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In Punitive Damages, Due Process, and Employment Discrimination, Joseph Seiner tackles the growing complexity of employment discrimination punitive damages claims and provides a workable solution to a difficult problem. Given the importance of punitive damages in shaping incentives to bring discrimination suits, his contribution is valuable, especially in trying to align recent constitutional punitive damages cases with the underlying discrimination law.

This Essay begins by emphasizing the fundamental idea on which Professor Seiner and I agree-that there should be little room for courts to reduce punitive damages in federal employment discrimination cases based on constitutional concerns about excessiveness. Title VII contains express damages limitations that alleviate such concerns.

The Essay continues by discussing whether the Supreme Court's decision in Exxon Shipping Co. v. Baker applies to federal discrimination claims. In arguing that there is little need for courts to use due process limits on punitive damages in federal discrimination cases, Professor Seiner draws on the underlying rationales of Exxon. Part II demonstrates how invoking Exxon is problematic because courts might use its reasoning to impose unnecessary and inappropriate limits on punitive damages, even those that fall within Title VII's modest damages cap.

Finally, this Essay supplements the multi-part test suggested by Professor Seiner. Professor Seiner's model involves situations in which the employer is being held vicariously liable for punitive damages. Part III argues that employers also should face direct liability for punitive damages and provides the contours for such analysis. Any punitive damages test that is centered on expressed Supreme Court norms related to agency principles will necessarily be underinclusive as to possible punitive damages awards against employers. To date, the Supreme Court has failed to fully explore how employers are liable for their own intentional conduct rather than just derivatively liable for the acts of their agents.


This article was published in 97 Iowa L. Rev. Bull. 24 (2012).