The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change

William & Mary Law Review, Vol. 50, 2008

62 Pages Posted: 29 Sep 2008 Last revised: 14 Apr 2011

See all articles by Joseph Seiner

Joseph Seiner

University of South Carolina School of Law


Punitive damages were described by one early court as "an unsightly and an unhealthy excrescense." While the views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter Congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in discrimination cases brought under Title VII. Kolstad has only generated more confusion concerning the proper standard for exemplary relief, and recent district and appellate court decisions reflect this uncertainty.

Attempting to determine the impact of punitive damages in Title VII cases after Kolstad, I performed an analysis of all federal district court decisions during the calendar years of 2004 and 2005. The study examined over six hundred relevant district court opinions issued during this time frame. Of these cases, there were only twenty-four district court decisions either awarding punitive damages under Title VII or upholding a jury's award of punitive relief. An additional study performed during this time frame further revealed that slightly over 17% of those Title VII cases that went to a jury during this time frame resulted in a punitive damage award by the jury, and approximately 29% of those juries that found in favor of the plaintiff also awarded punitive damages.

This paper explores the basic foundations of punitive damages in the American judicial system, and examines the goals of providing this form of relief in employment discrimination cases. While public perception suggests that punitive damages have been instrumental in helping to eradicate employment discrimination, the numerical data paint a different picture. After analyzing this data, this paper suggests one alternative way of better achieving the original deterrent purpose behind the addition of punitive damages to Title VII. The paper proposes a three-part framework for analyzing all cases of intentional discrimination and recommends adopting a new scheme for remedial relief under Title VII. The paper then explores the implications of adopting the proposed approach and examines how the proposal fits within the contours of the academic scholarship. The paper concludes by urging that the Congressional intent of deterring unlawful discrimination can more properly be achieved through the proposed form of relief.

Keywords: employment discrimination, punitive damages

Suggested Citation

Seiner, Joseph A., The Failure of Punitive Damages in Employment Discrimination Cases: A Call for Change. William & Mary Law Review, Vol. 50, 2008, Available at SSRN:

Joseph A. Seiner (Contact Author)

University of South Carolina School of Law ( email )

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Columbia, SC 29208
United States
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