SW Legal studies in Business

Back Pay Damage Calculation Include Chance of Promotion
Description Appeals court upheld the damage award to employees who won a reverse discrimination suit. Since only some of the plaintiffs in the suit would have been promoted in the absence of discrimination, the judge properly calculated damages based on the likelihood that each plaintiff would have been promoted at various times.
Topic Employment Discrimination
Key Words Reverse Discrimination; Affirmative Action; Damages; Lost-Chance Theory
C A S E   S U M M A R Y
Facts The Illinois State Police (ISP) adopted an affirmative action program in the 1970s, setting aside at least half of all openings for minorities and women. In 1992, a class action suit was brought by white male applicants rejected for new positions and white male employees denied promotions who sued the ISP for reverse discrimination. The trial court found for the plaintiffs. The ISP's plan violated the Equal Protection Clause because it was not "narrowly tailored to meet a compelling governmental interest." The court ordered that applicants who had been rejected for hiring could have another chance at being hired, but did not award money damages. Some officers who were not promoted were awarded damages, others were not. The officers who did not get money damages appealed.

Affirmed. The trial judge made proper calculations. It was not certain that applicants would have been hired originally, so allowing the new chance to be hired is appropriate. For officers not promoted, the judge "calculated their back pay by assessing what the chances were that the men would have received a promotion; he awarded back pay proportionally." The request that each of them get full recovery is not justified since not everyone would have been promoted. The judge applied the "lost-chance theory" that recognizes the probabilistic character of many injuries. The judge calculated the likelihood of promotion given the history of each plaintiff and reduced damages by the percent chance that there would have been no promotion. This was the best solution to a difficult issue.

Citation Bishop v. Gainer, 272 F.3d 1009 (7th Cir., 2001)

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