United States: Ninth Circuit To Hear Title VII Punitive Damages Case En Banc

Last Updated: June 13 2014
Article by Evan M. Tager

Keywords: Ninth Circuit, Title VII, Punitive Damages Case, ASARCO

It's not often that federal courts of appeals agree to decide punitive damages cases en banc, so Arizona v. ASARCO, which the Ninth Circuit will rehear en banc on June 18, strikes us as worthy of attention.  In fact, because the case potentially implicates a number of very important issues in the law of punitive damages, my colleagues and I plan to do a series of posts on the case.

So as not to bury the lead, let me say at the outset that I think that the parties and the original Ninth Circuit panel are looking at the issues in this case through the wrong lens.  I'll explain what I mean later in the post.

The facts of the case are fairly straightforward.  Angela Aguilar worked in a variety of capacities at an ASARCO mining facility for a few months in 2006.  She alleges that during her time there, she was subjected to a sexually hostile environment as a result of three unrelated series of incidents.

First, she alleges that she was subjected to unwanted advances by a fellow employee over the course of the roughly one-month period during which they worked together.  Second, she alleges that she was the target of pornographic graffiti in a portable toilet that had been installed for her use because the facility lacked a bathroom for women.  Third, she contends that a supervisor, who was known for being boorish toward all subordinates, was harsher to her than he was to male employees.

Aguilar and the State of Arizona each filed actions against ASARCO alleging hostile environment, retaliation, and constructive discharge.  A jury rejected the retaliation and constructive-discharge claims, but found ASARCO liable under Title VII for creating a hostile environment.  The jury found that Aguilar suffered no actual damages, however, so it awarded $1 in nominal damages, plus punitive damages of $868,750.

ASARCO filed post-trial motions, contending among other things that, even if reduced to the maximum permitted under Title VII—$300,000—the punitive award was unconstitutionally excessive.  The district court concluded that the amount awarded by the jury was not unconstitutionally excessive, and accordingly simply reduced the punitive damages to $300,000.  On appeal, a divided panel of the Ninth Circuit held that a $300,000 punishment is unconstitutionally excessive, principally because of the 300,000:1 ratio of punitive to compensatory damages.  The majority ordered a remittitur of the punitive damages to $125,000, the highest amount that any court had previously approved in a case in which the compensatory damages were $1.

Both sides sought rehearing en banc—ASARCO contending that a ratio of 125,000:1 remains unconstitutionally excessive, and Aguilar and Arizona contending that a punishment at the cap can't be unconstitutionally excessive.

As alluded to above, I think that the parties, the district court, and the Ninth Circuit panel all have missed the analytical mark.  That is because the Constitution comes into play in a case governed by federal law only if Congress constrained the courts' common-law authority to reduce a punitive award to an amount the court considers not to be excessive, which Congress did not do in Title VII.

As the Second Circuit has recently observed, at least insofar as claims governed by federal law are concerned, there is no need to invoke the Constitution because federal courts have supervisory authority to ensure that punitive damages awards are not excessive—"considerably more supervisory authority than the Supreme Court has over the decisions of the highest courts of a state" under the Due Process Clause.  "It therefore follows that a degree of excessiveness less extreme than 'grossly excessive' will justify a finding that supports imposing a remittitur" in cases brought under federal law—including cases that may be subject to a cap.

In other words, because this case arises under federal law—i.e., Title VII—the focus shouldn't be on the Constitution, but on whether the punitive award against ASARCO is excessive under federal common law.  Indeed, the Seventh Circuit employed just such an approach in a Title VII case that predated the Supreme Court's articulation of the constitutional excessiveness guideposts.  As the court explained in ruling that the Title VII cap does not limit the power of federal courts to reduce awards to amounts below the cap:

When Congress permitted, for the first time, awards of compensatory and punitive damages in Title VII cases, it was concerned with keeping those damages under reasonable control.  It did not want Title VII awards, especially of punitive damages, to be excessive as they can be in other areas of the law.

It follows, the court reasoned, that not every punitive award that is 100% of the statutory ceiling is insulated from reduction under the statute.  "It would seem logical," instead, "that the maximum permissible award . . . should be reserved for egregious cases."

In other words, courts confronted with the question "whether 100 percent of the available damages [under Title VII] can be soaked up by a punitive damage award" must place the defendant's conduct on a spectrum.  If the conduct is among the worst covered by the statute, a punishment at or near the cap would be appropriate.

But conduct that is not at the high end of the range of punishable conduct cannot support a punitive exaction at or near the cap.  In the case before the Seventh Circuit panel, for example, a punitive award at the cap could not be justified, "given the much more egregious nature of some sex discrimination cases"—for example, the legion of 'quid pro quo' sexual harassment cases."

Notice that this approach does not require courts to track through the five reprehensibility factors identified in State Farm, however inapt they may be for employment cases.  Instead, the focus is on comparing the conduct in the case before the court to other conduct punishable under the statute.  Using the facts of Arizona v. ASARCO, I will illustrate what I mean in a forthcoming post.

Originally published June 1, 2014.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.