Syllabus
SUPREME COURT OF THE UNITED STATES
KOLSTAD v. AMERICAN DENTAL ASSOCIATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 98—208. Argued March 1, 1999–Decided June 22, 1999
Petitioner sued respondent under Title VII of the Civil Rights Act of
1964 (Title VII), asserting that respondent’s decision to promote Tom
Spangler over her was a proscribed act of gender discrimination. Petitioner
alleged, and introduced testimony to prove, that, among other things,
the entire selection process was a sham, the stated reasons of respondent’s
executive director for selecting Spangler were pretext, and Spangler
had been chosen before the formal selection process began. The District
Court denied petitioner’s request for a jury instruction on punitive
damages, which are authorized by the Civil Rights Act of 1991 (1991 Act)
for Title VII cases in which the employee “demonstrates” that the employer
has engaged in intentional discrimination and has done so “with malice
or with reckless indifference to [the employee’s] federally protected
rights.” 42 U.S.C. § 1981a(b)(1). In affirming that denial, the en banc
Court of Appeals concluded that, before the jury can be instructed on
punitive damages, the evidence must demonstrate that the defendant has
engaged in some “egregious” misconduct, and that petitioner had failed
to make the requisite showing in this case.
Held:
1. An employer’s conduct need not be independently “egregious” to satisfy
§1981a’s requirements for a punitive damages award, although evidence
of egregious behavior may provide a valuable means by which an employee
can show the “malice” or “reckless indifference” needed to qualify for
such an award. The 1991 Act provided for compensatory and punitive damages
in addition to the backpay and other equitable relief to which prevailing
Title VII plaintiffs had previously been limited. Section 1981a’s two-tiered
structure–it limits compensatory and punitive awards to cases of “intentional
discrimination,” §1981a(a)(1), and further qualifies the availability
of punitive awards to instances of “malice” or “reckless indifference”–suggests
a congressional intent 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. The terms
“malice” and “reckless indifference” ultimately focus on the actor’s
state of mind, however, and §1981a does not require a showing of egregious
or outrageous discrimination independent of the employer’s state of mind.
Nor does the statute’s structure imply an independent role for “egregiousness”
in the face of congressional silence. On the contrary, the view that
§1981a provides for punitive awards based solely on an employer’s state
of mind is consistent with the 1991 Act’s distinction between equitable
and compensatory relief. Intent determines which remedies are open to
a plaintiff here as well. This focus on the employer’s state of mind
does give effect to the statute’s two-tiered structure. The terms “malice”
and “reckless indifference” pertain not to the employer’s awareness that
it is engaging in discrimination, but to its knowledge that it may be
acting in violation of federal law, see, e.g., Smith v.
Wade, 461 U.S. 30, 37, n. 6, 41, 50. There will be circumstances
where intentional discrimination does not give rise to punitive damages
liability under this standard, as where the employer is unaware of the
relevant federal prohibition or discriminates with the distinct belief
that its discrimination is lawful, where the underlying theory of discrimination
is novel or otherwise poorly recognized, or where the employer reasonably
believes that its discrimination satisfies a bona fide occupational qualification
defense or other statutory exception to liability. See Hazen Paper
Co. v. Biggins, 507 U.S. 604, 616, 617. Although there
is some support for respondent’s assertion that the common law punitive
awards tradition includes an “egregious misconduct” requirement, eligibility
for such awards most often is characterized in terms of a defendant’s
evil motive or intent. Egregious or outrageous acts may serve as evidence
supporting an inference of such evil motive, but §1981a does not limit
plaintiffs to this form of evidence or require a showing of egregious
or outrageous discrimination independent of the employer’s state of mind.
Pp. 5—11.
2. The inquiry does not end with a showing of the requisite mental state
by certain employees, however. Petitioner must impute liability for punitive
damages to respondent. Common law limitations on a principal’s vicarious
liability for its agents’ acts apply in the Title VII context. See, e.g., Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 754. The Court’s
discussion of this question is informed by the general common law of
agency, as codified in the Restatement (Second) of Agency, see, e.g.,
id., at 755, which, among other things, authorizes punitive damages
“against a … principal because of an [agent’s] act … if … the agent was
employed in a managerial capacity and was acting in the scope of employment,”
§217 C(c), and declares that even intentional, specifically forbidden
torts are within such scope if the conduct is “the kind [the employee]
is employed to perform,” “occurs substantially within the authorized
time and space limits,” and “is actuated, at least in part, by a purpose
to serve the” employer, §§228(1), 230, Comment b. Under these
rules, even an employer who made every good faith effort to comply with
Title VII would be held liable for the discriminatory acts of agents
acting in a “managerial capacity.” Holding such an employer liable, however,
is in some tension with the principle that it is “improper … to award
punitive damages against one who himself is personally innocent and therefore
liable only vicariously,” Restatement (Second) of Torts, §909, Comment b.
Applying the Restatement’s “scope of employment” rule in this context,
moreover, would reduce the incentive for employers to implement antidiscrimination
programs and would, in fact, likely exacerbate employers’ concerns that
42 U.S.C. § 1981a’s “malice” and “reckless indifference” standard penalizes
those employers who educate themselves and their employees on Title VII’s
prohibitions. Dissuading employers from implementing programs or policies
to prevent workplace discrimination is directly contrary to Title VII’s
prophylactic purposes. See, e.g., Burlington Industries,
Inc., 524 U.S., at 764. Thus, the Court is compelled to modify the
Restatement rules to avoid undermining Title VII’s objectives. See, e.g., ibid. The
Court therefore agrees that, in the punitive damages context, an employer
may not be vicariously liable for the discriminatory employment decisions
of managerial agents where these decisions are contrary to the employer’s
good faith efforts to comply with Title VII. Pp. 11—18.
3. The question whether petitioner can identify facts sufficient to
support an inference that the requisite mental state can be imputed to
respondent is left for remand. The parties have not yet had an opportunity
to marshal the record evidence in support of their views on the application
of agency principles in this case, and the en banc Court of Appeals had
no reason to resolve the issue because it concluded that petitioner had
failed to demonstrate the requisite “egregious” misconduct. Pp. 18—19.
139 F.3d 958, vacated and remanded.
O’Connor, J., delivered the opinion of the Court, Part I of which was
unanimous, Part II—A of which was joined by Stevens, Scalia, Kennedy,
Souter, Ginsburg, and Breyer JJ., and Part II—B of which was joined by
Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ. Rehnquist, C. J.,
filed an opinion concurring in part and dissenting in part, in which
Thomas, J., joined. Stevens, J., filed an opinion concurring in part
and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined.
Opinion of the Court
SUPREME COURT OF THE UNITED STATES
No. 98—208
CAROLE KOLSTAD, PETITIONER v. AMERICAN
DENTAL ASSOCIATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 22, 1999]
Justice O’Connor delivered the opinion of the Court.
Under the terms of the Civil Rights Act of 1991 (1991 Act), 105 Stat.
1071, punitive damages are available in claims under Title VII of the
Civil Rights Act of 1964 (Title VII), 78 Stat. 253, as amended, 42 U.S.C.
§ 2000e et seq. (1994 ed. and Supp. III), and the Americans
with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U.S.C. § 12101 et
seq. Punitive damages are limited, however, to cases in which the
employer has engaged in intentional discrimination and has done so “with
malice or with reckless indifference to the federally protected rights
of an aggrieved individual.” Rev. Stat. §1977, as amended, 42 U.S.C.
§ 1981a(b)(1). We here consider the circumstances under which punitive
damages may be awarded in an action under Title VII.
I
A
In September 1992, Jack O’Donnell announced that he would be retiring
as the Director of Legislation and Legislative Policy and Director of
the Council on Government Affairs and Federal Dental Services for respondent,
American Dental Association (respondent or Association). Petitioner,
Carole Kolstad, was employed with O’Donnell in respondent’s Washington,
D. C., office, where she was serving as respondent’s Director of Federal
Agency Relations. When she learned of O’Donnell’s retirement, she expressed
an interest in filling his position. Also interested in replacing O’Donnell
was Tom Spangler, another employee in respondent’s Washington office.
At this time, Spangler was serving as the Association’s Legislative Counsel,
a position that involved him in respondent’s legislative lobbying efforts.
Both petitioner and Spangler had worked directly with O’Donnell, and
both had received “distinguished” performance ratings by the acting head
of the Washington office, Leonard Wheat.
Both petitioner and Spangler formally applied for O’Donnell’s position,
and Wheat requested that Dr. William Allen, then serving as respondent’s
Executive Director in the Association’s Chicago office, make the ultimate
promotion decision. After interviewing both petitioner and Spangler,
Wheat recommended that Allen select Spangler for O’Donnell’s post. Allen
notified petitioner in December 1992 that he had, in fact, selected Spangler
to serve as O’Donnell’s replacement. Petitioner’s challenge to this employment
decision forms the basis of the instant action.
B
After first exhausting her avenues for relief before the Equal Employment
Opportunity Commission, petitioner filed suit against the Association
in Federal District Court, alleging that respondent’s decision to promote
Spangler was an act of employment discrimination proscribed under Title
VII. In petitioner’s view, the entire selection process was a sham. Tr.
8 (Oct. 26, 1995) (closing argument for plaintiff’s counsel). Counsel
for petitioner urged the jury to conclude that Allen’s stated reasons
for selecting Spangler were pretext for gender discrimination, id.,
at 19, 24, and that Spangler had been chosen for the position before
the formal selection process began, id., at 19. Among the evidence
offered in support of this view, there was testimony to the effect that
Allen modified the description of O’Donnell’s post to track aspects of
the job description used to hire Spangler. See id., at 132—136
(Oct. 19, 1995) (testimony of Cindy Simms); id., at 48—51 (Oct.
20, 1995) (testimony of Leonard Wheat). In petitioner’s view, this “preselection”
procedure suggested an intent by the Association to discriminate on the
basis of sex. Id., at 24. Petitioner also introduced testimony
at trial that Wheat told sexually offensive jokes and that he had referred
to certain prominent professional women in derogatory terms. See id.,
at 120—124 (Oct. 18, 1995) (testimony of Carole Kolstad). Moreover, Wheat
allegedly refused to meet with petitioner for several weeks regarding
her interest in O’Donnell’s position. See id., at 112—113. Petitioner
testified, in fact, that she had historically experienced difficulty
gaining access to meet with Wheat. See id., at 114—115. Allen,
for his part, testified that he conducted informal meetings regarding
O’Donnell’s position with both petitioner and Spangler, see id.,
at 148 (Oct. 23, 1995), although petitioner stated that Allen did not
discuss the position with her, see id., at 127—128 (Oct. 18,
1995).
The District Court denied petitioner’s request for a jury instruction
on punitive damages. The jury concluded that respondent had discriminated
against petitioner on the basis of sex and awarded her backpay totaling
$52,718. App. 109—110. Although the District Court subsequently denied
respondent’s motion for judgment as a matter of law on the issue of liability,
the court made clear that it had not been persuaded that respondent had
selected Spangler over petitioner on the basis of sex, and the court
denied petitioner’s requests for reinstatement and for attorney’s fees.
912 F. Supp. 13, 15 (DC 1996).
Petitioner appealed from the District Court’s decisions denying her requested
jury instruction on punitive damages and her request for reinstatement
and attorney’s fees. Respondent cross-appealed from the denial of its
motion for judgment as a matter of law. In a split decision, a panel
of the Court of Appeals for the District of Columbia Circuit reversed
the District Court’s decision denying petitioner’s request for an instruction
on punitive damages. 108 F.3d 1431, 1435 (1997). In so doing, the court
rejected respondent’s claim that punitive damages are available under
Title VII only in “ ‘extraordinarily egregious cases.’ ” Id.,
at 1437. The panel reasoned that, “because ‘the state of mind necessary
to trigger liability for the wrong is at least as culpable as that required
to make punitive damages applicable,’ ” id., at 1438 (quoting Rowlett v.
Anheuser-Busch, Inc., 832 F.2d 194, 205 (CA1 1987)), the fact that
the jury could reasonably have found intentional discrimination meant
that the jury should have been permitted to consider punitive damages.
The court noted, however, that not all cases involving intentional discrimination
would support a punitive damages award. 108 F.3d, at 1438. Such an award
might be improper, the panel reasoned, in instances where the employer
justifiably believes that intentional discrimination is permitted or
where an employee engages in discrimination outside the scope of that
employee’s authority. Id., at 1438—1439. Here, the court concluded,
respondent “neither attempted to justify the use of sex in its promotion
decision nor disavowed the actions of its agents.” Id., at 1439.
The Court of Appeals subsequently agreed to rehear the case en banc,
limited to the punitive damages question. In a divided opinion, the court
affirmed the decision of the District Court. 139 F.3d 958 (1998). The
en banc majority concluded that, “before the question of punitive damages
can go to the jury, the evidence of the defendant’s culpability must
exceed what is needed to show intentional discrimination.” Id.,
at 961. Based on the 1991 Act’s structure and legislative history, the
court determined, specifically, that a defendant must be shown to have
engaged in some “egregious” misconduct before the jury is permitted to
consider a request for punitive damages. Id., at 965. Although
the court declined to set out the “egregiousness” requirement in any
detail, it concluded that petitioner failed to make the requisite showing
in the instant case. Judge Randolph concurred, relying chiefly on §1981a’s
structure as evidence of a congressional intent to “limi[t] punitive
damages to exceptional cases.” Id., at 970. Judge Tatel wrote
in dissent for five judges, who agreed generally with the panel majority.
We granted certiorari, 525 U.S. ___ (1998), to resolve a conflict among
the Federal Courts of Appeals concerning the circumstances under which
a jury may consider a request for punitive damages under §1981a(b)(1).
Compare 139 F.3d 958 (CADC 1998) (case below), with Luciano v.
Olsten Corp., 110 F.3d 210, 219—220 (CA2 1997) (rejecting contention
that punitive damages require showing of “extraordinarily egregious”
conduct).
II
A
Prior to 1991, only equitable relief, primarily backpay, was available
to prevailing Title VII plaintiffs; the statute provided no authority
for an award of punitive or compensatory damages. See Landgraf v.
USI Film Products, 511 U.S. 244, 252—253 (1994). With the passage
of the 1991 Act, Congress provided for additional remedies, including
punitive damages, for certain classes of Title VII and ADA violations.
The 1991 Act limits compensatory and punitive damages awards, however,
to cases of “intentional discrimination”–that is, cases that do not rely
on the “disparate impact” theory of discrimination. 42 U.S.C. § 1981a(a)(1).
Section 1981a(b)(1) further qualifies the availability of punitive awards:
“A complaining party may recover punitive damages under this section
against a respondent (other than a government, government agency or political
subdivision) if the complaining party demonstrates that the respondent
engaged in a discriminatory practice or discriminatory practices with
malice or with reckless indifference to the federally protected rights
of an aggrieved individual.” (Emphasis added.)
The very structure of §1981a suggests a congressional intent to authorize
punitive awards in only a subset of cases involving intentional discrimination.
Section 1981a(a)(1) limits compensatory and punitive awards to instances
of intentional discrimination, while §1981a(b)(1) requires plaintiffs
to make an additional “demonstrat[ion]” of their eligibility for punitive
damages. 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.
The Court of Appeals sought to give life to this two-tiered structure
by limiting punitive awards to cases involving intentional discrimination
of an “egregious” nature. We credit the en banc majority’s effort to
effectuate congressional intent, but, in the end, we reject its conclusion
that eligibility for punitive damages can only be described in terms
of an employer’s “egregious” misconduct. The terms “malice” and “reckless”
ultimately focus on the actor’s state of mind. See, e.g., Black’s
Law Dictionary 956—957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs,
R. Keeton, & D. Owen, Prosser and Keeton, Law of Torts 212—214 (5th
ed. 1984) (defining “willful,” “wanton,” and “reckless”). While egregious
misconduct is evidence of the requisite mental state, see infra,
at 10—11; Keeton, supra, at 213—214, §1981a does not limit plaintiffs
to this form of evidence, and the section does not require a showing
of egregious or outrageous discrimination independent of the employer’s
state of mind. Nor does the statute’s structure imply an independent
role for “egregiousness” in the face of congressional silence. On the
contrary, the view that §1981a provides for punitive awards based solely
on an employer’s state of mind is consistent with the 1991 Act’s distinction
between equitable and compensatory relief. Intent determines which remedies
are open to a plaintiff here as well; compensatory awards are available
only where the employer has engaged in “intentional discrimination.”
§1981a(a)(1) (emphasis added).
Moreover, §1981a’s focus on the employer’s state of mind gives some effect
to Congress’ apparent intent to narrow the class of cases for which punitive
awards are available to a subset of those involving intentional discrimination.
The employer must act with “malice or with reckless indifference to
[the plaintiff’s] federally protected rights.” §1981a(b)(1) (emphasis
added). The terms “malice” or “reckless indifference” pertain to the
employer’s knowledge that it may be acting in violation of federal law,
not its awareness that it is engaging in discrimination.
We gain an understanding of the meaning of the terms “malice” and “reckless
indifference,” as used in §1981a, from this Court’s decision in Smith v.
Wade, 461 U.S. 30 (1983). The parties, as well as both the en banc
majority and dissent, recognize that Congress looked to the Court’s decision
in Smith in adopting this language in §1981a. See Tr. of Oral
Arg. 28—29; Brief for Petitioner 24; 139 F.3d, at 964—965; id.,
at 971 (Tatel, J., dissenting). Employing language similar to what later
appeared in §1981a, the Court concluded in Smith that “a jury
may be permitted to assess punitive damages in an action under §1983
when the defendant’s conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” 461 U.S., at 56. While the Smith Court
determined that it was unnecessary to show actual malice to qualify for
a punitive award, id., at 45—48, its intent standard, at a minimum,
required recklessness in its subjective form. The Court referred to a
“subjective consciousness” of a risk of injury or illegality and a “ ‘criminal
indifference to civil obligations.’ ” Id., at 37, n. 6, 41 (quoting Philadelphia,
W. & B. R. Co. v. Quigley, 21 How. 202, 214 (1859));
see also Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(explaining that criminal law employs subjective form of recklessness,
requiring a finding that the defendant “disregards a risk of harm of
which he is aware”); see generally 1 T. Sedgwick, Measure of Damages
§§366, 368, pp. 528, 529 (8th ed. 1891) (describing “wantonness” in punitive
damages context in terms of “criminal indifference” and “gross negligence”
in terms of a “conscious indifference to consequences”). The Court thus
compared the recklessness standard to the requirement that defendants
act with “ ‘knowledge of falsity or reckless disregard for the truth’ ”
before punitive awards are available in defamation actions, Smith, supra,
at 50 (quoting Gertz v. Robert Welch, Inc., 418 U.S.
323, 349 (1974)), a subjective standard, Harte-Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Applying
this standard in the context of §1981a, an employer must at least discriminate
in the face of a perceived risk that its actions will violate federal
law to be liable in punitive damages.
There will be circumstances where intentional discrimination does not
give rise to punitive damages liability under this standard. In some
instances, the employer may simply be unaware of the relevant federal
prohibition. There will be cases, moreover, in which the employer discriminates
with the distinct belief that its discrimination is lawful. The underlying
theory of discrimination may be novel or otherwise poorly recognized,
or an employer may reasonably believe that its discrimination satisfies
a bona fide occupational qualification defense or other statutory exception
to liability. See, e.g., 42 U.S.C. § 2000e—2(e)(1) (setting
out Title VII defense “where religion, sex, or national origin is a bona
fide occupational qualification”); see also §12113 (setting out defenses
under ADA). In Hazen Paper Co. v. Biggins, 507 U.S.
604, 616 (1993), we thus observed that, in light of statutory defenses
and other exceptions permitting age-based decisionmaking, an employer
may knowingly rely on age to make employment decisions without recklessly
violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly,
we determined that limiting liquidated damages under the ADEA to cases
where the employer “knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the statute,” without an additional
showing of outrageous conduct, was sufficient to give effect to the ADEA’s
two-tiered liability scheme. Id., at 616, 617.
At oral argument, respondent urged that the common law tradition surrounding
punitive awards includes an “egregious misconduct” requirement. See, e.g.,
Tr. of Oral Arg. 26—28; see also Brief for Chamber of Commerce of United
States as Amicus Curiae 8—22 (advancing this argument). We assume
that Congress, in legislating on punitive awards, imported common law
principles governing this form of relief. See, e.g., Molzof v.
United States, 502 U.S. 301, 307 (1992). Moreover, some courts and
commentators have described punitive awards as requiring both a specified
state of mind and egregious or aggravated misconduct. See, e.g.,
1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) (“Punitive damages are
awarded when the defendant is guilty of both a bad state of mind and
highly serious misconduct”).
Most often, however, eligibility for punitive awards is characterized
in terms of a defendant’s motive or intent. See, e.g., 1 Sedgwick, supra,
at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, “[t]he
justification of exemplary damages lies in the evil intent of the defendant.”
1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of
Damages §390, p. 1079 (3d ed. 1903) (discussing punitive damages under
rubric of “[c]ompensation for wrongs done with bad motive”). Accordingly,
“a positive element of conscious wrongdoing is always required.” McCormick, supra,
at 280.
Egregious misconduct is often associated with the award of punitive damages,
but the reprehensible character of the conduct is not generally considered
apart from the requisite state of mind. Conduct warranting punitive awards
has been characterized as “egregious,” for example, because of
the defendant’s mental state. See Restatement (Second) of Torts §908(2)
(1979) (“Punitive damages may be awarded for conduct that is outrageous,
because of the defendant’s evil motive or his reckless indifference to
the rights of others”). Respondent, in fact, appears to endorse this
characterization. See, e.g., Brief for Respondent 19 (“Malicious
and reckless conduct [is] by definition egregious”); see also id.,
at 28—29. That conduct committed with the specified mental state may
be characterized as egregious, however, is not to say that employers
must engage in conduct with some independent, “egregious” quality before
being subject to a punitive award.
To be sure, egregious or outrageous acts may serve as evidence supporting
an inference of the requisite “evil motive.” “The allowance of exemplary
damages depends upon the bad motive of the wrong-doer as exhibited
by his acts.” 1 Sedgwick, supra, at 529 (emphasis added);
see also 2 Sutherland, supra, §394, at 1101 (“The spirit which
actuated the wrong-doer may doubtless be inferred from the circumstances
surrounding the parties and the transaction”); see, e.g., Chizmar v.
Mackie, 896 P.2d 196, 209 (Alaska 1995) (“[W]here there is no evidence
that gives rise to an inference of actual malice or conduct sufficiently
outrageous to be deemed equivalent to actual malice, the trial court
need not, and indeed should not, submit the issue of punitive damages
to the jury” (internal quotation marks omitted)); Horton v.
Union Light, Heat & Power Co., 690 S. W. 2d 382, 389 (Ky. 1985)
(observing that “malice . . . may be implied from outrageous conduct”).
Likewise, under §1981a(b)(1), pointing to evidence of an employer’s egregious
behavior would provide one means of satisfying the plaintiff’s burden
to “demonstrat[e]” that the employer acted with the requisite “malice
or . . . reckless indifference.” See 42 U.S.C. § 1981a(b)(1); see, e.g.,
3 BNA EEOC Compliance Manual N:6085—N6084 (1992) (Enforcement Guidance:
Compensatory and Punitive Damages Available Under §102 of the Civil Rights
Act of 1991) (listing “[t]he degree of egregiousness and nature of the
respondent’s conduct” among evidence tending to show malice or reckless
disregard). Again, however, respondent has not shown that the terms “reckless
indifference” and “malice,” in the punitive damages context, have taken
on a consistent definition including an independent, “egregiousness”
requirement. Cf. Morissette v. United States, 342 U.S.
246, 263 (1952) (“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice,
it presumably knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which it was taken
and the meaning its use will convey to the judicial mind unless otherwise
instructed”).
B
The inquiry does not end with a showing of the requisite “malice or .
. . reckless indifference” on the part of certain individuals, however.
42 U.S.C. § 1981a(b)(1). The plaintiff must impute liability for punitive
damages to respondent. The en banc dissent recognized that agency principles
place limits on vicarious liability for punitive damages. 139 F.3d, at
974 (Tatel, J., dissenting). Likewise, the Solicitor General as amicus acknowledged
during argument that common law limitations on a principal’s liability
in punitive awards for the acts of its agents apply in the Title VII
context. Tr. of Oral Arg. 23.
Justice Stevens urges that we should not consider these limitations here.
See post, at 6—8 (opinion concurring in part and dissenting
in part). While we decline to engage in any definitive application of
the agency standards to the facts of this case, see infra, at
18, it is important that we address the proper legal standards for imputing
liability to an employer in the punitive damages context. This issue
is intimately bound up with the preceding discussion on the evidentiary
showing necessary to qualify for a punitive award, and it is easily subsumed
within the question on which we granted certiorari–namely, “[i]n what
circumstances may punitive damages be awarded under Title VII of the
1964 Civil Rights Act, as amended, for unlawful intentional discrimination?”
Pet. for Cert. i; see also this Court’s Rule 14.1(a). “On a number of
occasions, this Court has considered issues waived by the parties below
and in the petition for certiorari because the issues were so integral
to decision of the case that they could be considered ‘fairly subsumed’
by the actual questions presented.” Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 37 (1991) (Stevens, J., dissenting) (citing
cases). The Court has not always confined itself to the set of issues
addressed by the parties. See, e.g., Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 93—102 and n. 1
(1998); H. J. Inc. v. Northwestern Bell Telephone Co.,
492 U.S. 229, 243—249 (1989); Continental Ill. Nat. Bank & Trust
Co. v. Chicago R. I. & P. R. Co.,294 U.S. 648, 667—675 (1935).
Here, moreover, limitations on the extent to which principals may be
liable in punitive damages for the torts of their agents was the subject
of discussion by both the en banc dissent and majority, see 139 F.3d,
at 968; id., at 974 (Tatel, J., dissenting), amicus briefing,
see Brief for Chamber of Commerce of the United States 22—27, and substantial
questioning at oral argument, see Tr. of Oral Arg. 11—17, 19—24, 49—50,
54—55. Nor did respondent discount the notion that agency principles
may place limits on an employer’s vicarious liability for punitive damages.
See post, at 6. In fact, respondent advanced the general position
“that the higher agency principles, under common law, would apply to
punitive damages.” Tr. of Oral Arg. 49. Accordingly, we conclude that
these potential limitations on the extent of respondent’s liability are
properly considered in the instant case.
The common law has long recognized that agency principles limit vicarious
liability for punitive awards. See, e.g., G. Field, Law of Damages
§§85—87 (1876); 1 Sedgwick, Damages §378; McCormick, Damages §80; 2 F.
Mechem, Law of Agency §§2014—2015 (2d ed. 1914). This is a principle,
moreover, that this Court historically has endorsed. See, e.g., Lake
Shore & Michigan Southern R. Co. v. Prentice,147 U.S.
101, 114—115 (1893); The Amiable Nancy, 3. Wheat. 546, 558—559
(1818). Courts of Appeals, too, have relied on these liability limits
in interpreting 42 U.S.C. § 1981a. See, e.g., Dudley v.
Wal-Mart Stores, Inc., 166 F.3d 1317, 1322—1323 (CA11 1999); Harris, supra,
at 983—985. See also Fitzgerald v. Mountain States Telephone & Telegraph
Co., 68 F.3d 1257, 1263—1264 (CA10 1995) (same in suit under 42
U.S.C. § 1981). But see Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 156 F.3d 581, 592—594 (CA5 1998), rehearing en banc
ordered, 169 F.3d 215 (1999).
We have observed that, “[i]n express terms, Congress has directed federal
courts to interpret Title VII based on agency principles.” Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 754 (1998);
see also Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 72 (1986) (noting that, in interpreting Title VII, “Congress wanted
courts to look to agency principles for guidance”). Observing the limits
on liability that these principles impose is especially important when
interpreting the 1991 Act. In promulgating the Act, Congress conspicuously
left intact the “limits of employer liability” established in Meritor. Faragher v. Boca
Raton, 524 U.S. 775, 804, n. 4 (1998); see also Burlington Industries,
Inc., supra, at 763—764 (“[W]e are bound by our holding
in Meritor that agency principles constrain the imposition of
vicarious liability in cases of supervisory harassment”).
Although jurisdictions disagree over whether and how to limit vicarious
liability for punitive damages, see, e.g., 2 J. Ghiardi & J.
Kircher, Punitive Damages: Law and Practice §24.01 (1998) (discussing
disagreement); 22 Am. Jur. 2d, Damages §788 (1988) (same), our interpretation
of Title VII is informed by “the general common law of agency, rather
than . . . the law of any particular State.” Burlington Industries,
Inc., supra, at 754 (internal quotation marks omitted).
The common law as codified in the Restatement (Second) of Agency (1957),
provides a useful starting point for defining this general common law.
See Burlington Industries, Inc., supra, at 755 (“[T]he
Restatement . . . is a useful beginning point for a discussion of general
agency principles”); see also Meritor, supra, at 72.
The Restatement of Agency places strict limits on the extent to which
an agent’s misconduct may be imputed to the principal for purposes of
awarding punitive damages:
“Punitive damages can properly be awarded against a master or other principal
because of an act by an agent if, but only if:
“(a) the principal authorized the doing and the manner of the act, or
“(b) the agent was unfit and the principal was reckless in employing
him, or
“(c) the agent was employed in a managerial capacity and was acting in
the scope of employment, or
“(d) the principal or a managerial agent of the principal ratified or
approved the act.” Restatement (Second) of Agency, supra, §217
C.
See also Restatement (Second) of Torts §909 (same).
The Restatement, for example, provides that the principal may be liable
for punitive damages if it authorizes or ratifies the agent’s tortious
act, or if it acts recklessly in employing the malfeasing agent. The
Restatement also contemplates liability for punitive awards where an
employee serving in a “managerial capacity” committed the wrong while
“acting in the scope of employment.” Restatement (Second) of Agency, supra,
§217 C; see also Restatement (Second) of Torts, supra, §909
(same). “Unfortunately, no good definition of what constitutes a ‘managerial
capacity’ has been found,” 2 Ghiardi, supra, §24.05, at 14,
and determining whether an employee meets this description requires a
fact-intensive inquiry, id., §24.05; 1 L. Schlueter & K.
Redden, Punitive Damages, §4.4(B)(2)(a), p. 182 (3d ed. 1995). “In making
this determination, the court should review the type of authority that
the employer has given to the employee, the amount of discretion that
the employee has in what is done and how it is accomplished.” Id.,
§4.4(B)(2)(a), at 181. Suffice it to say here that the examples provided
in the Restatement of Torts suggest that an employee must be “important,”
but perhaps need not be the employer’s “top management, officers, or
directors,” to be acting “in a managerial capacity.” Ibid.;
see also 2 Ghiardi, supra, §24.05, at 14; Restatement (Second)
of Torts, §909, at 468, Comment b and Illus. 3.
Additional questions arise from the meaning of the “scope of employment”
requirement. The Restatement of Agency provides that even intentional
torts are within the scope of an agent’s employment if the conduct is
“the kind [the employee] is employed to perform,” “occurs substantially
within the authorized time and space limits,” and “is actuated, at least
in part, by a purpose to serve the” employer. Restatement (Second) of
Agency, supra, §228(1), at 504. According to the Restatement,
so long as these rules are satisfied, an employee may be said to act
within the scope of employment even if the employee engages in acts “specifically
forbidden” by the employer and uses “forbidden means of accomplishing
results.” Id., §230, at 511, Comment b; see also Burlington
Industries, Inc., supra, at 756; Keeton, Torts §70. On
this view, even an employer who makes every effort to comply with Title
VII would be held liable for the discriminatory acts of agents acting
in a “managerial capacity.”
Holding employers liable for punitive damages when they engage in good
faith efforts to comply with Title VII, however, is in some tension with
the very principles underlying common law limitations on vicarious liability
for punitive damages–that it is “improper ordinarily to award punitive
damages against one who himself is personally innocent and therefore
liable only vicariously.” Restatement (Second) of Torts, supra,
§909, at 468, Comment b. Where an employer has undertaken such
good faith efforts at Title VII compliance, it “demonstrat[es] that it
never acted in reckless disregard of federally protected rights.” 139
F.3d, at 974 (Tatel, J., dissenting); see also Harris, 132 F.3d,
at 983, 984 (observing that, “[i]n some cases, the existence of a written
policy instituted in good faith has operated as a total bar to employer
liability for punitive damages” and concluding that “the institution
of a written sexual harassment policy goes a long way towards dispelling
any claim about the employer’s ‘reckless’ or ‘malicious’ state of mind”).
Applying the Restatement of Agency’s “scope of employment” rule in the
Title VII punitive damages context, moreover, would reduce the incentive
for employers to implement antidiscrimination programs. In fact, such
a rule would likely exacerbate concerns among employers that §1981a’s
“malice” and “reckless indifference” standard penalizes those employers
who educate themselves and their employees on Title VII’s prohibitions.
See Brief for Equal Employment Advisory Council as Amicus Curiae 12
(“[I]f an employer has made efforts to familiarize itself with Title
VII’s requirements, then any violation of those requirements by the employer
can be inferred to have been committed ‘with malice or with reckless
indifference’ ”). Dissuading employers from implementing programs or
policies to prevent discrimination in the workplace is directly contrary
to the purposes underlying Title VII. The statute’s “primary objective”
is “a prophylactic one,” Albemarle Paper Co. v. Moody,
422 U.S. 405, 417 (1975); it aims, chiefly, “not to provide redress but
to avoid harm,” Faragher, 524 U.S., at 806. With regard to sexual
harassment, “[f]or example, Title VII is designed to encourage the creation
of antiharassment policies and effective grievance mechanisms.” Burlington
Industries, Inc., 524 U.S., at 764. The purposes underlying Title
VII are similarly advanced where employers are encouraged to adopt antidiscrimination
policies and to educate their personnel on Title VII’s prohibitions.
In light of the perverse incentives that the Restatement’s “scope of
employment” rules create, we are compelled to modify these principles
to avoid undermining the objectives underlying Title VII. See generally ibid.
See also Faragher, supra, at 802, n. 3 (noting that
Court must “adapt agency concepts to the practical objectives of Title
VII”); Meritor Savings Bank, FSB, 477 U.S., at 72 (“[C]ommon-law
principles may not be transferable in all their particulars to Title
VII”). Recognizing Title VII as an effort to promote prevention as well
as remediation, and observing the very principles underlying the Restatements’
strict limits on vicarious liability for punitive damages, we agree that,
in the punitive damages context, an employer may not be vicariously liable
for the discriminatory employment decisions of managerial agents where
these decisions are contrary to the employer’s “good-faith efforts to
comply with Title VII.” 139 F.3d, at 974 (Tatel, J., dissenting). As
the dissent recognized, “[g]iving punitive damages protection to employers
who make good-faith efforts to prevent discrimination in the workplace
accomplishes” Title VII’s objective of “motivat[ing] employers to detect
and deter Title VII violations.” Ibid.
We have concluded that an employer’s conduct need not be independently
“egregious” to satisfy §1981a’s requirements for a punitive damages award,
although evidence of egregious misconduct may be used to meet the plaintiff ’s
burden of proof. We leave for remand the question whether petitioner
can identify facts sufficient to support an inference that the requisite
mental state can be imputed to respondent. The parties have not yet had
an opportunity to marshal the record evidence in support of their views
on the application of agency principles in the instant case, and the
en banc majority had no reason to resolve the issue because it concluded
that petitioner had failed to demonstrate the requisite “egregious” misconduct.
139 F.3d, at 968. Although trial testimony established that Allen made
the ultimate decision to promote Spangler while serving as petitioner’s
interim executive director, respondent’s highest position, Tr. 159 (Oct.
19, 1995), it remains to be seen whether petitioner can make a sufficient
showing that Allen acted with malice or reckless indifference to petitioner’s
Title VII rights. Even if it could be established that Wheat effectively
selected O’Donnell’s replacement, moreover, several questions would remain, e.g.,
whether Wheat was serving in a “managerial capacity” and whether he behaved
with malice or reckless indifference to petitioner’s rights. It may also
be necessary to determine whether the Association had been making good
faith efforts to enforce an antidiscrimination policy. We leave these
issues for resolution on remand.
For the foregoing reasons, the decision of the Court of Appeals is vacated,
and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Rehnquist, C. J., dissenting
Chief Justice Rehnquist, with whom Justice Thomas joins, concurring in
part and dissenting in part.
For the reasons stated by Judge Randolph in his concurring opinion in
the Court of Appeals, I would hold that Congress’ two-tiered scheme of
Title VII monetary liability implies that there is an egregiousness requirement
that reserves punitive damages only for the worst cases of intentional
discrimination. See 139 F.3d 958, 970 (CADC 1998). Since the Court has
determined otherwise, however, I join that portion of Part II—B of the
Court’s opinion holding that principles of agency law place a significant
limitation, and in many foreseeable cases a complete bar, on employer
liability for punitive damages.
Opinion of Stevens, J.
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice
Breyer join, concurring in part and dissenting in part.
The Court properly rejects the Court of Appeals’ holding that defendants
in Title VII actions must engage in “egregious” misconduct before a jury
may be permitted to consider a request for punitive damages. Accordingly,
I join Parts I and II—A of its opinion. I write separately, however,
because I strongly disagree with the Court’s decision to volunteer commentary
on an issue that the parties have not briefed and that the facts of this
case do not present. I would simply remand for a trial on punitive damages.
I
In enacting the Civil Rights Act of 1991 (1991 Act), Congress established
a three-tiered system of remedies for a broad range of discriminatory
conduct, including violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., as well as some violations
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et
seq. (1994 ed. and Supp II). Equitable remedies are available for
disparate impact violations; compensatory damages for intentional disparate
treatment; and punitive damages for intentional discrimination “with
malice or with reckless indifference to the federally protected rights
of an aggrieved individual.” §1981a(b)(1).
The 1991 Act’s punitive damages standard, as the Court recognizes, ante, at
7, is quite obviously drawn from our holding in Smith v. Wade,
461 U.S. 30 (1983). There, we held that punitive damages may be awarded
under 42 U.S.C. § 1983 (1976 ed., Supp. V) “when the defendant’s conduct
is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of
others.” 461 U.S.,at 56. The 1991 Act’s standard is also the
same intent-based standard used in the Age Discrimination in Employment
Act of 1967 (ADEA), 29 U.S. C. §621 et seq. (1994 ed. and Supp.
II). The ADEA provides for an award of liquidated damages–damages that
are “punitive in nature,” Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 125 (1985)–when the employer “knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the statute.” Hazen
Paper Co. v. Biggins, 507 U.S. 604, 617 (1993); accord, Thurston, 469
U.S., at 126.
In Smith, we carefully noted that our punitive damages standard
separated the “quite distinct concepts of intent to cause injury,
on one hand, and subjective consciousness of risk of injury
(or of unlawfulness) on the other,” 461 U.S., at 38, n. 6, and held that
punitive damages are permissible only when the latter component is satisfied
by a deliberate or recklessly indifferent violation of federal law. In Thurston, we
interpreted the ADEA’s standard the same way and explained that the relevant
mental distinction between intentional discrimination and “reckless disregard”
for federally protected rights is essentially the same as the well-known
difference between a “knowing” and a “willful” violation of a criminal
law. See 469 U.S., at 126—127. While a criminal defendant, like an employer,
need not have knowledge of the law to act “knowingly” or intentionally,
he must know that his acts violate the law or must “careless[ly] disregard
whether or not one has the right so to act” in order to act “willfully.” United
States v. Murdock, 290 U.S. 389, 395 (1933), quoted in Thurston, 469
U.S., at 127. We have interpreted the word “willfully” the same way in
the civil context. See McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988) (holding that the “plain language” of the Fair Labor
Standards Act’s “willful” liquidated damages standard requires that “the
employer either knew or showed reckless disregard for the matter of whether
its conduct was prohibited by the statute,” without regard to the outrageousness
of the conduct at issue).
Construing §1981a(b)(1) to impose a purely mental standard is perfectly
consistent with the structure and purpose of the 1991 Act. As with the
ADEA, the 1991 Act’s “willful” or “reckless disregard” standard respects
the Act’s “two-tiered” damages scheme while deterring future intentionally
unlawful discrimination. See Hazen Paper, 507 U.S.,at 614—615.
There are, for reasons the Court explains, see ante, at 8—9,
numerous instances in which an employer might intentionally treat an
individual differently because of her race, gender, religion, or disability
without knowing that it is violating Title VII or the ADA. In order to
recover compensatory damages under the 1991 Act, victims of unlawful
disparate treatment must prove that the defendants’ conduct was
intentional, but they need not prove that the defendants either knew
or should have known that they were violating the law. It is
the additional element of willful or reckless disregard of the law that
justifies a penalty of double damages in age discrimination cases and
punitive damages in the broad range of cases covered by the 1991 Act.
It is of course true that as our society moves closer to the goal of
eliminating intentional, invidious discrimination, the core mandates
of Title VII and the ADA are becoming increasingly ingrained in employers’
minds. As more employers come to appreciate the importance and the proportions
of those statutes’ mandates, the number of federal violations will continue
to decrease accordingly. But at the same time, one could reasonably believe,
as Congress did, that as our national resolve against employment discrimination
hardens, deliberate violations of Title VII and the ADA become increasingly
blameworthy and more properly the subject of “societal condemnation,” McKennon v. Nashville
Banner Publishing Co., 513 U.S. 352, 357 (1995), in the form of
punitive damages. Indeed, it would have been rather perverse for Congress
to conclude that the increasing acceptance of antidiscrimination laws
in the workplace somehow mitigates willful violations of those laws such
that only those violations that are accompanied by particularly outlandish
acts warrant special deterrence.
Given the clarity of our cases and the precision of Congress’ words,
the common-law tradition of punitive damages and any relationship it
has to “egregious conduct” is quite irrelevant. It is enough to say that
Congress provided in the 1991 Act its own punitive damages standard that
focuses solely on willful mental state, and it did not suggest that there
is any class of willful violations that are exempt from exposure to punitive
damages. Nor did it indicate that there is a point on the spectrum of
deliberate or recklessly indifferent conduct that qualifies as “egregious.”
Thus, while behavior that merits that opprobrious label may provide probative
evidence of wrongful motive, it is not a necessary prerequisite to proving
such a motive under the 1991 Act. To the extent that any treatise or
federal, state, or “common-law” case might suggest otherwise, it is wrong.
There are other means of proving that an employer willfully violated
the law. An employer, may, for example, express hostility toward employment
discrimination laws or conceal evidence regarding its “true” selection
procedures because it knows they violate federal law. Whatever the case,
so long as a Title VII plaintiff proffers sufficient evidence from which
a jury could conclude that an employer acted willfully, judges have no
place making their own value judgments regarding whether the conduct
was “egregious” or otherwise presents an inappropriate candidate for
punitive damages; the issue must go to the jury.
If we accept the jury’s appraisal of the evidence in this case and draw,
as we must when reviewing the denial of a jury instruction, all reasonable
inferences in petitioner’s favor, there is ample evidence from which
the jury could have concluded that respondent willfully violated Title
VII. Petitioner emphasized, at trial and in her briefs to this Court,
that respondent took “a tangible employment action” against her in the
form of denying a promotion. Brief for Petitioner 47. Evidence indicated
that petitioner was the more qualified of the two candidates for the
job. Respondent’s decisionmakers, who were senior executives of the Association,
were known occasionally to tell sexually offensive jokes and referred
to professional women in derogatory terms. The record further supports
an inference that these executives not only deliberately refused to consider
petitioner fairly and to promote her because she is a woman, but they
manipulated the job requirements and conducted a “sham” selection procedure
in an attempt to conceal their misconduct.
There is no claim that respondent’s decisionmakers violated any company
policy; that they were not acting within the scope of their employment;
or that respondent has ever disavowed their conduct. Neither the respondent
nor its two decisionmakers claimed at trial any ignorance of Title VII’s
requirements, nor did either offer any “good-faith” reason for believing
that being a man was a legitimate requirement for the job. Rather, at
trial respondent resorted to false, pretextual explanations for its refusal
to promote petitioner.
The record, in sum, contains evidence from which a jury might find that
respondent acted with reckless indifference to petitioner’s federally
protected rights. It follows, in my judgment, that the three-judge panel
of the Court
of Appeals correctly decided to remand the case to the district court
for a trial on punitive damages. See 108 F.3d 1431, 1440 (CADC 1997).
To the extent that the Court’s opinion fails to direct that disposition,
I respectfully dissent.
II
In Part II—B of its opinion, the Court discusses the question “whether
liability for punitive damages may be imputed to respondent” under “agency
principles.” Ante, at 12. That is a question that neither of
the parties has ever addressed in this litigation and that respondent,
at least, has expressly disavowed. When prodded at oral argument, counsel
for respondent twice stood firm on this point. “[W]e all agree,” he twice
repeated, “that that precise issue is not before the Court” Tr. of Oral
Arg. 49. Nor did any of the 11 judges in the Court of Appeals believe
that it was applicable to the dispute at hand–presumably because promotion
decisions are quintessential “company acts,” see 139 F.3d 958, 968 (CADC
1998), and because the two executives who made this promotion decision
were the executive director of the Association and the acting head of
its Washington office. Id., at 974, 979 (Tatel, J., dissenting).
See also 108 F.3d, at 1434, 1439. Judge Tatel, who the Court implies
raised the agency issue, in fact explicitly (and correctly) concluded
that “[t]his case does not present these or analogous circumstances.”
108 F.3d, at 1439.
The absence of briefing or meaningful argument by the parties makes this
Court’s gratuitous decision to volunteer an opinion on this nonissue
particularly ill advised. It is not this Court’s practice to consider
arguments–specifically, alternative defenses of the judgment under review–that
were not presented in the brief in opposition to the petition for certiorari.
See this Court’s Rule 15.2. Indeed, on two occasions in this very Term,
we refused to do so despite the fact that the issues were briefed and
argued by the parties. See South Central Bell Telephone Co. v. Alabama,
526 U.S. ___ , ___ (1999) (slip op., at 10); Roberts v. Galen
of Virginia, Inc., 525 U.S. ___ , ___ (1999) (per curiam) (slip
op., at 4-5 ). If we declined to reach alternate defenses under those
circumstances, surely we should do so here.
Nor is it accurate for the Court to imply that the Solicitor General
as amicus advocates a course similar to that which the Court
takes regarding the agency question. Cf. ante, at 12. The Solicitor
General, like the parties, did not brief any agency issue. At oral argument,
he correspondingly stated that the issue “is not really presented here.”
Tr. of Oral Arg. 19. He then responded to the Court’s questions by stating
that the Federal Government believes that whenever a tangible employment
consequence is involved §1981a incorporates the “managerial capacity”
principles espoused by §217C of the Restatement (Second) of Agency. See
Tr. of Oral Arg. 23. But to the extent that the Court tinkers with the
Restatement’s standard, it is rejecting the Government’s view of its
own statute without giving it an opportunity to be heard on the issue.
Accordingly, while I agree with the Court’s rejection of the en banc
majority’s holding on the only issue that it confronted, I respectfully
dissent from the Court’s failure to order a remand for trial on the punitive
damages issue.
Notes
*. Lest there be any doubt that Congress looked to Smith in
crafting the statute, the Report of the House Judiciary Committee explains
that the “standard for punitive damages is taken directly from civil
rights case law,” H. R. Rep. No. 102—40, pt. 2, p. 29, (1991) and proceeds
to quote and cite with approval the very page in Smith that
announced the punitive damages standard requiring “evil motive or intent,
or … reckless or callous indifference to the federally protected rights
of others,” 461 U.S., at 56, quoted in H. R. Rep. No. 102—40, at 29.
The Report of the House Education and Labor Committee echoed this sentiment.
See H. R. Rep. No. 102—40, p. 74 (1991) (citing Smith with approval).
Congress’ substitution in the 1991 Act of the word “malice” for Smith v. Wade’s
phrase “evil motive or intent” is inconsequential; in Smith, we
noted that “malice … may be an appropriate” term to denote ill will or
an intent to injure. See 461 U.S., at 37, n. 6.