3d Cir. Model Jury Instr. (Civil) 9.4.2

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Last updated March 2026

527 U.S. 526, 535-36 (1999)). 76

The Kolstad Court further held that an employer may be held liable for a punitive damage 77

award for the intentionally discriminatory conduct of its employee only if the employee served the 78

employer in a managerial capacity, committed the intentional discrimination at issue while acting 79

in the scope of employment, and the employer did not engage in good faith efforts to comply with 80

federal law. Kolstad, 527 U.S. at 545-46. In determining whether an employee is in a managerial 81

capacity, a court should review the type of authority that the employer has given to the employee 82

and the amount of discretion that the employee has in what is done and how it is accomplished. 83

Id., 527 U.S. at 543. 84

The Court in Kolstad established an employer ’s good faith as a defense to punitive 85

damages, but it did not specify whether it was an affirmative defense or an element of the plaintiff’s 86

proof for punitive damages. The instruction sets out the employer’s good faith attempt to comply 87

with anti-discrimination law as an affirmative defense. The issue has not yet been decided in the 88

Third Circuit, but the weight of authority in the other circuits establishes that the defendant has the 89

burden of showing a good -faith attempt to comply with laws prohibiting discrimination. See 90

Medcalf v. Trustees of University of Pennsylvania, 71 Fed. Appx. 924, 933 n.3 (3d Cir. 2003) 91

(noting that “the Third Circuit has not addressed the issue of whether the good faith compliance 92

standard set out in Kolstad is an affirmative defense for which the defendant bears the burden of 93

proof, or whether the plaintiff must disprove the defendant’s good faith compliance with Title VII 94

by a preponderance of the evidence ”; but also noting that. “[a] number of other circuits have 95

determined that the defense is an affirmative one.”). 96

Punitive damages are subject to caps in ADA actions. See 42 U.S.C. § 1981a (b)(3). But 97

42 U.S.C. §1981a(c)(2) provides that the court shall not inform the jury of the statutory limitations 98

on recovery of punitive damages. 99

The Supreme Court has imposed some due process limits on both the size of punitive 100

damages awards and the process by which those awards are determined and reviewed. In 101

performing the substantive due process review of the size of punitive awards, a court must consider 102

three factors: “the degree of reprehensibility of ” the defendant’s conduct; “the disparity between 103

the harm or potential harm suffered by ” the plaintiff and the punitive award; and the difference 104

between the punitive award “and the civil penalties authorized or imposed in comparable cases. ” 105

BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996). 106

For a complete discussion of the applicability of the Gore factors to a jury instruction on 107

punitive damages, see the Comment to Instruction 4.8.3. 108

Damages in ADA Retaliation Cases 109

At least one court in the Third Circuit has held that a plaintiff ’s recovery for retaliation 110

under the ADA is limited to equitable relief. See Sabbrese v. Lowe’s Home Centers, Inc., 320 F. 111

Supp. 2d 311, 331 (W .D. Pa. 2004). The Sabbrese court relied on the Seventh Circuit ’s analysis 112

in Kramer v. Banc of America Securities LLC, 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit 113