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.

Similar Articles
Relevancy Powered by MondaqAI
Mayer Brown
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Mayer Brown
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions