WPI 330.82 Employment Discrimination—Damages—Future Lost Earnings (Front Pay)

Use this instruction when the plaintiff requests front pay as an element of damages, together with paragraph (2) of WPI 330.81 (Employment Discrimination—Damages—Economic and Non-Economic—No After-Acquired Evidence).

Use of the term “retire” may not be appropriate in all cases. This instruction may have to be modified if there is proof in the case that the business was or will be sold.

As appropriate, combine this instruction with applicable portions of WPI 34.02 (Damages Arising in the Future—Discount to Present Cash Value).

Front pay and reinstatement are generally viewed as alternative remedies. Front pay is a jury issue under Washington law. The issue of reinstatement is more complex.It is an equitable remedy for decision by the court. It will be necessary to evaluate the appropriateness of a front pay instruction in a case in which potential reinstatement is an issue. Goodman v. Boeing Co., 75 Wn.App. 60, 78–79, 877 P.2d 703 (1994), affirmed, 127 Wn.2d 401, 899 P.2d 1265 (1995); Wheeler v. Catholic Archdiocese of Seattle, 65 Wn.App. 552, 573, 829 P.2d 196 (1992), reversed on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994).

“Front pay should be awarded ‘for a reasonably certain period of time that does not exceed the likely duration of the terminated employment.’” Lords v. N. Auto. Corp., 75 Wn.App. 589, 605, 881 P.2d 256 (1994), overruled on other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995) (quoting Hayes v. Trulock, 51 Wn.App. 795, 802, 755 P.2d 830 (1988)); see also Weil v. Citizens Telecom Servs. Co., 2019 WL 5862965 (W.D. Wash. Nov. 8, 2019) (noting recovery of back pay or front pay by an employee who succeeds on the merits of their WLAD and Title VII discrimination claims may be limited where the employee would have been subsequently terminated for lawful or non-discriminatory reasons).

In an age discrimination case, unless the employer provides evidence to the contrary, a jury may be told to consider that an illegally-discharged employee would have continued working for the employer until he or she reached the normal age of retirement. See Lords, 75 Wn.App. at 605. In other cases, the determination of future lost earnings, including the number of years, is generally left to the jury to determine, once an employee produces evidence from which a reasonable future employment period may be projected. See also Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210–11, 87 P.3d 757 (2004) (front pay instruction to calculate future damages from today until the time plaintiff may reasonably be expected to retire was improper because duration of future employment may not extend to retirement).

In Goodman, an award of damages had included subrogating the employer to the plaintiff's future workers' compensation benefits. Goodman, 75 Wn.App. at 87–88.