

W illiams, Circuit Judge, concurring in part and dissenting 
in part. I concur in much of the decision, but not in the 
conclusion that in a Title VII suit the minimum standard of 
evidence for punitive damages is, with narrow exceptions, no 
higher than the standard for liability. See Maj. Op. at 8-12.

The 1991 Civil Rights Act authorizes punitive damage 
awards in Title VII cases where the defendant engaged in the 
discriminatory act “with malice or with reckless indifference 
to the [plaintiffs] federally protected rights.” 42 U.S.C. 
§ 1981a(b)(l) (1994). The majority concludes that in the 
ordinary claim of sex discrimination, which must be intention­
al to be actionable (except for “disparate impact” liability, for 
which the statute expressly precludes punitive damages), the 
jury is automatically empowered to find malice or reckless 
indifference. Maj. Op. at 9-10. The ruling may seem to 
manifest impeccable logic, as an intent to discriminate seems 
to encompass “reckless indifference” to the rights of the 
discrimination victim. But the upshot of the majority’s view 
is that punitive damages are available in every case of 
garden-variety Title VII discrimination, excepting only a few 
rather unusual ones such as claims dependent on an employ­
er’s miscalculation of the bona fide occupational qualification 
exception. See Maj. Op. at 11-12. But if this were Con­
gress’s intent, why would there be a separate provision 
purporting to describe a special standard for punitive dam­
ages?

Every circuit to address the question thus far has read 
§ 1981a to demand proof of a more culpable state of mind for 
punitive damages than the ordinary intent necessary for a 
violation of Title VII. E m m el v. Coca-Cola Bottling, 95 F.3d 
627, 636 (7th Cir. 1996) (characterizing standard for punitive 
damages as a “higher hurdle” than that for proving the 
underlying discrimination); Turic v. H olland H ospitality, 
Inc., 85 F.3d 1211, 1216 (6th Cir. 1996) (despite sufficiency of 
evidence for liability and “duplicitous” actions of defendant’s 
employees, evidence insufficient for punitive damages); 
K archer v. Em erson E lectric Co., 94 F.3d 502, 509 (8th Cir.



58a

1996) (although jury could properly infer intentional sex 
discrimination from inconsistent nature of hiring process and 
failure to select and train women, it could not find malice or 
deliberate indifference); P andazides v. V irgin ia Bd. ofE duc., 
13 F.3d 823, 830 n.9 (4th Cir. 1994) (stating in dictum that 
“[w]hile ‘intentional discrimination’ suffices to recover com­
pensatory damages, Congress requires a heightened showing 
of discriminatory action . . .  to recover punitive damages”); 
M cKinnon v. Kwong Wah R estaurant, 83 F.3d 498, 507-09 
(1st Cir. 1996) (endorsing concept of a higher standard for 
punitive damages; rejecting district court’s denial of punitive 
damages solely on basis of cultural factors, but acknowledging 
that cultural factors would “likely have an impact on [a 
defendant’s] consciousness of wrongdoing”). None of these 
opinions, to be sure, offers much by way of explanation, 
although M cKinnon  points to a comparatively useful piece of 
legislative history, the House Report on language almost 
identical to that of the final bill:

Plaintiffs must first prove intentional discrimination, then 
must prove actual injury or loss arising therefrom to 
recover compensatory damages, and m u st m eet an  even 
higher standard  (establishing that the employer acted 
with malice or reckless or callous indifference to their 
rights) to recover pun itive damages.

Id. at 507, quoting H.R. Rep. No. 40(1), 102d Cong., 1st Sess. 
at 72 (1991) (emphasis added) (“House Report”).1 To justify 
creating a split with five sister circuits (particularly in light of 
this item of legislative history), we ought to have a powerful 
reason. I don’t see it.

* * * *

lrThe majority dismisses the House Report as involving “the 
unadopted House version of the 1991 Act.” Maj. Op. at 10. But 
the only conceivably material difference in wording is that the 
House bill allowed punitive damages on a broader basis than the 
ultimate legislation, as it permitted them where defendant engaged 
in discriminatory practices “with malice, or with reckless or callous 
indifference to [plaintiffs] federally protected rights,” House Re­
port at 12 (emphasis added), the key difference being addition of 
the word “callous” in the alternative.



59a

I agree with the majority’s general proposition that it is 
sensible to look to standards rooted in the common law to 
understand what Congress meant when using the phrase 
“malice or reckless indifference.” But in what seems to me 
the relevant context, namely decisions relating to intentional 
torts and of roughly the vintage of the 1991 Act, the common 
law appears to require a state of mind more extreme than 
what is required for the intentional tort on which the punitive 
claim is piggybacked.

In Sm ith  v. W ade, 461 U.S. 30 (1983), the Court addressed 
the right of plaintiffs to punitive damages in cases arising 
under 42 U.S.C. § 1983. The claim was that the defendant 
prison guard had failed to protect the plaintiff inmate from 
harassment, beatings and sexual assault by fellow inmates. 
The plaintiff had proved gross negligence on the part of the 
guard, and thus a violation of plaintiffs Eighth Amendment 
right. Id. at 33. As § 1983 made no reference to punitive 
damages, the Court looked to the common law for the appro­
priate standard. It rejected the proposition that “actual 
malicious intent—‘ill will, spite, or intent to injure’,” id. at 37, 
was required for punitive damages, and held instead that they 
were allowable when the defendant’s conduct was “motivated 
by evil motive or intent, or when it involvefd] reckless or 
callous indifference to the federally protected rights of oth­
ers.” Id. at 56. The Court reasoned that “the rule in a large 
majority of [states] was that punitive damages . . .  could be 
awarded without a showing of actual ill will, spite, or intent to 
injure.” Id. at 41. A dissent by Justice Rehnquist, joined by 
Chief Justice Burger and Justice Powell, read the historic 
record differently, arguing that “at least some degree of bad 
faith or improper motive” was required. Id. at 56. Justice 
O’Connor also dissented. Finding that the historical record 
provided no real guidance on the intent of Congress at the 
time of enactment in 1871, she reasoned that the majority’s 
standard was inconsistent with the purposes of § 1983.

Obviously it is not our place to replay this argument. I 
make only a narrower point. In the area of intentional torts, 
the common law analog of intentional discrimination, courts 
generally require an especially egregious intent, even when



60a

they are applying punitive damage standards phrased  the 
same as the one set forth in Sm ith  v. W ade and echoed in 
§ 1981a(b)(l). In doing so, they apply the general principle 
that “[s]omething more than the mere commission of a tort is 
always required for punitive damages.” W. Page Keeton et 
al., Prosser & Keeton on the Law of Torts § 2, at 9 (5th ed. 
1984); see also id. at 11 (“it is not so much the particular tort 
committed as the defendant’s motives and conduct in commit­
ting it”). To be sure, the Sm ith  v. W ade majority’s reading 
of the “rules of ordinary tort law” in substance rejected 
Prosser & Keeton’s. 461 U.S. at 53. But in the realm of 
intentional torts such a rejection has little support.

The Restatement (Second) of Torts, Section 908, for in­
stance, asserts a generality similar to the wording of Sm ith  v. 
W ade and of § 1981a, saying that punitive damages are 
allowable “for conduct that is outrageous, because of the 
defendant’s evil motive or his reckless indifference to the 
rights of others.” One might expect that under this formula 
plaintiffs asserting any intentional tort could automatically 
get to the jury on punitive damages. But the comments to 
the Restatement draw such a claim in question. Comment b 
says that damages are only appropriate where there is “some 
element of outrage similar to that usually found in crime.” 
See also comment d (although award of punitive damages left 
to jury discretion, “[i]t is error . . .  to award punitive dam­
ages if there has been no bad motive or wanton indifference”).

Some state courts have explicitly interpreted the Restate­
ment to require some evidence of bad motive in the intention­
al tort context. The Missouri Supreme Court in B urnett v. 
Griffith, 769 S.W.2d 780 (1989) (en banc), said that it “is not 
so much the commission of the intentional tort as the conduct 
or motives—the defendant’s state of mind-—which prompted 
its commission that form the basis for a punitive damage 
award.” Id, at 787. “Plaintiff must prove that defendant’s 
evil hand was guided by an evil mind.” Id. The court 
rejected a jury instruction stating that malice “does not mean 
hatred, spite or ill will, as commonly understood, but means 
the doing of a wrongful act intentionally without just cause or 
excuse,” id. at 788, explaining that the language failed to



61a

explain to jurors that “a bad motive or reckless disregard for 
the rights of others is required.” Id. at 789; see also R y b u m  
v. General H eating & Cooling, Co., 887 S.W.2d 604, 609 (Mo. 
App. 1994) (interpreting B urnett as focusing “on the matter 
of moral culpability so that the jury would not impose puni­
tive sanction on a defendant for the mere commission of an 
intentional tort”).

Similarly, the D.C. Court of Appeals has construed lan­
guage at least as loose as that of § 1981a (“fraud, ill will, 
recklessness, wantonness, willful disregard of the plaintiffs 
rights, or other circumstances tending to aggravate the inju­
ry”) to require, for the tort of intentional interference with 
contract, something more than the intent necessary for the 
tort itself. D yer v. W illiam  S. B ergm an & Assocs., 657 A.2d 
1132,1139 n.10 (D.C. 1995). Given the “overlap” between the 
state of mind needed for punitive damages and that needed 
for tortious interference with contract, the court said:

[T]rial judges must be alert to the need to frame their 
instructions to the jury in a way that makes it clear that 
proof of intentional interference [with contract] does not 
automatically entitle the plaintiff to an award of punitive 
damages.

Arguably, where the tort alleged is an intentional one, 
inherently containing elements of willfulness, an award of 
punitive damages must rest upon that tort being commit­
ted in an outrageous way; in other words, the “outra­
geousness” cannot be supplied by the conduct required to 
commit the tort itself.

Id. And Alaska, which at least nominally allows punitive 
damages for “reekless indifference” to others’ interests, 
A lyeska P ipeline Service Co. v. O ’Kelley, 645 P.2d 767 (Ak. 
1982), in fact denies them where an intentional tort is not 
accompanied by evidence supporting an inference of “actual 
malice or conduct sufficiently outrageous to be deemed equiv­
alent to actual malice”. Id. at 774.

Similarly, Vermont courts have used “reckless” language, 
but seem to require bad motive on top of the intentional tort.



62a

Vermont limits “exemplary” or punitive damages to cases of 
“malice, ill will, or wanton conduct,” but includes within those 
terms action that is “reckless with regard to the plaintiffs 
rights.” B runtaeger v. Zeller, 515 A.2d 123, 127 (Vt. 1986) 
(emphasis added). Yet, when applying the same formulation 
in State A gency o f  N a tu ra l Resources v. Riendeau, 603 A.2d 
360 (Vt. 1991), it held that under a statute imposing ordinary 
liability for “willful” violations, punitive damages could be 
awarded only for “bad spirit and wrong intention,” and that 
therefore plaintiff must show “some . . .  bad motive [that 
makes the] knowing and intentional conduct malicious.” Id. 
at 365; cf. id. (distinguishing between the meaning of “will­
ful” in civil eases, where it is “a synonym for ‘intentional’ ” 
and in criminal cases, where it has a “different and darker 
shade of meaning”).

Cases of an insurer’s bad fa ith  denial of insured’s claims 
pose a related issue. The tort’s label suggests that it re­
quires a more culpable state of mind than mere “intention,” 
but courts in some jurisdictions allow recovery where the 
insurer has acted in “reckless disregard” of its lack of a 
reasonable basis for denial. M cCullough v. Golden Rule  
Insurance Co., 789 P.2d 855, 860 (Wyo. 1990); A nderson  v. 
Continental Insurance Co., 271 N.W.2d 368, 376 (Wise. 1978). 
In any event, courts appear to have reacted with the same 
impulse to reserve punitive damages for egregious cases. 
When the Wyoming Supreme Court embraced the tort, it 
hastened to refute the suggestion that every such claim would 
entail a possibility of punitive damages, saying that plaintiff 
must also show “wanton or willful misconduct,” M cCullough, 
789 P.2d at 861, even though Wyoming nominally allows 
punitive damages for “reckless indifference,” id. at 860 n .ll. 
The court quoted decisions from other jurisdictions requiring 
not only intentional breach of the duty of good faith, but 
“oppression, fraud, or malice.” Id. at 861.

Wisconsin courts similarly demand an extra notch of evil: 
[T]here is a distinction between the intent or malice 
necessary to maintain an action for intentional tort (such 
as bad faith) and the intent which must be shown to



63a

recover punitive damages. . . .  [T]here must be a show­
ing of an evil intent deserving of punishment or some­
thing in the nature of special ill-will or wanton disregard 
of duty or gross or outrageous conduct.

Anderson, 271 N.W.2d a t 379; see also M id-C on tinen t R e­
frigera tor Co. v. S traka, 178 N.W.2d 28, 32-33 (Wise. 1970) 
(noting distinction between “the intent or malice necessary to 
maintain an action for an intentional tort and that necessary 
to recover punitive damages” and stating that “something 
must be shown over and above the mere breach of duty for 
which compensatory damages can be given”).

Some courts, to be sure, take the view that where the 
elements of an intentional tort entail characteristics justifying 
punitive damages in other contexts, they are freely available 
even though the effect is to make punitive damages possible 
wherever liability is found. See, e.g., EUerin v. F airfax  
Savings, F.S.B., 652 A.2d 1117,1126 (Md. 1995) (“elements of 
the tort of [intentional] fraud or deceit in Maryland . . .  
include the type of deliberate wrongdoing and evil motive that 
has traditionally justified the award of punitive damages”); 
Owens v. P arker D rilling  Co., 676 P.2d 162, 165 (Mont. 1984) 
(“where a statute is designed to protect the substantial inter­
ests of a person from a high degree of risk, and the statute is 
violated either intentionally or recklessly, a jury question of 
punitive damages is raised”); M cM ullin  v. M urphy, 748 P.2d 
171, 173 (Or. Ct. App. 1988) (“evidence sufficient to establish 
intentional fraud is also necessarily sufficient to support the 
requisite findings for the imposition of punitive damages, 
without additional or independent evidence pertaining to the 
culpability of the defendant’s conduct or state of mind”).

Perhaps lining up citations on both sides of this question is 
just another “unilluminating, exegesis of the common law” 
similar to that in Sm ith  v. Wade, which Justice O’Connor 
there described as yielding only “inexact and contradictory 
language” unhelpful in interpreting a statute. 461 U.S. at 92- 
93 (O’Connor, J., dissenting). But that was the Court’s 
approach in Sm ith  v. W ade, and in this search for analysis by 
state common law courts I find the weight of authority



64a

against the idea that just because the governing formula 
allows punitives for “reckless” behavior it follows that all 
intentional torts are eligible for punitive damages. In addi­
tion, to the extent that there appears to be a split of authority 
on the question, the split is less close than it appears in view 
of other measures taken to constrain the award of punitives.

The concern that punitive damages ought not be awarded 
in every case is reflected in a variety of devices designed to 
reduce their incidence. See generally Restatement (Second) 
of Torts, § 908, comment f; see also B M W  o f N orth  America, 
Inc. v. Gore, 116 S. Ct. 1589, 1618 (1996) (Ginsburg, J., 
dissenting) (appendix summarizing recent state legislative 
activity designed to reduce the incidence of punitive dam­
ages). More than half the states require that evidence sup­
porting punitive damages be “clear and convincing,” most of 
them doing so by statute but several by common law adjudi­
cation. See Brian T. Beasley, “North Carolina’s New Puni­
tive Damages Statute: Who’s Being Punished, Anyway?” 74 
N.C. L. Rev. 2174, 2201 (1996) (appendix providing survey of 
punitive damage provisions in all 50 states). Although the 
standard of proof is not at issue in this case, the reasons for 
adoption of a clear and convincing standard suggest a wide­
spread understanding that the award of punitive damages 
should not be an everyday event. See, e.g., M asaki v. 
General M otors Corporation, 780 P.2d 566, 574-75 (Haw. 
1989) (more exacting standard because punitive damages are 
stigmatizing punishment of a “quasi-criminal” type); Linthi- 
cum  v. N ationw ide Life Insurance Co., 723 P.2d 675, 681 
(Ariz. 1986) (en banc) (applying higher standard because 
punitive damages are “only to be awarded in the most egre­
gious of cases, where there is reprehensible conduct combined 
with an evil mind over and above that required for commis­
sion of a tort”); Tuttle v. R aym ond , 494 A.2d 1353,1363 (Me.
1985) (adopting clear and convincing standard because of the 
risk posed by punitive damages if they can be “loosely 
assessed”).

In light of this common law background, it seems improba­
ble that in adopting § 1981a Congress intended to adopt a



65a

punitive damage standard creating near-universal availability, 
despite its use of “recklessness” in the statutory formulation.

* * *

As the majority opinion makes clear, the common law is not 
the only source for interpretation. We can also look to how 
courts have interpreted a kindred provision, 42 U.S.C. 
§ 1981.2 Here the circuits are split, with three demanding 
more than mere intent to discriminate and three not doing so; 
of the latter, the F irst and Seventh decline to extend the 
reasoning to § 1981a.

In Beauford v. S isters o f  M ercy-Province o f D etroit, 816 
F.2d 1104 (6th Cir. 1987), the court cited language from 
Sm ith  v. W ade but then stated that punitive damages in civil 
rights actions have “generally been limited to cases involving 
egregious conduct or a showing of willfulness or malice on the 
part of the defendant.” Id. at 1109. Although finding 
enough evidence of intentional discrimination, the court said 
there was no evidence of “the requisite malice or reckless or 
callous indifference of an egregious character,” so punitive 
damages could not be awarded. Id. The court in Stephens v. 
So. A tlan tic  Canners, Inc., 848 F.2d 484 (4th Cir. 1988), 
followed Beauford, observing that an award of punitive dam­
ages “is an extraordinary remedy and is designed to punish 
and deter particularly egregious conduct.” Id. at 489. 
Though the evidence was adequate for plaintiff to get to the 
jury on intentional discrimination, and though noting that any 
form of discrimination “constitutes reprehensible and abhor­

2 Section 1981 prohibits discrimination on the basis of race in the 
making and enforcement of contracts. In the employment context, 
it overlaps substantially with Title VII, but the two differ in 
important respects (e.g., § 1981 applies only to racial discrimination 
while Title VII covers sex discrimination as well). Until 1991 one of 
the most important differences was the availability of compensatory 
and punitive damages under § 1981 but not under Title VII, a 
difference that made juries available for the former but not the 
latter. The Civil Rights Act of 1991 brings these two discrimination 
statutes closer together, but they remain distinct. For example, 
punitive damage claims under Title VII are capped, while those 
under § 1981 are not.



66a

rent conduct,” id., the court found the evidence inadequate 
for punitive damages. And in W alters v. C ity o f A tlan ta , 803 
F.2d 1135 (11th Cir. 1986), a § 1983 action based upon racial 
discrimination, after finding the evidence adequate on liabili­
ty, the court held that several of the defendants who had 
denied plaintiff employment had nonetheless not “acted with 
either the requisite ill will or callous disregard” to justify 
punitive damages.

In the opposite camp are this circuit, the F irst and the 
Seventh. In Barbour v. M errill, 48 F.3d 1270 (D.C. Cir. 
1995), cert, granted, 116 S. Ct. 805, cert, d ism issed, 116 S. Ct. 
1037 (1996) (voluntary settlement by parties), we held that 
under § 1981 the jury’s (sustainable) “finding of intentional 
racial discrimination permitted it to find” the requisite ill will 
or reckless or callous indifference for punitive damages. Id. 
at 1277. The F irst Circuit may have a similar rule. In 
R ow lett v. Anheuser-Busch, Inc., 832 F.2d 194, 205-07 (1st 
Cir. 1987), it declined to adopt an aggravation requirement 
for punitive damages under § 1981, leaving to the trier of fact 
“discretion to determine whether punitive damages are neces­
sary” where punitive damages are authorized for intentional 
violations. Id. at 205. But in M cKinnon v. Kwong W ak  
R estaurant the Circuit quoted and followed the “higher stan­
dard” requirement set forth in the House Report, as noted 
above. See 83 F.3d at 507.

The Seventh Circuit is yet harder to characterize. In 
Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508 (7th Cir.
1986), the court upheld the verdict of intentional discrimina­
tion, finding the case basically a “swearing contest,” id. at 
514, and then upheld the award of punitive damages, but only 
after characterizing it as “a close case,” id. Unless there was 
a higher standard for punitive damages, it is hard to see why 
that case was “close” and the liability issue not. But in 
W illiam son v. H andy Button M achine Co., 817 F.2d 1290 
(7th Cir. 1987), the court appeared to say that punitive 
damages were available for racial discrimination under § 1981 
so long as “the application of the law to the facts at hand was 
so clear at the time of the act that reasonably competent 
people would have agreed on its application.” Id. at 1296.



67a

The position is not unlike that of the panel here, which 
likewise makes limited allowance for a defendant’s mistake on 
an obscure issue of law. I t may be more precise, however, to 
describe 7th Circuit law as in flux; as noted above, Emmel v. 
Coca-Cola Bottling, 95 F.3d 627, 636 (7th Cir. 1996), says that 
an award of punitive damages under § 1981a itself must 
surmount a “higher hurdle” than mere proof of intentional 
discrimination.

*  *  *

With this background in hand, I return to the legislative 
history of § 1981a. I have already noted the language of the 
House Report asserting that § 1981a demands of plaintiff “an 
even higher standard” than simple proof of intentional dis­
crimination. See supra p. 2 above. The panel quotes what 
appear as contradictory glosses on § 1981a urged by a sena­
tor and a representative. While Senator Dole said for him­
self and others that plaintiffs can recover for punitive dam­
ages only in “extraordinarily egregious cases,” see 137 Cong. 
Rec. S 15473 (Oct. 30, 1991) (Interp. Memo of Sen. Dole et 
al.), Representative Edwards said that “[p]unitive damages 
are available under [§ 1981a] to the same extent and under 
the same standards that they are available to plaintiffs under 
42 U.S.C. § 1981.” See 137 Cong. Rec. H 9527 (Nov. 7,1991) 
(Interp. Memo of Rep. Edwards). Compare Maj. Op. at 8-9.

I t is not clear to me that these views are in conflict. In 
light of the circuit split, Representative Edwards’s comment 
is indeterminate. For those circuits that have required 
“egregious” discrimination in the § 1981 context, the two 
observations fit handily. Of course Representative Ed­
wards’s remark may be said to invite us to follow our own 
view of the law derived from § 1981. But that approach 
seems unduly self-referential. We can reconcile the other­
wise disparate items of legislative history (the House Report 
and the Edwards and Dole statements) by following the 
courts that have, in applying § 1981, followed the current 
common law trend that, as to intentional torts, demands for 
punitive damages something substantially more blameworthy 
than the intention required for liability. This approach would



68a

also avoid creating a split with all the circuits that have 
addressed the § 1981a issue.

Because I agree with the panel that the parties agreed to 
have liability tried to the jury, id. at 13-14, I do not dissent 
from the view that the jury verdict was binding as to liability. 
But the remand to the district court should not, in my view, 
include any direction to hold a trial on punitive damages.



69a

APPENDIX C 

In the
United States District Court 

District of Columbia

Civil A. No. 94-1578 (TPJ)

Carole KOLSTAD, Plaintiff, 

v.

AMERICAN DENTAL ASSOCIATION, Defendant.

Jan. 22, 1996

MEMORANDUM AND ORDER

JACKSON, District Judge.

This Title VII employment discrimination case is presently 
before the Court on defendant's post-trial motion for judgment 
as a matter of law, pursuant to Fed.R.Civ.P. 50(b), following 
a jury verdict for plaintiff for $52,718. The plaintiff, in turn, 
moves for the equitable relief of instatement to the position 
for which she was rejected by defendant and for an award of 
her attorney's fees and costs in excess of $175,000. For the 
reasons to follow both motions will be denied.

I .

In the fall of 1992, defendant American Dental 
Association ("ADA") selected one Thomas Spangler over 
plaintiff Carole Kolstad as its new Director of Legislation and 
Legislative Policy (hereinafter "Director of Legislation") in its 
Washington, D.C., office, the position being essentially that 
of chief lobbyist for the ADA before Congress. Both



70a

candidates, then as now employees of the ADA, were deemed 
eligible insofar as possessing the basic qualifications for the 
job. The selecting official was Dr. William Allen, the ADA's 
interim Executive Director in Chicago, who concluded for 
himself (with, however, the unanimous concurrence of the 
incumbent Director of Legislation and all other ADA officials 
in both Washington and Chicago) that Spangler was the better 
qualified of the two and notified both candidates of his 
decision in mid-December, 1992.

Kolstad brought this action under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. s 2000e et seq., in July, 1994, 
alleging that, in selecting Spangler as its new Director of 
Legislation, the ADA had discriminated against her because 
of her sex. She sought instatement to the position of Director 
of Legislation and an award of money equal to the aggregate 
of the difference in the salaries she and Spangler have been 
paid since January of 1993.

The case was tried October 18-26, 1995, to a jury 
comprised of six women and two men. The jury was 
expressly instructed prior to their deliberations that they could 
award plaintiff relief only upon a finding that she had been a 
victim of gender discrimination. They were farther instructed 
that the ADA's failure to treat her application fairly in any 
other respect gave no cause for a finding in her favor. On 
October 26th the jury answered a special interrogatory finding 
that Kolstad had been discriminated against on the basis of her 
sex and awarded her $52,718 in damages representing the pay 
differential.1

1 The Civil Rights Act of 1991, 42 U.S.C. s 1981a(c), affords a right 
to jury trial in Title VII cases for compensatory and punitive damages. 
Equitable relief, however, remains the province of the Court, including 
"backpay." Id. at (b)(2).



71a

II.

As is often true in Title VII cases, no direct evidence of 
sex-based motivation on the pan of the ADA was presented. 
Such direct evidence as the jury heard was all to the contrary; 
specifically, each and every official at the ADA, male and 
female alike, who had knowledge of the position at stake and 
the two candidates, and whether or not involved in the 
selection process, testified that they believed Spangler to be 
the better qualified, and to have been selected for that reason 
alone, without regard to sex.

Moreover, the only circumstantial evidence presented 
favorable to the plaintiff pointed simply to Spangler's 
"pre-selection," i.e., that Spangler was destined to get the job 
no matter who else applied. Although ADA witnesses denied 
it, there is certainly evidence of record from which the jury 
could have found, as it may well have done, that Spangler had 
been perceived by the ADA's hierarchy as the heir-apparent 
to the incumbent Director of Legislation even before the 
incumbent declared his intention to retire. Kolstad was 
regarded as both a late entry and an also-ran from the moment 
she announced her interest in the position. Were pre-selection 
in itself unlawful, the validity of the jury 's verdict would be 
unquestionable.

What was missing, for present purposes, is evidence even 
suggestive of, let alone demonstrating, a gender-related factor 
in the preference exhibited by everyone for Spangler. For 
aught that appears in this record their genders might have 
been reversed, or they of the same sex. That one was male, 
and the other female, is a mere fortuity. There is simply no

Assuming without deciding that the Court might treat the damage 
award as representing "back pay" and thus "advisory” only, the Court 
nevertheless regards it as conclusive under Fed.R.Civ.P. 39(c).



72a

basis other than post hoc ergo propter hoc reasoning to relate 
Kolstad's rejection for the post to her gender: to wit, Kolstad 
is female; she was rejected in favor of a "pre-selected" male 
for a position for which she was qualified; ergo, the reason 
for the "pre-selection" must have been sex.

Plaintiff invokes dictum from the Supreme Court's most 
recent exposition of Title VII law in the case of St. Mary's 
Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 
L.Ed.2d 407 (1993), to the effect that a trier of fact may base 
a finding of discrimination solely on its disbelief of an 
employer's proffered "legitimate" reason for an adverse 
employment decision, although it is not compelled to do so. 
See id., at — , 113 S.Ct. at 2749. Here, Kolstad says, the 
jury obviously did not believe the ADA's witnesses, all of 
whom testified that, fairly comparing their credentials, 
Spangler's recent experience was thought to be more relevant, 
and that, for congressional lobbying purposes, his writing 
style was superior to Kolstad's.

Hicks, however, involved a non-jury trial, and the 
holding of the case merely reaffirmed the Supreme Court's 
seminal formulation of the standard of proof required to 
present a successful Title VII claim found in Texas Dept, o f 
Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 
1089, 1094, 67 L.Ed.2d 207 (1981), namely, that even a 
finding of "pretext," i.e., that an employer's explanation of a 
suspect employment decision is disingenuous, is not 
actionable unless shown actually to have been a pretext fo r  
discrimination. The Hicks court, in reversing a decision of 
the 8th Circuit that had itself overturned the decision of a 
district court, sitting without a jury, in favor of a 
defendant-employer whose professed reasons for dismissing 
the plaintiff-employee the district judge had nevertheless 
refused to credit, asserted that "the Title VII plaintiff at all 
times bears the 'ultimate burden of persuasion.' " Hicks, 509



73a

U.S. at — , 113 S.Ct. at 2749. In other words, "a reason 
cannot be proved to be 'a pretext for discrimination' unless it 
is shown both that the reason was false, and that 
discrimination was the real reason." Id., at — , 113 S.Ct. at 
2752 (emphasis in the original).

At least three appellate cases, from the 6th, 11th and 1st 
Circuits, albeit antedating Hicks, have expressly held that, in 
the absence of proof that a discriminator}" motive underlies an 
adverse employment decision, disbelief of the pretextual 
reasons given for it cannot alone support a finding of 
discrimination if the evidence admits of some other—but not 
unlawful—motivation. See Goostree v. State o f Tennessee, 
796 F.2d 854, 862 (6th Cir.1986); cert, denied, 480 U.S. 
918, 107 S.Ct. 1374, 94 L.Ed.2d 689 (1987); White v. 
Vathally, 732 F.2d 1037, 1040 (1st Cir.1984), cert, denied, 
469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984); Clark 
v. Huntsville City Bd. o f Education, 111 F.2d 525, 529 (11th 
Cir.1983).2 If Hicks were the only, and the most recent 
controlling authority, this Court would be reluctant to 
conclude that the requirement of at least some evidence of an 
illegal discriminatory animus had been abandoned. 
Unfortunately, Hicks is neither.

In a case directly on point, not yet a year old, and 
representing for this Court's purposes an authoritative 
interpretation of Hicks, the D.C.Circuit has held that, after a 
plaintiffs prima facie showing, juries, too (at their election, 
to be sure) may infer unlawful discrimination solely from a 
rejection of a defendant-employer's professedly innocent 
explanations as "pretext." See Barbour v. Merrill, 48 F.3d

2 All cited by Judge Revercomb in Slade v. Billington, 700 F.Supp. 
1134 (D.D.C.1988).



74a

1270, 1277 (D.C.Cir.1995). That, it would appear, is what 
the instant jury has done, and its verdict must therefore be 
allowed to stand.

Were it open to this Court to set aside the verdict under 
Fed.R.Civ.P. 50(c), however, the Court would do so. While 
the evidence may have been sufficient to have convinced the 
jury that Kolstad's candidacy for the position of Director of 
Legislation at ADA was treated cavalierly, and Spangler given 
a preference from the start, it is insufficient to prove to the 
Court’s satisfaction that her sex or his more likely than not 
had anything to do with her rejection. Thus, in the absence 
of any grounds for action asserted other than the statutory 
Title VII claim of sex discrimination--Kolstad having made no 
claim on any other theory-the Court's equitable jurisdiction 
to complete the relief affords no basis for it to order a remedy 
for a wrong that it concludes has not been proven, the jury 's 
verdict notwithstanding.

For the foregoing reasons, therefore, it is, this 22nd day 
of January, 1996,

ORDERED, that the motion of defendant American 
Dental Association for judgment as a matter of law is denied, 
and final judgment for plaintiff Carole Kolstad against the 
defendant in the amount of $52,718 is confirmed; and it is

FURTHER ORDERED, that the motion of plaintiff 
Carole Kolstad for an order of instatement to the position of 
Director of Legislation and an award of her attorney’s fees 
and costs is denied.



75a

United States Court of Appeals
For The District of Columbia Circuit

APPENDIX D

No. 96-7030 
September Term, 1996 

[FILED: MAY 28, 1997]

Carole Kolstad,
Appellant

v.

American Dental Association,
Appellee

Consolidated with 96-7047

BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, 
Randolph, Rogers, Tatel and Garland, Circuit 
Judges

ORDER

The suggestion for rehearing in banc of the American 
Dental Association has been circulated to the full court. The 
taking of a vote was requested. Thereafter, a majority of the 
judges of the court in regular, active service voted in favor of 
the suggestion insofar as it pertains to the issue of punitive 
damages. Accordingly, it is

ORDERED that this matter will be reheard by the court 
sitting in banc. It is



76a

FURTHER ORDERED that the judgment of the court 
filed on March 21, 1997, is vacated as to the issue of punitive 
damages.

A future order will govern further proceedings.

P er Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY:
Robert A. Bonner 
Deputy Clerk

Circuit Judge Garland did not participate in this order.



77a

United States Court of Appeals
For The District of Columbia Circuit

APPENDIX E

No. 96-7030 
September Term, 1996 

[FILED: MAY 28, 1997]

Carole Kolstad,
Appellant

v.

American Dental Association,
Appellee

Consolidated with 96-7047

BEFORE: Wald, Williams and Tatel Circuit Judges

ORDER

Upon Consideration of the petition for rehearing of the 
American Dental Association, filed April 21, 1997, it is

ORDERED that the petition be denied.

P er Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY:
Robert A. Bonner 
Deputy Clerk

Circuit Judge Williams would grant the petition insofar 
as it pertains to the issue of punitive damages.



78a

42 U.S.C. § 1981a. Damages in cases of intentional 
discrimination in employment

(a) Right of recovery 

(1) Civil Rights

In an action brought by a complaining party under section 
706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e- 
5) against a respondent who engaged in unlawful intentional 
discrimination (not an employment practice that is unlawful 
because of its disparate impact) prohibited under section 703, 
704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and 
provided that the complaining party cannot recover under 
section 1981 of this title, the complaining party may recover 
compensatory and punitive damages as allowed in subsection
(b) of this section, in addition to any relief authorized by 
section 706(g) of the Civil Rights Act of 1964, from the 
respondent.

*  *

(b) Compensatory and punitive damages

(1) Determination of punitive damages

A complaining party may recover punitive damages under 
this section against a respondent (other than a government, 
government agency or political subdivision) if the 
complaining party demonstrates that the respondent engaged 
in discriminatory practice or discriminatory practices with 
malice or with reckless indifference to the federally protected 
rights of an aggrieved individual.

APPENDIX F



79a

(2) Exclusions from compensatory damages

Compensatory damages awarded under this section 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.

(3) Limitations

The sum of the amount of compensatory damages 
awarded under this section for future pecuniary losses, 
emotional pain, suffering, inconvenience, mental anguish, loss 
of enjoyment of life, and other nonpecuniary losses, and the 
amount of punitive damages awarded under this section, shall 
not exceed, for each complaining party-

(A) in the case of a respondent who has more 
than 14 and fewer than 101 employees in 
each of 20 or more calendar weeks in the 
current or preceding calendar year, 
$50,000;

(B) in the case of a respondent who has more 
than 100 and fewer than 201 employees in 
each of 20 or more calendar weeks in the 
current or preceding calendar year, 
$100,000; and

(C) in the case of a respondent who has 
more than 200 and fewer than 501 
employees in each of 20 or more 
calendar weeks in the current or 
preceding calendar year, $200,000; 
and

(D) in the case of a respondent who has 
more than 500 employees in each of 20 
or more calendar weeks in the current 
or preceding calendar year, $300,000.



80a

(4) Construction

Nothing in this section shall be construed to limit the 
scope of, or the relief available under, section 1981 of this 
title.

(c) Jury trial

If a complaining party seeks compensatory or punitive 
damages under this section-

(1) any party may demand a trial by jury; and

(2) the court shall not inform the jury of the limitations 
described in subsection (b)(3) of this section.

^  4: ^

(R.S. § 1977A, as added Pub.L. 102-166, Title I, § 102, 
Nov. 21, 1991, 105 Stat. 1072.)