3d Cir. Model Jury Instr. (Civil) 5.4.3

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Last updated March 2026

An instruction on back pay is nonetheless included because the parties or the court may 106

wish to empanel an advisory jury–especially given the fact that in most cases the plaintiff will be 107

seeking compensatory damages and the jury will be sitting anyway. See Fed. R. Civ. P. 39(c). 108

Alternatively, the parties may agree to a jury determination on back pay, in which case this 109

instruction would also be appropriate. In many cases it is commonplace for back pay issues to be 110

submitted to the jury. The court may think it prudent to consult with counsel on whether the issues 111

of back pay or front pay should be submitted to the jury (on either an advisory or stipulated basis) 112

or are to be left to the court ’s determination without reference to the jury. Instruction 5.4.1, on 113

compensatory damages, instructs the jury in such cases to provide separate awards for 114

compensatory damages, back pay, and front pay. 115

Computation of Back Pay 116

The appropriate standard for measuring a back pay award under Title VII is “to take the 117

difference between the actual wages earned and the wages the individual would have earned in the 118

position that, but for discrimination, the individual would have attained. ” Gunby v. Pennsylvania 119

Elec. Co., 840 F.2d 1108, 1119 -20 (3d Cir. 1988). For a discussion of the limits on use of lay 120

witness testimony to establish back pay and front pay calculations, see Donlin, 581 F.3d at 81-83. 121

For a discussion of the use of comparators to establish what the plaintiff would have earned as an 122

employee of the defendant, see id. at 90. 123

42 U.S.C. § 2000e-5(g)(1) provides that “[b]ack pay liability shall not accrue from a date 124

more than two years prior to the filing of a charge with the Commission. ” The court of appeals 125

has explained that “[t]his constitutes a limit on liability, not a statute of limitations, and has been 126

interpreted as a cap on the amount of back pay that may be awarded under Title VII. ” Bereda v. 127

Pickering Creek Indus. Park, Inc., 865 F.2d 49, 54 (3d Cir. 1989). The Bereda court held that it 128

was plain error to fail to instruct the jury on an analogous cap under Pennsylvania law (which set 129

the relevant limit under the circumstances of the case). See id. Accordingly, when the facts of the 130

case make Section 2000e-5’s cap relevant, the court should instruct the jury on it. 131

Section 2000e-5’s current framework for computing a back pay award for Title VII pay 132

discrimination claims reflects Congress ’s response to the Supreme Court ’s decision in Ledbetter 133

v. Goodyear Tire & Rubber Co., Inc. , 550 U.S. 618 (2007). Ledbetter asserted a Title VII pay 134

discrimination claim; specifically, she claimed that she received disparate pay during the charge 135

filing period as a result of intentional discrimination in pay decisions prior to the charge filing 136

period. A closely divided Court held this claim untimely: “A new violation does not occur, and a 137

new charging period does not commence, upon the occurrence of subsequent nondiscriminatory 138

acts that entail adverse effects resulting from the past discrimination. ” Id. at 628. Finding, inter 139

alia, that the Ledbetter decision “significantly impairs statutory protections against discrimination 140

in compensation . . . . by unduly restricting the time period in which victims of discrimination can 141

challenge and recover for discriminatory compensation decisions or other practices, contrary to 142