Punitive damages - those awarded to punish an employer for its discriminatory acts - are available under Title VII in certain circumstances. Can they be awarded if the plaintiff has suffered no other damages? Courts are split on the issue. The Second Circuit, addressing the issue for the first time, has just handed down a definite "yes." The Court affirmed a jury verdict of $100,000 in punitive damages, but no other damages, for Tonia Cush-Crawford in a sexual harassment case against Adchem Corp. Cush-Crawford v. Adchem Corp., 2d Cir., No. 00-7617, 11/16/01.

Cush-Crawford was hired by Adchem as a lab technician. Before she even started work, Mars (who interviewed her and would be her supervisor) called her at home several times. Her first week on the job, Mars told her she was beautiful, complimented her clothing, paged her for no apparent reason, and repeatedly asked her to work out with him at a gym. Cush-Crawford initially refused, but relented when Mars started complaining about her work performance.

Two weeks into the job, Mars asked Cush-Crawford to go with him to a weekend Caribbean festival in Toronto. She agreed to go only after Mars reminded her that he was responsible for her weekly evaluations. Cush-Crawford rebuffed Mars''s sexual advances during the trip, and when they returned, he made negative comments about her work habits. The same thing happened one week later when Mars asked Cush-Crawford to join him on a one-day trip to Boston for another festival. She initially refused, but said yes out of concern for completing her probationary period. On this trip Mars made an unannounced detour to a motel, where Cush- Crawford again rejected his sexual advances. Mars responded by pointing out that he could fire her. Back at work, Mars again complained about Cush-Crawford''s work performance.

Cush-Crawford told a company vice president of Mars''s behavior, who responded that he was aware of the situation. Despite telling Mars that she was not interested in a relationship, he continued to ask her out, mailed greeting cards to her home, continued to comment on her appearance, and asked her to accompany him on another company trip. Again, Cush-Crawford complained.

This time she was transferred to another plant and Mars was suspended. After a while at the new plant, Cush-Crawford requested a transfer back to her the first plant. Her request was granted and she was not directly supervised by Mars. She experienced an unrelated on-the-job injury a few months later and did not return to work at Adchem.

Cush-Crawford then sued for sexual harassment. A jury found that she had suffered no actual injury - i.e., no economic loss, and no "pain and suffering or mental anguish." The jury did find, however, that she should be awarded $100,000 as punishment to Adchem. Title VII permits an award of punitive damages if the employee shows that the employer "engaged in a discriminatory practice ... with malice or reckless indifference to the [employee''s] federally protected rights." The trial court added $56,000 in attorneys'' fees and costs. Adchem appealed.

The 1991 Civil Rights Act permits recovery under Title VII of between $50,000 and $300,000 for punitive and compensatory damages based on the size of the employer. There was a maximum of $100,000 in damages available to Cush-Crawford due to Adchem''s size. The jury gave her $0 in compensatory damages and $100,000 in punitives.

Federal appeals courts have split on whether punitive damages are available under Title VII in the absence of an award of compensatory damages. The Seventh Circuit permits punitive damages in such situations. The First Circuit takes the opposite view. Interpreting a similar provision under the Fair Housing Act, the Third Circuit permits punitive damages in the absence of compensatory damages, but the Fourth and Fifth Circuits do not.

Citing the different purposes underlying the award of compensatory damages and punitive damages, the Second Circuit said that it would be improper for an employer who acted with malice or reckless indifference to the employee''s rights to escape the award of punitive damages just because the employee was fortunate enough to avoid suffering actual harm. The split among appellate courts suggests that this issue is ripe for consideration by the U.S. Supreme Court.