3d Cir. Model Jury Instr. (Civil) 9.4.4

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Last updated March 2026

VII actions: “The powers, remedies and procedures set forth in . . . [42 U.S.C. § 2000e-5, the Title 35

VII remedies provision] shall be the powers, remedies and procedures this title provides to . . . any 36

person alleging discrimination on the basis of disability in violation of any provision of this Act . 37

. . concerning employment.” Accordingly, this instruction on front pay is substantively identical 38

to that provided for Title VII actions. See Instruction 5.4.4. 39

There is no right to jury trial under Title VII (or by extension the ADA) for a claim for 40

front pay. See Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001) (holding that front 41

pay under Title VII is not an element of compensatory damages). See also Marinelli v. City of Erie, 42

25 F. Supp. 2d 674, 675 (W .D. Pa. 1998) (“The ADA provides for all remedies available under 43

Title VII, which includes backpay and front pay or reinstatement. [Front pay relief] is equitable 44

in nature, and thus within the sound discretion of the trial court. ”), judgment vacated on other 45

grounds, 216 F.3d 354 (3d Cir. 2000). 46

An instruction on front pay is nonetheless included because the parties or the court may 47

wish to empanel an advisory jury–especially given the fact that in most cases the plaintiff will be 48

seeking compensatory damages and the jury will be sitting anyway. See Fed. R. Civ. P. 39(c). 49

Alternatively, the parties may agree to a jury determination on front pay, in which case this 50

instruction would also be appropriate. Instruction 9.4.1, on compensatory damages, instructs the 51

jury in such cases to provide separate awards for compensatory damages, back pay, and front pay. 52

Front pay is considered a remedy that substitutes for reinstatement, and is awarded when 53

reinstatement is not viable under the circumstances. See Berndt v. Kaiser Aluminum & Chemical 54

Sales, Inc ., 789 F.2d 253, 260 -61 (3d Cir. 1986) (noting that “when circumstances prevent 55

reinstatement, front pay may be an alternate remedy”). 56

In Monessen S.R. Co. v. Morgan, 486 U.S. 330, 339 (1988), the Court held that “damages 57

awarded in suits governed by federal law should be reduced to present value. ” (citing St. Louis 58

Southwestern R. Co. v. Dickerson, 470 U.S. 409, 412 (1985)). The “self-evident” reason is that “a 59

given sum of money in hand is worth more than the like sum of money payable in the future.” The 60

Court concluded that a “failure to instruct the jury that present value is the proper measure of a 61

damages award is error.” Id. Accordingly, the instruction requires the jury to reduce the award of 62

front pay to present value. It should be noted that where damages are determined under state law, 63

a present value instruction may not be required under the law of certain states. See, e.g. , 64

Kaczkowski v. Bolubasz , 491 Pa. 561, 421 A.2d 1027 (Pa. 1980) (advocating the “total offset” 65

method, under which no reduction is necessary to determine present value, as the value of future 66

income streams is likely to be offset by inflation). 67