Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law:

1. The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts have been prone to enter a monetary award of front pay, rather than ordering that the employee be re-hired, but the Tenth Circuit held that reinstatement should be the “preferred remedy” and should be ordered absent “extreme hostility” between the parties. Whether extreme hostility exists should be gauged by asking whether there are “objective” reasons that would make it “unworkable.” Objective reasons do not depend on the parties’ own subjective feelings, especially not the defendants’. For example, in the case before it, the court rejected as “far short” of sufficient the defendants’ argument that the litigation tactics employed by the plaintiff and their attorney in the case had been “unfair.” Likewise coworker dislike of the plaintiff is not generally enough to establish “extreme hostility,” nor is management’s “speculating in general and conclusory manner” that the plaintiff would not be welcomed back.
2. The court clarified that an order of reinstatement does not block an award of front pay. Since back pay is awarded for the period of time from wrongful termination until judgment is entered, front pay should be awarded for the gap going forward between the period of time starting with the entry of judgment until reinstatement.
3. The court held that, when determining the proper remedy, a plaintiff’s award should not be docked for failure to mitigate if the plaintiff turned down work that was not “substantially equivalent.” While the defendant need not prove the plaintiff turned down a job that was “virtually identical,” the defendant must at least prove the turned-down job was “substantially equivalent,” in order to terminate liability for lost pay and reinstatement.