TABLE OF AUTHORITIES................................................................... iii

STATEMENT OF INTEREST................................................................. 1

STATEMENT OF THE ISSUES.............................................................. 2

STATEMENT OF THE CASE................................................................. 3

A. Statement of the Facts................................................................... 3

1. Sexual harassment of Corbin and her co-worker................. 5

2. Corbin’s response to the harassment..................................... 9

B. District Court’s Decision............................................................. 13

ARGUMENT.......................................................................................... 16

I. Punitive damages awards below Title VII’s statutory caps necessarily comport with due process, obviating the need to apply the Gore factors anew in each case....................................................... 16

II. Alternatively, if this Court should find that Gore applies, the district court held correctly that the jury’s $50,000 punitive damages award comports with due process under Gore................................... 30

A. The graphic sexual harassment of Corbin, a teenager, was reprehensible...................................................................................... 30

B. The 38:1 ratio is within constitutional limits............................ 32

C. The $50,000 award is less than available sanctions in comparable cases................................................................................ 37

CONCLUSION...................................................................................... 38

CERTIFICATE OF COMPLIANCE.................................................... C-1

CERTIFICATE OF SERVICE.............................................................. C-2

DESIGNATION OF RELEVANT LOWER COURT DOCUMENTS C-3

TABLE OF AUTHORITIES

Cases

Abner v. Kan. City S. R.R. Co., 513 F.3d 154 (5th Cir. 2008).... 18, 21, 25, 27

Argentine v. United Steelworkers of Am., AFL-CIO, 287 F.3d 476 (6th Cir. 2002)..................................................................................... 34

Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014) (en banc)....................................................................................................... passim

Bach v. First Union Nat'l Bank, 486 F.3d 150 (6th Cir. 2007).......... 35, 36

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).......................... passim

Bridgeport Music, Inc. v. Justin Combs Publ’g, 507 F.3d 470 (6th Cir. 2007)......................................................... 35, 36

Bryant v. Jeffrey Sand Co., 919 F.3d 520 (8th Cir. 2019)........................ 34

Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001)... 18, 23, 28

Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262 (10th Cir. 2000)............................................................................................................. 35

EEOC v. Fed. Express Corp., 513 F.3d 360 (4th Cir. 2008).................... 22

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999)..... 29, 37

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)............................ 20, 24

Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558 (6th Cir. 2019)............ 29

Jeffries v. Wal-Mart Stores, Inc., 15 F. App’x 252 (6th Cir. 2001)... 17, 34

Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).................................. 25

Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004)............................... 18, 25

Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003)(en banc).................................................................................................... 26

Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).......................... 21, 24

Romano v. U-Haul Int’l, 233 F.3d 655 (1st Cir. 2000)........................... 23

Romanski v. Detriot Entm’t, LLC, 428 F.3d 629 (6th Cir. 2005)...... 34, 37

Sommerfield v. Knasiak, 967 F.3d 617 (7thCir. 2020)............................ 28

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)....................................................................... passim

Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001).................. 32, 35

Tisdale v. Fed. Express Corp., 415 F.3d 516 (6th Cir. 2005).. 17, 23, 26, 37

Turic v. Holland Hosp., Inc., 85 F.3d 1211 (6th Cir. 1996).................... 30

TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443 (1993)........................ 22

United States v. Bowers, 594 F.3d 522 (6th Cir. 2010)............................. 3

Statutes

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq................................................................................. 1, 12

The Civil Rights Act of 1991, 42 U.S.C. § 1981a........................... passim

42 U.S.C. § 1981a(a)............................................................................... 24

42 U.S.C. § 1981a(b)............................................................................... 24

42 U.S.C. § 1981a(b)(1)..................................................................... 16, 29

42 U.S.C. § 1981a(b)(3).................................................................... passim

42 U.S.C. § 1981a(b)(3)(D)..................................................................... 16

42 U.S.C. § 12117(a)............................................................................... 23

Other Authorities

Joseph A. Seiner, Punitive Damages, Due Process, and Employment Discrimination, 97 Iowa L. Rev. 473 (2012)....................................... 21

Federal Rule of Appellate Procedure 29(a)........................................... 1

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with administering and enforcing federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, which sets out the standard for awarding punitive damages and imposes statutory caps.

This case raises two important legal issues. The first is whether punitive damages awards below Title VII’s statutory caps necessarily comport with due process, rendering superfluous the standard from BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), governing this issue in the state law punitive damages context. The second is, if Gore applies, whether the $50,000 Title VII punitive damages award here satisfies the Gore standard. Because of the importance of these issues to the effective enforcement of Title VII, EEOC offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. Whether Title VII punitive damages awards below the statutory caps, 42 U.S.C. § 1981a(b)(3), necessarily comport with due process, obviating the need for additional constitutional scrutiny under BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

2. Alternatively, whether the $50,000 punitive damages award for sexual harassment of the seventeen-year-old plaintiff satisfied Gore’s three guideposts—reprehensibility, ratio to compensatory damages, and comparison to sanctions in comparable cases—where her adult male co-worker repeatedly commented about her breasts and buttocks, said “multiple times” that he wanted to “bend [her] over the table” and have sex with her, and regularly slapped her buttocks, and where SNS ignored her repeated complaints.

STATEMENT OF THE CASE

A. Statement of the Facts

We recite the facts from the trial testimony in the light most favorable to Corbin. See generally United States v. Bowers, 594 F.3d 522, 524 (6th Cir. 2010) (reviewing “facts uncovered at trial … in the light most favorable to the jury’s verdict”).

Steak N Shake (“SNS”) operates ‘50s-style diner restaurants. Because SNS does not serve alcohol, PageID#1400/TrialTranscript(“Tr.”)/R.87, minors could work as servers. In July 2015, Hannah Corbin began working as a server at SNS’s restaurant in Newark, Ohio. PageID#1400-01/Tr./R.87. She had just turned seventeen. PageID#1393/Tr./R.87. She worked about twenty-five hours per week greeting customers, serving food, refilling drinks, and cleaning tables. PageID#1401/Tr./R.87. Corbin “loved serving.” PageID#1400/Tr./R.87.

The restaurant’s General Manager, Michael Simon, had worked at SNS for fifteen years. PageID#1407/Tr./R.87; PageID#1657/Tr./R.88. The Service Manager, Sean McLeish, who was “close to 40, mid 30s,” interviewed Corbin. PageID#1405-06/Tr./R.87. After the interview, a server told Corbin that McLeish would “definitely” hire her because she was a “pretty blonde” and McLeish “only hires pretty blonde females.” PageID#1406-07/Tr./R.87.

Corbin worked with Will McCann, Robert “Bubba” Travis, Logan Brown, and Forrest Priest, who were in their twenties. PageID#2274/Order/
R.101; PageID#1617,1626/Tr./R.88. She usually worked with McCann or Travis. PageID#1410/Tr./R.87. Travis and Brown worked on the grill. PageID#1109/Tr./R.86; PageID#976/Tr./R.88. McCann was “grill cook/step-in manager”; he wore a colored shirt, instead of a white shirt, indicating he was in management. PageID#1407-08/Tr./R/87.

These men were friends outside of work, attending parties together, including ones hosted by McLeish. PageID#1413-14/Tr./R.87. McCann was dating another SNS manager, Kayla Dehmann. PageID#1112/Tr./R.86. McCann’s mother, Brandi Genzen, was a server and set employees’ schedules. PageID#1103/Tr./R.86.

1. Sexual harassment of Corbin and her co-worker

Within a week or two of Corbin’s starting work, McCann, Priest, and Brown began untying her apron and touching her buttocks. PageID#1415-16/Tr./R.87. Corbin then tied her apron in the front, but McCann just “got more aggressive” and “would always try to smack [her] butt.” PageID#1416/Tr./R.87. McCann smacked her buttocks “pretty close” to three to five times per day. PageID#1548/Tr./R.88.

“At least 75 percent of the time” Corbin worked, McCann talked about Corbin’s “nice boobs” and “big butt” and said “how thick [she] was,” meaning “very well figured, well-rounded, nice boobs, nice butt.” PageID#1418-19/Tr./R.87. McCann said “he would tap that” (id.), an evident reference to having sex, and told Corbin, “I wish I could bend you over that table and fuck you”; he made this kind of comment “multiple times.” PageID#1419-21/Tr./R.87. Corbin’s mother testified that Corbin told her about these comments and being “grabbed on the behind and smacked” as early as October 2015. PageID#1194/Tr./R.87. McCann also started a false rumor that he and Corbin were having sex. PageID#1421/Tr./R.87.

Corbin told McCann to stop his sexual comments, and to stop touching her, “[m]ultiple times.” PageID#1424/Tr./R.87. Once, after McCann smacked her buttocks and Corbin said, “[d]on’t touch me,” he rubbed her shoulders and said, “Relax. It’s not that big of a deal.” PageID#1428-29/Tr./R.87.

Corbin complained to McLeish about the comments and buttocks-smacking. PageID#1425/Tr./R.87; PageID#1433/Tr./87. McLeish witnessed the comments and buttocks-smacking more than once, but instead of doing anything to stop it, he gave a “creepy smirk” and walked away. PageID#1425/Tr./R.87. When Corbin complained about McCann’s sexual comments and buttocks-smacking to Dehmann, she responded, “Will wouldn’t do that.” PageID#1429,1433/Tr./R.87. Simon participated in the harassment, once commenting to McCann about the “nice sight” when Corbin bent over to pick up boxes. PageID#1426-27/Tr./R.87.

Although McCann was the primary harasser, Travis and Brown also made sexual comments. Id. After learning that Corbin’s boyfriend was African-American, Travis—wearing black pants—said more than once that he was “black from the waist down” and could “hit it because [she] would enjoy it more.” PageID#1430/Tr./R.87.

In January 2016, sixteen-year-old Maddie Dean started as a server. PageID#1099-1100/Tr./R.86. She and Corbin worked together “pretty much every shift.” PageID#1104/Tr./R.86. McCann and Priest told Corbin that they had a bet about who would “have sex with” Dean first, which “scared” Corbin. PageID#1421-22/Tr./R.87.

According to Dean, McCann and Travis said how “thick” Corbin was, “how nice her butt looked,” how “big” her breasts were, and that they “want[ed] to bend her over the table and eff her” and “hit that.” PageID#1115-16/Tr./R.86. “Just about every shift” Dean saw McCann smack Corbin’s buttocks. PageID#1124/Tr./R.86. “It was like they couldn’t resist … touching her; that’s how bad it was.” Id. McCann also smacked Dean’s buttocks, as Corbin saw. PageID#1421/Tr./R.87. They “would say they wanted to bend both” Corbin and Dean “over at the same time and eff us.” PageID#1124/Tr./R.86. McCann and Travis made the “bending over” comments approximately “three to four times a week.” PageID#1153/Tr./R.86.

Once when Corbin and Dean were standing together, McCann slapped “both of [their] butts … so hard” that Corbin “turned around … ready to punch him.” PageID#1424/Tr./R.87. The slap “left a welt on [Dean’s] butt, and it brought tears to [her] eyes because of how bad it hurt.” PageID#1121/Tr./R.86. McLeish witnessed it, and Dean “reported it to him.” Id. McLeish said he would tell Simon, but no investigation occurred and the harassment continued. Id.

In March, McCann “cornered [Dean] in the walk-in freezer.” PageID#1117/Tr./R.86. He “pushed his body against [Dean], and … groped both [her] breasts,” saying “how nice and soft and how big” they were. Id. Dean was traumatized. Id.^{^[2]} She reported this to McLeish, who said he would tell Simon, but “it was swept under the rug.” PageID#1118/Tr./R.86. Dean was told that because “there was no cameras there,” there was “nothing that [she] could do” about it. PageID#1117/Tr./R.86. Dean’s mother reported the incident to Simon, but SNS still took no action. PageID#1126/Tr./R.86.

Dean reported other harassment to management at least four times. PageID#1119/Tr./R.86. She complained to Dehmann, who would “shrug” and “walk away.” Id. McLeish witnessed some of the harassment but would “smirk and walk in the other direction.” Id. “[M]ultiple times” Dean told McCann and Travis “to stop,” and she heard Corbin tell them to stop. PageID#1119-20/Tr./R.86. Dean explained, “[w]e were 16 and 17 … and they were way older than us. We were creeped out … [I]t was very uncomfortable.” PageID#1120/Tr./R.86.

2. Corbin’s response to the harassment

In March 2016, Corbin called the corporate hotline and reported that she had been “sexually harassed.” PageID#1434/Tr./R.87. She provided her name, store number, and employee number. Id. She was told someone would follow up, but no one ever did. Id.

Corbin explained that she did not quit because “it was a dream job” for a teenager. PageID#1432/Tr./R.87. As a teen, she “couldn’t serve anywhere else,” and otherwise “was going to work at McDonald’s.” Id.

By the end of March, however, Corbin entered a message in SNS’s messaging system stating that she “was looking for another job” and “would like to go on pick up shifts only.” PageID#1444/Tr./R.88. By working pick-up shifts—i.e., covering someone else’s shift—she could “look at the schedule” and avoid working with McCann. Id. On April 2, Corbin reported to work for a pick-up shift. PageID#1445/Tr./R.88. When she had trouble clocking-in, Simon told her that Genzen thought she had quit. PageID#1446/Tr./R.88. Corbin went to talk to Genzen. PageID#1448/Tr./R.88. They pulled up Corbin’s SNS system message, which Corbin read aloud to show that she had requested pick-up shifts. Id. Genzen told Corbin “not to be smart with her” and then, while walking back to Simon, said she would “kill[] a motherfucker.” PageID#1448-49/Tr./R.88. Corbin, upset, said that she would call her mother, to which Genzen replied, “Call your mom. I’ll slap a bitch.” PageID#1449/Tr./R.88. Corbin, crying, felt “scared.” PageID#1449-50/Tr./R.88.

Corbin’s mother arrived, and they met with Genzen and Simon. PageID#1451/Tr./R.88. Corbin said to Genzen, “Your son [McCann] harasses and touches me.” PageID#1374/Tr./R.87. Genzen replied, “[t]hat’s ridiculous …. [W]e have already had Will sign a contract saying that he would no longer touch the females who worked there.” PageID#1455/Tr./R.88. Corbin and her mother left; Corbin soon found a cashier position at Dick’s Sporting Goods. PageID#1457,1470/Tr./R.87.

Simon reported Corbin’s allegations to his boss, but SNS never disciplined McCann. PageID#1335,1377/Tr./R.87. McCann quit in May 2016, but SNS later rehired him and he continued to work with minor females. PageID#1333-35/Tr./R.87. Travis still works at SNS. PageID#1336/Tr./R.87.

Corbin’s mother said that after working at SNS, she “saw a light burn out in Hannah.” PageID#1206/Tr./R.87. She became “very withdrawn” and “insecure,” had fewer friends, and lost thirty pounds. PageID#1205-06/Tr./R.87. Corbin’s father described her as “vibrant, confident” before working at SNS, but she changed “drastically” while working at SNS, becoming “very anxious” and “worried.” PageID#1257-58/Tr./R.87.

Corbin stated that she lost weight because she “felt like [she] should be thinner and that maybe they wouldn’t say those things to [her.]” PageID#1459/Tr./R.88. She withdrew from her boyfriend and experienced anxiety. PageID#1459-60/Tr./R.88. Although earlier in her life her parents had divorced and gone through bankruptcy, the anxiety and weight loss from working at SNS were different. PageID#1460-61/Tr./R.88. Corbin later suffered a panic attack when McCann showed up one night at another restaurant where she was working. PageID#1473-74/Tr./R.88.

Corbin filed suit under Title VII, 42 U.S.C. §§ 2000e et seq., alleging sexual harassment.[3] The case was tried to a jury. Corbin, her parents, and Dean testified. SNS employees also testified, but McCann, Dehmann, and McLeish (who was in prison) did not. PageID#1673/Tr./R.88. After deliberating just over an hour, the jury returned a verdict in Corbin’s favor on her co-worker sexual harassment claim, awarding her $308 in back pay and $1,000 in compensatory damages. PageID#2142-43/Tr./R.92. The jury found in SNS’s favor on the supervisor sexual harassment claim. Id. After hearing additional evidence, including that SNS’s net worth is $500-$600 million, the jury awarded $50,000 in punitive damages. PageID#2149,2165/Tr./R.92.

SNS moved under Rule 59(e) to alter or amend the judgment to remit the punitive damages award, arguing that it violated due process. PageID#2273-74/Order/R.101.

B. District Court’s Decision

The district court denied the motion, holding that the $50,000 punitive damages award was constitutional. PageID#2273-77/Order/R.101. The court applied Gore’s three guideposts for determining whether a punitive damages award under state common law violates due process. PageID#2274/Order/R.101. As to the first guidepost, the court concluded that SNS’s conduct was reprehensible. Id. Relying on State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419 (2003), the court found Corbin’s “vulnerability” the most “compelling evidence” of reprehensibility. PageID#2275/Order/R.101. It noted that, while Corbin was a seventeen-year-old server, McCann was an adult with “a position of higher authority.” Id. Other adult male co-workers and managers joined in the harassment rather than reporting it, and Dehmann disbelieved Corbin’s complaints. PageID#2274-75/Order/R.101. When Corbin accused McCann of harassment, Genzen threatened her. PageID#2275/Order/R.101. Corbin knew of Dean’s harassment, including the “[p]articularly egregious” walk-in freezer incident. PageID#2274-75/Order/R.101. Corbin’s hotline complaint also “went nowhere.” PageID#2275/Order/R.101. In short, the court said, SNS permitted Corbin and Dean to be “regularly harassed by older male employees” and management chose “to protect the harasser rather than take action to protect the victims.” Id.

As to Gore’s second factor, the district court held that the “38:1 ratio of punitive damages to back pay and compensatory damages is within constitutional limits.” PageID#2276/Order/R.101. While the ratio was in the double digits, the court observed, the Supreme Court has eschewed “‘a simple mathematical formula’” for determining “‘the constitutional line.’” PageID#2275/Order/R.101 (quoting Gore, 517 U.S. at 582). Also, it noted, the Supreme Court has said that higher ratios may be constitutional where egregious acts cause minimal economic damage, or where the value of noneconomic harm is hard to quantify. PageID#2276/Order/R.101. Such was the case here, the court found. Corbin was in high school, worked limited hours for a low wage, quickly found a new job, and had other life stressors, making it unsurprising that the jury awarded only $308 in back pay and $1,000 for mental and emotional distress. Id. In the court’s view, the jury “meant to send a message” to SNS “that it should be punished for its failure to prevent and respond appropriately to sexual harassment of minor female employees.” Id.

Finally, the court held that the jury’s verdict satisfied the third Gore guidepost: comparison to sanctions in comparable cases, which requires “‘substantial deference to legislative judgments concerning appropriate sanctions for the conduct.’” PageID#2276/Order/R.101 (quoting Gore, 517 U.S. at 583). Because it fell well below Title VII’s $300,000 statutory cap for an employer of SNS’s size, the award was not unreasonably excessive in light of SNS’s net worth. PageID#2277/Order/R.101. It also fell in line with Sixth Circuit cases upholding sizable punitive damage awards with no, or minimal, compensatory damages. Id.

ARGUMENT

I. Punitive damages awards below Title VII’s statutory caps necessarily comport with due process, obviating the need to apply the Gore factors anew in each case.

As amended by Section 102 of the 1991 Civil Rights Act, Title VII allows a jury to award punitive damages if the plaintiff shows that the employer engaged in unlawful intentional discrimination “with malice or with reckless indifference to [her] federally protected rights.” 42 U.S.C. § 1981a(b)(1). If a plaintiff meets this high standard, the statute caps the amount of damages based on the company’s size, ranging from $50,000 to $300,000. See 42 U.S.C. § 1981a(b)(3). For an employer of SNS’s size, with 500+ employees, that amount is $300,000. 42 U.S.C. § 1981a(b)(3)(D).

Here, the jury awarded $50,000 in punitive damages, far below the applicable $300,000 statutory cap. SNS nevertheless challenged the constitutionality of the award under Gore, which set out three guideposts for assessing whether a state law punitive damages award violates due process. The district court applied Gore, holding that the award was constitutional under each guidepost. In doing so, it followed this Court’s approach in other cases, where this Court has apparently assumed—without squarely addressing the issue—that even punitive damages awards below Title VII’s statutory caps are subject to constitutional scrutiny. See, e.g., Tisdale v. Fed. Express Corp., 415 F.3d 516, 534-35 (6th Cir. 2005) (rejecting employer’s argument that $100,000 punitive damages award was grossly excessive under Gore); Jeffries v. Wal-Mart Stores, Inc., 15 F. App’x 252, 266 (6th Cir. 2001) (applying Gore and affirming $425,000 punitive damages award under Title VII and state law).

In the Commission’s view, this approach is at odds with Gore and other Supreme Court precedent. Where, as here, a federal statute imposes caps that themselves comport with due process, application of Gore’s guideposts is redundant because any punitive damages award under the caps is perforce constitutional. Accordingly, we urge this Court to join other circuits in recognizing that “punitive damages awards conferred under § 1981a comport with due process.” Arizona v. ASARCO LLC, 773 F.3d 1050, 1060 (9th Cir. 2014) (en banc); see also Abner v. Kan. City S. R.R. Co., 513 F.3d 154, 164 (5th Cir. 2008) (“[T]he three-factor Gore analysis is relevant only if the statutory cap itself offends due process. It does not[.]”); cf. Lust v. Sealy, Inc., 383 F.3d 580, 590 (7th Cir. 2004) (when Congress sets a “low” statutory limit on damages that may be awarded, the ratio of punitive damages to compensatory damages is not a constitutional concern); Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001) (“We hold that in Title VII cases … damages may be awarded within the limits of the statutory caps if the defendant has been shown to have acted with a state of mind that makes punitive damages appropriate,” even without compensatory or nominal damages; not considering due process challenge).

In Gore, the Supreme Court considered whether a $2 million state law punitive damages award was so grossly excessive as to violate the Fourteenth Amendment’s Due Process Clause. 517 U.S. at 562-63. The defendant was a car dealership that had knowingly failed to tell an owner that portions of his new car had been repainted, resulting in actual damages of $4,000, but a $2 million punitive damages award. The Court noted that constitutional considerations require defendants to “receive fair notice not only of the conduct that will subject [them] to punishment but also of the severity of the penalty that a State may impose.” Id. at 574. The Court then set out three guideposts—reprehensibility, ratio to actual harm, and comparison of sanctions to other cases—that inform the determination of fair notice, which, in turn, determines whether an award violates due process. See id. at 574-85; see also State Farm, 538 U.S. at 418 (summarizing Gore factors and reversing $145 million punitive damages award under state law). Applying these guideposts, the Court held that the $2 million punitive damages award was grossly excessive. Gore, 517 U.S. at 574-86.

Nothing in Gore suggests that its analysis applies where, as here, a federal statute sets out a standard for awarding punitive damages and contains its own carefully crafted cap on damages. Rather, Gore’s guideposts were intended to “illuminate ‘the character of the standard that will identify unconstitutionally excessive awards’ of punitive damages” under state law. 517 U.S. at 568. The Supreme Court explained as much in Exxon Shipping Co. v. Baker, 554 U.S. 471, 502 (2008), where it said that its due process cases, including Gore, “all involved awards subject in the first instance to state law.” 554 U.S. at 502. Because there was no federal law in Gore delineating what size punitive damages awards might be excessive, due process review was necessary. Id. at 501-02. But here, the Exxon Court said, “federal maritime common law authority … precedes and should obviate any application of the constitutional standard.” Id. at 502.

As in Exxon, federal law—embodied in Title VII—“precedes and should obviate any application of the constitutional standard.” Id. Section 1981a delineates the standard for imposing punitive damages as well as the maximum amount that can be awarded. See supra at 15-16. This satisfies any constitutional concerns, negating the need for additional constitutional scrutiny under Gore’s factors. See Abner, 513 F.3d at 164 (“[T]he combination of the statutory cap and high threshold of culpability for any award confines the amount of the award to a level tolerated by due process.”); see also Joseph A. Seiner, Punitive Damages, Due Process, and Employment Discrimination, 97 Iowa L. Rev. 473, 491, 492 (2012) (“There can be little doubt after Exxon … that the courts need not reach the due process issues raised in Gore and State Farm when addressing employment discrimination claims brought under Title VII” because “Title VII case law has created a federal scheme that satisfies any constitutional concerns over the excessiveness of punitive awards.”). Thus, § 1981a satisfies the Supreme Court’s requirement that punitive damages be “reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991).

At a minimum, this Court should recognize that “rigid application of the Gore guideposts is less necessary or appropriate” because of Title VII’s “robust statutory scheme.” ASARCO, 773 F.3d at 1056. As the Ninth Circuit has observed, the “general constitutional concerns underlying Gore are addressed by … § 1981a.” Id. at 1057. Specifically, the Court explained in Gore that “[e]lementary notions of fairness enshrined in our constitutional jurisprudence” require “fair notice” of the punishable conduct as well as the “severity of the penalty” that may be imposed. 517 U.S. at 574. Employers have been on notice since the 1991 Civil Rights Act was passed as to the type of conduct and the required mindset for an award of punitive damages, as well as the potential amount of an award. These statutory caps have never increased, meaning that employers have had “fair notice” for nearly thirty years of what kind of conduct will subject them to punitive damages, and in exactly what amount, ranging from $50,000 to $300,000. Gore, 517 U.S. at 574; see also TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 465-66 (1993) (“[T]he notice component of the Due Process Clause is satisfied if prior law fairly indicated that a punitive damages award might be imposed in response to egregiously tortious conduct.”); EEOC v. Fed. Express Corp., 513 F.3d 360, 378 (4th Cir. 2008) (statutory cap provided “fair notice of the range of available civil penalties for acts of discrimination that contravened the” Americans with Disabilities Act)[4]; Romano v. U-Haul Int’l, 233 F.3d 655, 673 (1st Cir. 2000) (in Title VII case, stating that “[a] congressionally-mandated, statutory scheme identifying the prohibited conduct as well as the potential range of financial penalties goes far in assuring that appellants’ due process rights have not been violated”). No employer can reasonably claim that it was blindsided by the amount of a Title VII punitive damages award.

The statutory caps also eliminate any concern “about unleashing juries to award limitless punitive damages in cases where no harm had occurred.” Cush-Crawford, 271 F.3d at 359. This Court has recognized as much, stating that “the statutory caps on punitive damages … ensure against limitless awards in cases of insubstantial harm.” Tisdale, 415 F.3d at 534; see also ASARCO, 773 F.3d at 1057 (“[T]he statute dramatically reduces the chance of random, arbitrary awards, because the statute articulates the degree of culpability that a defendant must have … and restricts damages awards to a range between $0 and $300,000.”). The caps therefore address the Supreme Court’s concern about “the stark unpredictability of punitive awards,” Exxon, 554 U.S. at 499, or that such awards may “run wild,” Haslip, 499 U.S. at 18. And the statutory maximum of $300,000 eliminates any concern that Title VII awards would be “‘grossly excessive’ in relation to the[] interests” Title VII seeks to protect. Gore, 517 U.S. at 568. Accordingly, every award under the caps of § 1981a(b)(3) necessarily comports with due process.

Even if Gore were legally relevant to Title VII, application of its three guideposts to § 1981a confirms that every award under the statutory caps satisfies the Gore standard. The first factor—reprehensibility—is by definition satisfied by any award made under § 1981a, as the statute permits punitive damages only for cases of “unlawful intentional discrimination,” and, even then, only when a jury finds that the employer discriminates “with malice or reckless indifference.” 42 U.S.C. § 1981a(a)-(b). The statute therefore encapsulates the “accepted view that some wrongs are more blameworthy than others,” Gore, 517 U.S. at 575, reserving punitive damages for the most reprehensible conduct. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999) (“Congress plainly sought to impose two standards of liability—one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.”). “Gore’s concern that conduct must be reprehensible” is thus satisfied by Title VII’s requirement that the employer acted intentionally with “malice or with reckless indifference.” ASARCO, 773 F.3d at 1057.

Gore’s second factor, ratio analysis, “has little applicability in the Title VII context because § 1981a governs punitive damages.” ASARCO, 773 F.3d at 1057; see Abner, 513 F.3d at 164 (Gore’s “ratio-based inquiry” is “irrelevant” under Title VII). “When a statute narrowly describes the type of conduct subject to punitive liability, and reasonably caps that liability, it makes little sense to formalistically apply a ratio analysis devised from unrestricted state common law damages awards.” ASARCO, 773 F.3d at 1057; see also Lust, 383 F.3d at 590 (where there is a low statutory limit on punitive damages, the ratio to compensatory damages “ceases to be an issue of constitutional dignity”). Section 1981a(b)(3) contains “reasonabl[e] caps,” ASARCO, 773 F.3d at 1057, as it permits a maximum of $50,000 of punitive damages for the smallest employers and $300,000 for the largest employers. See id. at 1060 (“The [$300,000] amount of the cap provides an extremely limited potential for recovery.”).

Moreover, as this Court has observed, “nothing in the plain language of § 1981a conditions an award of punitive damages on an underlying award of compensatory damages.” Tisdale, 415 F.3d at 534 (internal quotation marks and citation omitted). For this reason, this Court has held that punitive damages may be awarded under Title VII when no compensatory damages, or only nominal damages, are awarded. See id. at 534-35 (upholding $100,000 Title VII punitive damages award although no compensatory damages were awarded); Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 672 (6th Cir. 2003) (en banc) (“Title VII would allow Morrison to collect up to $300,000 in punitive damages, even if only nominal damages were awarded.”).

Application of Gore’s ratio analysis also makes little sense because § 1981a(b)(3)’s caps are for a combined award of compensatory and punitive damages. The statute thus incorporates Congress’s judgment that where compensatory damages are higher, lower punitive damage awards are appropriate. In other words, “the greater the harm, the less the punitive damages award” can be. ASARCO, 773 F.3d at 1057.

The Supreme Court has also noted a higher ratio might be warranted where the “monetary value of noneconomic harm” is “difficult to determine” or where “a particularly egregious act has resulted in only a small amount of economic damages.” Gore, 517 U.S. at 582; see also Abner, 513 F.3d at 163 (Title VII violations often result in harms that are “difficult to quantify in physical terms.”). To preclude juries from “awarding punitive damages when an employer engaged in reprehensible discrimination without inflicting easily quantifiable physical and monetary harm would quell the deterrence that Congress intended in the most egregious discrimination cases under Title VII.” Abner, 513 F.3d at 163. It would also have the perverse effect of permitting employers “who engage[] in malicious or reckless violations … to escape either the punitive or deterrent goal of punitive damages merely because either good fortune or a plaintiff’s unusual strength or resilience protected the plaintiff from suffering harm.” Cush-Crawford, 271 F.3d at 359.

Gore’s third guidepost—penalties for comparable misconduct—is also satisfied by any award under § 1981a’s caps. The Court emphasized in Gore that “a reviewing court engaged in determining whether an award of punitive damages is excessive should accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.” 517 U.S. at 583 (internal citations and quotations omitted). Here, § 1981a embodies Congress’s legislative judgment as to the appropriate penalties for punitive damages. See ASARCO, 773 F.3d at 1058 (in Title VII case, stating that the “purpose of the third guidepost is deference to legislative judgments” and finding Gore’s third guidepost satisfied); cf. Sommerfield v. Knasiak, 967 F.3d 617, 624-25 (7thCir. 2020) (observing that Title VII’s statutory cap “represents a policy judgment on Congress’s part to limit the amount of damages that a defendant must pay in a Title VII case,”’ and refusing to impose Title VII’s cap on §§ 1981 and 1983 punitive damages award of $540,000); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir. 1999) (holding $75,000 punitive damages award not excessive and “within the range that Congress has determined to be reasonable”).

Of course, courts should not simply rubber-stamp jury awards of punitive damages. See generally ASARCO, 773 F.3d at 1058 (“[J]ust because damages conferred under a certain statutory scheme comport with due process and Gore does not mean that our constitutional analysis is at an end. We still must assess whether the district court was correct in concluding that the award met the requirements of the statutory scheme.”). Rather, courts should continue to review the sufficiency of the evidence to determine whether a plaintiff satisfied the statutory standard for an award of punitive damages—i.e., that an employer intentionally discriminated with “malice or with reckless indifference” to the plaintiff’s federally protected rights under Title VII. 42 U.S.C. § 1981a(b)(1); see, e.g., Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 572-73 (6th Cir. 2019) (affirming punitive damages award and observing that trial testimony about “FedEx’s anti-discrimination training” supported jury’s finding that managers acted with malice or reckless disregard); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1216 (6th Cir. 1996) (reversing punitive damages award where “[a] review of the record reveals that, although the actions of [defendant]’s employees were duplicitous and disclosed a lack of empathy, they did not rise to the level to support a punitive damages award under the Civil Rights Act of 1991”).

II. Alternatively, if this Court should find that Gore applies, the district court held correctly that the jury’s $50,000 punitive damages award comports with due process under Gore.

Even if punitive damages awards beneath Title VII’s caps are subject to constitutional scrutiny under Gore, the $50,000 award here should be affirmed because the district court held correctly that all three Gore guideposts are satisfied.

A. The graphic sexual harassment of Corbin, a teenager, was reprehensible.

The reprehensibility factor is “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” Gore, 517 U.S. at 575. Reprehensibility turns on whether “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” State Farm, 538 U.S. at 419.

As the district court found, this standard is met here. PageID#2274/Order/R.101. The court correctly found that “the most compelling evidence” of reprehensibility was Corbin’s “vulnerability,” which the court detailed. See supra at 13-14; PageID#2274-75/Order/R.101. In addition, SNS’s conduct “evinced an indifference to or a reckless disregard of the health … of others,” State Farm, 538 U.S. at 419, as SNS ignored Corbin’s repeated complaints, permitting the harassment to continue for months in disregard of her physical and emotional well-being. The conduct—including the harassment and SNS’s repeated failure to address it—“involved repeated actions,” not merely “isolated incident[s],” and the harm was clearly no “mere accident,” contributing to the reprehensibility. Id. Multiple times, McCann smacked Corbin’s buttocks and said he wanted to “bend [her] over” and “fuck [her],” and multiple times SNS did nothing when Corbin, or Dean, complained.

SNS argues that the district court’s finding of reprehensibility cannot stand because it rested “largely on its assumption that Corbin was aware of the freezer incident while she was employed—an assumption unsupported by the evidence.” SNS-Br. 29. The EEOC takes no position on this evidentiary issue, but even without this evidence, the district court’s reprehensibility finding is well supported by the ongoing and offensive nature of the harassment and SNS’s woefully inadequate response to it. See Swinton v. Potomac Corp., 270 F.3d 794, 818 (9th Cir. 2001) (employer’s “abject failure … to combat the harassment[] constitutes highly reprehensible conduct justifying a significant punitive damages award”).

B. The 38:1 ratio is within constitutional limits.

The district court held correctly “that the 38:1 ratio of punitive damages to back pay and compensatory damages is within constitutional limits.” PageID#2276/Order/R.101. As discussed supra at 25-26, the ratio factor makes little sense in the context of § 1981a(b)(3). But, in any event, the 38:1 ratio here satisfies due process. Although the Court stated in State Farm that “few awards exceeding a single-digit ratio … will satisfy due process,” the Court also reiterated that “there are no rigid benchmarks that a punitive damages award may not surpass.” 538 U.S. at 425; see also Gore, 517 U.S. at 582 (“[C]onstitutional line” is not “marked by a simple mathematical formula.”). Moreover, State Farm acknowledged that “ratios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’” 538 U.S. at 425 (quoting Gore, 517 U.S. at 582).

Such is the case here. As the district court observed, this case “fits the mold of one in which reprehensible conduct produces a small amount of economic harm and produces noneconomic harm which is difficult to calculate.” PageID#2276/Order/R.101. Because Corbin was a high-school-aged server working limited hours and soon found a new job, her back pay was modest. Id. Given other life stressors, her mental and emotional stress was difficult to quantify. Id. But “that does not mean the indignities [s]he suffered were insubstantial.” Bryant v. Jeffrey Sand Co., 919 F.3d 520, 528 (8th Cir. 2019) (jury may have been unable “to easily quantify the monetary value of [plaintiff]’s injuries”; upholding $250,000 punitive damages award with only nominal compensatory damages). Additionally, the jury’s $50,000 award “sen[t] a message” to SNS that it should be punished for failing to prevent and respond appropriately to the sexual harassment of two teenage girls. PageID#2276/Order/R.101.

The 38:1 ratio is also lower than other ratios this Court has upheld, underscoring its constitutionality. See Jeffries, 15 F. App’x at 266 (upholding 50:1 ratio in Title VII and state law case with $425,000 in punitive damages and $8,500 in compensatory damages); Romanski v. Detriot Entm’t, LLC, 428 F.3d 629, 649-50 (6th Cir. 2005) (ordering remittitur of punitive damages award to $600,000, making for a 2,150:1 ratio, where casino detained and interrogated seventy-two-year-old plaintiff for taking a five-cent token); Argentine v. United Steelworkers of Am., AFL-CIO, 287 F.3d 476, 488 (6th Cir. 2002) (upholding punitive damages award 42.5 times bigger than compensatory award); see also Swinton, 270 F.3d at 818 (upholding 28:1 ratio in racial harassment case involving “particularly egregious” acts and non-economic harm that was hard to determine); Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir. 2000) (upholding 59:1 ratio in sexual harassment case where “injury was primarily personal” and jury could find employer’s “lack of an effective response … recklessly indifferent”).

SNS maintains that the 38:1 ratio is unconstitutional because it exceeds the 4:1 ratio that the Supreme Court has acknowledged “might be close to the line of constitutional impropriety.” State Farm, 538 U.S. at 425. In support, SNS cites this Court’s decisions in Bach v. First Union National Bank, 486 F.3d 150, 156 (6th Cir. 2007), and Bridgeport Music, Inc. v. Justin Combs Publ’g, 507 F.3d 470, 488 (6th Cir. 2007), which quoted State Farm and reversed punitive damages awards. Neither Bach nor Bridgeport supports reversal here because neither concerned a federal statute with a cap, and in each case only one of the State Farm reprehensibility factors was met.

In Bach this Court ordered a $2.2 million punitive damages award under the Fair Credit Reporting Act (FCRA)—which “does not include a limit on damages for civil actions”—to be reduced to $400,000, making a 1:1 ratio to the compensatory damages. 486 F.3d at 154 n.1, 156-57. In doing so, this Court reasoned that “the record established the existence of only one of the reprehensibility factors identified in State Farm,” and the defendant’s actions “were not particularly outrageous.” Id. at 154, 155. In contrast, SNS’s conduct was quite outrageous and satisfied several State Farm reprehensibility factors. Bridgeport is similarly inapposite, as it concerned a $3.5 million punitive damages award under New York common law for copyright infringement and unfair competition. 507 F.3d at 477. This Court held that a ratio in the range of 1:1 to 2:1 to compensatory damages was “all that due process will allow” where, as in Bach, only one reprehensibility factor was met, and where the significant compensatory damage award of $366,939 “contained a punitive element.” 507 F.3d at 487, 490.

C. The $50,000 award is less than available sanctions in comparable cases.

Finally, the district court held correctly that the third Gore factor—comparisons to sanctions in comparable cases—satisfies due process. As discussed supra at 28-29, this factor requires “substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.” Gore, 517 U.S. at 583 (internal quotation marks and citations omitted). In § 1981a, Congress expressed its reasoned judgment as to the appropriate standard for awarding punitive damages and the amount employers should pay. The jury’s $50,000 award constituted just one-sixth of the $300,000 statutory cap for employers of SNS’s size, indicating its reasonableness. See Tisdale, 415 F.3d at 535 (upholding $100,000 punitive damages award, which was “one-third of the maximum which Congress determined to be reasonable for a company of FedEx’s size”); Wal-Mart, 187 F.3d at 1249 (upholding punitive damages award of “$75,000, one-fourth the statutory maximum”). SNS’s net worth of between $500-$600 million further confirms the reasonableness of the $50,000 award. See Romanski, 428 F.3d at 649 (deterrent value of an award “is directly related to what people can afford to pay”; finding jury’s consideration of “casino’s financial position” permissible) (omitting internal quotation marks and citation).

CONCLUSION

For the foregoing reasons, the jury’s award of $50,000 in punitive damages should be affirmed.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4724

Annenoel.Occhialino@eeoc.gov

[1] We take no position with respect to any other issue presented.

[2] During Dean’s voir dire before the district court judge, Dean testified that she told Corbin about the freezer incident. PageID#1094/Tr./R.86.

[3] Corbin also brought Title VII retaliation and sex discrimination claims, and state law claims. The Commission takes no position on these claims.

[4] Title VII’s “powers, remedies, and procedures” apply to discrimination claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117(a), making punitive damages available under § 1981a for ADA as well as Title VII claims.