I'll Never Work in this Town Again
The concept of "front pay" has been applied in such an inconsistent and undisciplined fashion in recent years by so many courts that it makes the purchase of lottery tickets seem like a foolish investment, given that the odds of being set up for life are much better in an employment discrimination lawsuit. The fact that calculation of front pay awards is overwhelmingly speculative enterprise does not seem to deter many courts. Only a rather small handful of judges seemed troubled by the notion of paying a plaintiff for the rest of his or her life for not working, or for working in a less demanding job than the job that was lost. The rest of the judges are largely willing to leave it up to juries to decide, even though front pay was never intended to be determined by juries in the first place. Impressive sounding experts with doctorates in economics can make it sound as if a plaintiff has already suffered a substantial monetary loss when in fact the "loss" is merely a product of the expert's imagination concerning what might happen in the future. The defendant is placed in the awkward position of having to hire an expert to argue that the plaintiff's loss is not really as large as the plaintiff's expert claims - which not only makes the imaginary loss seem more real but it implies that the defendant has already conceded liability and is only quibbling over how badly the plaintiff was damaged.
This article appeared in the Winter 2002 issue of the Employee Relations Law Journal.