Front Pay vs. Back Pay
Back pay and front pay are two distinct lost-wages remedies in employment cases. Back pay covers what the employee should have earned from the date of the unlawful action up to the date of trial. Front pay covers projected lost earnings going forward, from trial into the future, when reinstatement is not a workable remedy.
KEY TAKEAWAYS
- Back pay covers wages and benefits lost from the date of the unlawful act to the date of trial, minus mitigation earnings.
- Front pay covers projected future lost earnings, reduced to present value, awarded only when reinstatement is unworkable.
- Pollard v. E.I. du Pont de Nemours (2001) 532 U.S. 843 confirmed that front pay does not count against Title VII compensatory caps because it is equitable relief.
- FEHA at Gov. Code §12965 authorizes both with no statutory ceiling; attorney's fees and costs add on under §12965(c).
FEHA authorizes both at Gov. Code §12965(c) and 12965(b), and Title VII permits them at 42 U.S.C. §2000e-5(g). Back pay is more straightforward: lost wages, lost commissions, lost benefits, plus prejudgment interest, minus mitigation (what the employee actually earned or reasonably could have earned at another job).
Front pay is harder to calculate and is reserved for cases in which reinstatement is impossible (hostility between the parties, the position no longer exists, the employee took a different path). The court projects the wage gap forward over a reasonable horizon, often two to ten years depending on the case, and reduces the amount to present value. The Supreme Court in Pollard v. E.I. du Pont de Nemours & Co. (2001) 532 U.S. 843 confirmed that front pay does not count against Title VII compensatory-damages caps because it is a separate equitable remedy.
Example: A 54-year-old project manager wins her age-discrimination case three years after her firing. Back pay covers her three years of lost wages and benefits (with mitigation offsets for the consulting work she picked up). Because the employer is hostile to her return, the court awards front pay for an additional four years at her old salary, reduced to present value. Together with attorney's fees under Gov. Code §12965(c), those are her core financial recovery.
Filing windows for the underlying claim apply: three years to the CRD under Gov. Code §12960; 300 days to the EEOC. A California employment discrimination lawyer can model the realistic damages range for your facts.
From our practice: We model damages at intake using three scenarios: a likely back-pay window if the case settles in 12-18 months, a litigated back-pay window through trial, and a discounted front-pay calculation assuming reinstatement fails. Clients who go into mediation with that range tend to settle for the high end of it. The plaintiffs who skip the math leave money on the table.
Attorney Advertising. Page reviewed by David M. Safvati, CA Bar #326605. This advertisement is the responsibility of Westview Law PC.
