OCTOBER TERM, 1998
Syllabus
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 stat-
527
ute'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. 533-539.
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
528
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 of Agency'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. 539-546.
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. P. 546.
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,
post,
p. 547. STEVENS, J., filed an opinion concurring in part and
dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined,
post, p. 547.
Eric Schnapper argued the cause for petitioner. With him
on the briefs was
Joseph A. Yablonski.
529
Solicitor General Waxman argued the cause for the United States
et al. as amici curiae in support of petitioner. With him on the
brief were Acting Assistant Attorney General Lee, Deputy Solicitor
General Underwood, Patricia A. Millett, Dennis
J. Dimsey,
Gregory B. Friel, C. Gregory Stewart, Philip B. Sklover, and Robert
J. Gregory.
Raymond C.
Fay argued the cause for respondent.
With him on the brief were
Stephen D. Shawe, Bruce S.
Harrison, and
Peter M. Sfikas. *
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 em-
*Briefs of
amici curiae urging reversal were filed for
the Association of Trial Lawyers of America by
Jeffrey L.
Needle and
Mark S.
Mandell; for the National
Employment Lawyers Association et al. by
Janice Goodman, Paula
A. Brantner, and
Peter S.
Rukin; and for the
Rutherford Institute by
John W Whitehead and
Steven H.
Aden.
Briefs of
amici curiae urging affirmance were filed for
the Equal Employment Advisory Council by
Robert E. Williams
and
Ann Elizabeth Reesman; for the National Retail
Federation by
Robert P. Joy; for the Society for Human
Resource Management by
D. Gregory Valenza and
Roger
S.
Kaplan; and for the Washington Legal Foundation by
Michael J. Connolly, David A. Lawrence,
Clifford J. Scharman, Daniel J.
Popeo, and
Paul D. Kamenar.
Briefs of amici curiae were filed for the Chamber of Commerce of
the United States by Timothy B. Dyk, Daniel H. Bromberg, John B.
Kennedy, Stephen A. Bokat, and Robin S. Conrad; and for the
Lawyers' Committee for Civil Rights Under Law et al. by James M.
Finberg, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas
J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Dennis
C. Hayes, Willie Abrams, Antonia Hernandez, Patricia Mendoza,
Judith L. Lichtman, Donna R. Lenhoff, Judith C. Appelbaum, Martha
F. Davis, Yolanda S. Wu, and Steven R. Shapiro.
530
ployer 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 re-
531
placement. 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 132136 (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.
I d., 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
532
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.109110. 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
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 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 (CAl1987)), 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
533
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. 960 (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 pro-
534
vided 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 bane 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
535
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 538-539; 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
536
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 a 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
537
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 the 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").
538
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, 210 (Alaska 1995)
539
("[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,
540
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 552-553 (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 546, 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
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. 1. &
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 bane majority
and dissent, see 139 F. 3d, at 968;
id., at 974 (Tatel, J.,
dissenting),
amicus
541
briefing, see Brief for Chamber of Commerce of the United States
as
Amicus Curiae 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 552. 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, 13221323
(CAll 1999);
Harris v.
L
&
L Wings, Inc., 132 F.3d
978, 983-985
(CA4 1997). See also
Fitzgerald v.
Mountain States Telephone &
Telegraph Co.,
68 F.3d
1257, 1263-1264 (CAlO 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
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
542
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 ("[WJe 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
543
"(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, Punitive Damages,
§ 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. 181 (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,
supra, § 909, at 468,
Comment band 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. Restate-
544
ment (Second) of Agency, § 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.,
524 U. S., 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
545
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]ommonlaw 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
546
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 judgment of the Court of Appeals
is vacated, and the case is remanded for proceedings consistent
with this opinion.
It is so ordered.
547
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 Part I and 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.
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.
III). Equitable remedies are available
548
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
individua1." § 1981a(b)(1).
The 1991 Act's punitive damages standard, as the Court
recognizes,
ante, at 535-536, 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. III). The ADEA provides for an award of
liquidated damagesdamages 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.
*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'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.
549
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 536537, numerous instances
in which an employer might intentionally treat an individual
differently because of her race,
550
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
551
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 manipulated the job requirements
and conducted a
552
"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 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 "[t]he plaintiff must impute liability for punitive damages
to respondent" under "agency principles."
Ante, at 539. 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 direc-
553
tor 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. 160, 171 (1999);
Roberts v.
Galen of Va.,
Inc., 525 U. S.
249, 253-254 (1999)
(per curiam). If we declined to
reach alternative defenses under those circumstances, surely we
should do so here.
Nor is it accurate for the Court to imply that the Solicitor
General, representing Government
amici, advocates a course
similar to that which the Court takes regarding the agency
question. Cf.
ante, at 540. 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 § 217
C 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.
554
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.
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