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6 PJI 4.3 | Third Circuit (US)
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6 PJI 4.3 | SECTION 1981 | BACK PAY - FOR ADVISORY OR STIPULATED JURY

If you find that [defendant-employer] intentionally discriminated against [plaintiff] in [describe employment action] [plaintiff], then you must determine the amount of damages that [defendant's] actions have caused [plaintiff]. [Plaintiff] has the burden of proving damages by a preponderance of the evidence.

You may award as actual damages an amount that reasonably compensates [plaintiff] for any lost wages and benefits, taking into consideration any increases in salary and benefits, including pension, that [plaintiff] would have received from [defendant] had [plaintiff] not been the subject of [defendant’s] intentional discrimination.

Back pay damages, if any, apply from the time [plaintiff] was [describe adverse employment action] until the date of your verdict.

You must reduce any award by the amount of the expenses that [plaintiff] would have incurred in making those earnings.

If you award back pay, you are instructed to deduct from the back pay figure whatever wages [plaintiff] has obtained from other employment during this period. However, please note that you should not deduct social security benefits, unemployment compensation and pension benefits from an award of back pay.

[You are further instructed that [plaintiff] has a duty to mitigate [his/her] damages -- that is [plaintiff] is required to make reasonable efforts under the circumstances to reduce [his/her] damages. It is [defendant's] burden to prove that [plaintiff] has failed to mitigate. So if [defendant] persuades you, by a preponderance of the evidence, that [plaintiff] failed to obtain substantially equivalent job opportunities that were reasonably available to [him/ her], you must reduce the award of damages by the amount of the wages that [plaintiff] reasonably would have earned if [he/she] had obtained those opportunities.]

[Add the following instruction if the employer claims “after-acquired evidence” of misconduct by the plaintiff:

[Defendant-employer] contends that it would have made the same decision to [describe employment decision] [plaintiff] because of conduct that [defendant] discovered after it made the employment decision. Specifically, [defendant] claims that when it became aware of the [describe the after-discovered misconduct], [defendant] would have made the decision at that point had it not been made previously.

If [defendant] proves by a preponderance of the evidence that it would have made the same decision and would have [describe employment decision] [plaintiff] because of [describe after-discovered evidence], you must limit any award of back pay to the date [defendant] would have made the decision to [describe employment decision] [plaintiff] as a result of the after-acquired information. ]

COMMENT Back pay awards are available against an employer under Section 1981. See Johnson v. Ry Express Agency, Inc., 421 U.S. 454, 459 (1975). A backpay award under Section 1981 is not restricted to the two years specified for backpay recovery under Title VII. Id.

An award of back pay is an equitable remedy; thus there is no right to jury trial on a claim for back pay. See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir. 1984) (noting that a claim for back pay is one for equitable relief, but that the plaintiff nonetheless had a right to jury trial on his claims for compensatory damages); Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001) (noting that front pay and back pay are equitable remedies).

An instruction on back pay is nonetheless included because the parties or the court may wish to empanel an advisory jury — especially given the fact that in most cases the plaintiff will be seeking compensatory damages and the jury will be sitting anyway. See Fed. R. Civ. P. 39(c). Alternatively, the parties may stipulate to a jury determination on back pay, in which case this instruction would also be appropriate. Instruction 6.4.1, on compensatory damages, instructs the jury in such cases to provide separate awards for compensatory damages, back pay, and front pay.

For further commentary on back pay, see the Comment to Instruction 5.4.3.

(Last Updated March 2018)

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Sincerely,



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