Meyer, J.
`Dissenting, Gilbert, J.
`
`Filed: July 29, 2004
`Office of Appellate Courts
`
`STATE OF MINNESOTA
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`IN SUPREME COURT
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`C3-02-1605
`
`
`
`Court of Appeals
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`
`
`Patricia Ludowese Ray,
`
`
`Respondent,
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`
`
`
`vs.
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`Miller Meester Advertising, Inc.,
`
`
`Appellant,
`
`
`Robert V. Miller,
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`
`
`Defendant.
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`S Y L L A B U S
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`
`
`
`
`
`
`Front pay is a component of actual damages subject to multiplication under Minn.
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`Stat. § 363.071, subd. 2 (2002).
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`Affirmed.
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`Heard, considered, and decided by the court en banc.
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`
`
`1
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`

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`MEYER, Justice.
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`O P I N I O N
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`
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`In this appeal, we are asked to decide whether front pay is subject to multiplication
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`under Minn. Stat. § 363.071, subd. 2 (2002).1
`
`
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`Appellant Miller Meester Advertising, Inc. (MMA), a Minnesota-based
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`advertising agency, hired respondent Patricia Ludowese Ray in June of 1996 in the
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`position of Vice President/Group Creative Director. At the time she was hired, Ray had
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`21 years of experience in the advertising industry. In June 1998, after two years of
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`employment and without a negative performance evaluation, Ray was promoted to the
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`position of Creative Director, the first woman to hold that position. Two months later,
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`Ray was terminated by Robert V. Miller, MMA’s owner. She was terminated without
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`warning and with no prior criticism of her job performance. Ray then sued MMA and
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`Miller for unlawful gender discrimination under the Minnesota Human Rights Act
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`(MHRA), Minn. Stat. ch. 363 (2002), and Title VII of the federal Civil Rights Act, 42
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`U.S.C. § 2000e-5(g) (2004).
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`
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`Ray’s Title VII claim was tried to a jury and the MHRA claim was tried to the
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`court. The presiding judge used the jury in an advisory capacity with regard to claims of
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`discrimination under the MHRA. By special verdict, the jury found that Ray was
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`terminated on the basis of her gender and awarded past wage loss in the amount of
`
`
`1
`Section 363.071, subdivision 2, has been renumbered and now may be found at
`Minn. Stat. § 363A.29, subd. 4 (Supp. 2003).
`
`
`
`2
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`

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`$73,866, past compensatory damages in the amount of $95,000, future compensatory
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`damages in the amount of $42,250, and punitive damages in the amount of $500,000.
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`On June 7, 2001, the district court issued its findings of facts and conclusions of
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`law with respect to the MHRA claims. The court concluded that MMA terminated Ray
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`in violation of the MHRA. The court ordered a total of over $1 million in damages on
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`both the Title VII and MHRA claims. The MHRA damage award included $123,004 for
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`three years of front pay which, under Minn. Stat. § 363.071, subd. 2 (2002), the court
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`doubled to $246,008.
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`
`
`
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`MMA appealed, and among its claims of error it asserted that doubling the front
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`pay award was not permitted under the MHRA.2 The court of appeals reversed the entire
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`Title VII award due to evidentiary errors. Ray v. Miller Meester Adver., Inc., 664
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`N.W.2d 355, 372 (Minn. App. 2003). The court of appeals also reversed the district
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`court’s trebling of emotional distress damages under the MHRA. Ray, 664 N.W.2d at
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`370. The court of appeals found no other errors in the district court’s evidentiary rulings
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`or determination of liability and damages under the MHRA. Ray, 664 N.W.2d at 372.
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`We granted MMA’s petition for review on the issue of whether front pay is subject to
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`multiplication under the MHRA.
`
`
`2
`MMA asserted that the district court abused its discretion by admitting testimony
`that was either an improper lay opinion, irrelevant, unduly prejudicial, or an improper
`expert opinion. Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 362 (Minn. App.
`2003). MMA also argued that the admission of inadmissible evidence resulted in
`prejudicial error in both the Title VII jury trial and in the MHRA bench trial. Ray, 664
`N.W.2d at 362.
`
`
`
`3
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`

`
`We begin by briefly examining the nature of front pay. “In employment contracts,
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`the general rule is that ‘[t]he measure of damages for breach of an employment contract
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`is the compensation which an employee who has been wrongfully discharged would have
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`received had the contract been carried out according to its terms.’” Feges v. Perkins
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`Rests., Inc., 483 N.W.2d 701, 709 (Minn. 1992) (quoting Zeller v. Prior Lake Pub. Sch.,
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`259 Minn. 487, 493, 108 N.W.2d 602, 606 (1961)). However, a court may award future
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`damages, or front pay, for lost compensation that occurs after the time of trial. Id. at 710.
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`The potentially speculative nature of front pay awards is limited by the plaintiff’s duty to
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`mitigate damages, the evidence presented concerning the extent of the potential damages,
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`and the principle that front pay awards are limited to the damages caused by the breach of
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`contract. Id.
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`Under the MHRA, when a court finds that an employer engaged in an unfair
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`discriminatory practice, the court shall order the employer to pay “compensatory
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`damages in an amount up to three times the actual damages sustained.” Minn. Stat.
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`§ 363.071, subd. 2 (2000). The question in this case is whether front pay is a component
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`of “actual damages” and, therefore, subject to multiplication under the MHRA. This is
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`an issue of statutory construction that we review de novo. State v. Wukawitz, 662
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`N.W.2d 517, 525 (Minn. 2003).
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`The legislature did not provide a definition of actual damages in the MHRA.
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`However, we have already construed the meaning of this phrase in Phelps v.
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`Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 275 (Minn. 1995). In Phelps we
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`cited with approval the definition of actual damages found in Black’s Law Dictionary.
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`
`
`4
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`

`
`Phelps, 537 N.W.2d at 275. Black’s Law Dictionary defines actual damages as “[a]n
`
`amount awarded to a complainant to compensate for a proven injury or loss; damages that
`
`repay actual losses. – Also termed compensatory damages.” Black’s Law Dictionary 394
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`(7th ed. 1999). We concluded in Phelps that “[i]n general, compensatory damages
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`‘consist of both general and special damages. General damages are the natural, necessary
`
`and usual result of the wrongful act or occurrence in question. Special damages are those
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`which are the natural but not the necessary and inevitable result of the wrongful act.’”3
`
`Phelps, 537 N.W.2d at 275 n.2 (quoting Black’s Law Dictionary 390 (6th ed. 1990)). We
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`further construed the term “actual damages” as having the meaning ascribed by common
`
`law.4 See id. at 275.
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`The common law principle that actual or compensatory damages may include
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`future losses is well established in Minnesota. See, e.g., Pietrzak v. Eggen, 295 N.W.2d
`
`
`3
`Likewise, the Restatement (Second) of Torts defines compensatory damages as
`“the damages awarded to a person as compensation, indemnity or restitution for harm
`sustained by him.” Restatement (Second) of Torts § 903 (1979). Section 910 of the
`Restatement further states that the victim of a tort “is entitled to recover damages from
`the [tortfeasor] for all harm, past, present and prospective, legally caused by the tort.”
`(Emphasis added.) The Restatement also notes that both general and special damages are
`forms of compensatory damages. Id. § 904. The Restatement, like Phelps, defines
`general damages as “compensatory damages for a harm so frequently resulting from the
`tort that is the basis of the action that the existence of the damages is normally to be
`anticipated and hence need not be alleged in order to be proved.” Id. (1). The
`Restatement defines special damages as “compensatory damages for a harm other than
`one for which general damages are given.” Id. (2).
`
`The dissent asserts that we improperly rely on the Restatement of Torts and prior
`
`tort cases to define compensatory damages. To the contrary, we are merely relying on
`our precedent in Phelps, where we looked to the common law definition of compensatory
`damages as defined by Black’s. See Phelps, 537 N.W.2d at 275.
`
` 4
`
`
`
`5
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`

`
`504, 507-08 (Minn. 1980) (holding that the jury should have been instructed on future
`
`medical expenses as a component of special damages); Hake v. Soo Line Ry. Co., 258
`
`N.W.2d 576, 582 (Minn. 1977) (providing that the jury could consider a special damage
`
`award that consisted of future medical expenses and future lost wages). Additionally, a
`
`tort victim may recover future damages caused by the tortfeasor even though it may be
`
`difficult to determine the exact amount of those damages. See Pietrzak, 295 N.W.2d at
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`507.
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`We conclude that a front pay award is a form of actual damages because it is an
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`award that is the “natural, necessary and usual result” of an employer’s discriminatory
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`behavior. As we have clearly stated, front pay awards are limited to the damages caused
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`by the employer’s breach. Feges, 483 N.W.2d at 710. Therefore, front pay awards are
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`subject to multiplication under Minn. Stat. § 363.071, subd. 2, and the district court did
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`not err when it doubled the award.5
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`MMA argues that front pay cannot be a component of “actual damages” because
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`the MHRA provides at Minn. Stat. § 363.071, subd. 2:
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`In addition to the aforesaid remedies, in a case involving discrimination in
`
`
`5
`Our precedent and the legislative history of the MHRA do not support the
`dissent’s contention that front pay awards should not be subjected to multiplication
`because multiplication will overcompensate the victim and “threaten the existence of
`certain businesses.” In Phelps, we noted that “the legislature defined compensatory
`damages to be an amount up to three times the actual damages proven.” 537 N.W.2d at
`275. Such a multiplier can undoubtedly impact employers. Nonetheless, it is the
`legislature, not the courts, that should balance the policy considerations raised and
`inherent in the MHRA.
`
`
`
`
`6
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`

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`(a) employment, the [court] may order the hiring, reinstatement or
`upgrading of an aggrieved party, who has suffered discrimination, with or
`without back pay, * * * or any other relief the [court] deems just and
`equitable.
`
`
`MMA reasons that the provision of reinstatement as a remedy for employment
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`discrimination in addition to actual damages necessarily means that front pay cannot be
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`awarded as a part of actual damages. We rejected an almost identical argument
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`pertaining to back pay in Phelps. In Phelps, the employer argued that back pay was not
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`an element of actual damages subject to multiplication under Minn. Stat. § 363.071, subd.
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`2, because back pay could be awarded attendant to an upgrade in hiring or reinstatement
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`of the party who suffered discrimination. 537 N.W.2d at 277-78. We stated that “[w]e
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`do not believe the statute precludes the inclusion of back pay as an element of damages
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`that is subject to multiplication” because Minn. Stat. § 363.071, subd. 2, gives a court the
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`discretion to award back pay either as actual damages or as damages “attendant to the
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`hiring, reinstatement or upgrading of an aggrieved party.” Id. at 278. Similarly, the
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`statute permits a court to award front pay as a component of actual damages and,
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`additionally, gives the court the authority to order reinstatement of the aggrieved party.
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`Front pay is not a substitute for the remedy of reinstatement as MMA contends; instead, it
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`is a distinct measure of damages that may be awarded in combination with reinstatement.
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`MMA also urges this court to adopt the approach federal courts have taken in
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`interpreting front pay awards under Title VII and hold that front pay is a substitute for the
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`equitable remedy of reinstatement and, therefore, does not constitute actual damages
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`subject to multiplication under the MHRA. In construing the MHRA, we have at times
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`
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`7
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`

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`“relied on principles developed under Title VII” but we are not bound by interpretations
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`of Title VII. Turner v. IDS Fin. Servs. Inc., 471 N.W.2d 105, 107 (Minn. 1991); see also
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`Carlson v. Indep. Sch. Dist. No. 623, 392 N.W.2d 216, 220 (Minn. 1986).
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`There are significant differences between the MHRA and Title VII. Carlson, 392
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`N.W.2d at 221. Portions of the MHRA, including the sex discrimination prohibition,
`
`appear
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`to be patterned after
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`the Uniform Law Commissioners’ Model Anti-
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`Discrimination Act, not Title VII. Carlson, 392 N.W.2d at 220; see also Minn. Mining &
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`Mfg. Co. v. State, 289 N.W.2d 396, 399 (Minn. 1979). Because “[t]he scope of
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`discrimination liability, and its consequences, is more onerous under our state laws than
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`under Title VII,” we are not bound to follow seemingly analogous federal court
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`decisions. Carlson, 392 N.W.2d at 221. For example, we rejected the federal standard
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`for proof in a same-sex harassment claim because “the MHRA is not similar to Title VII
`
`in its treatment of sexual harassment.” Cummings v. Koehnen, 568 N.W.2d 418, 422 n.5
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`(Minn. 1997) (emphasis added).
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`The question is whether the MHRA is sufficiently similar to Title VII in its
`
`treatment of damages such that we should adopt Title VII principles with respect to front
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`pay. The remedies provided under Title VII permit a court to “order such affirmative
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`action as may be appropriate, which may include, but is not limited to reinstatement or
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`hiring of employees, with or without back pay * * *, or any other equitable relief as the
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`court deems appropriate.” 42 U.S.C. § 2000e-5(g) (2004). Further, a party may recover
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`“compensatory and punitive damages as allowed in subsection (b) of this section, in
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`addition to any relief authorized by [42 U.S.C. § 2000e-5(g)].” 42 U.S.C. § 1981a(a)
`
`
`
`8
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`

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`(2004) (emphasis added). The United States Supreme Court has held that front pay is
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`included within equitable remedies and is intended under Title VII as an alternative
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`remedy to reinstatement. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853-
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`54 (2001). In contrast, the plain language of the MHRA not only allows a court to
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`multiply a compensatory damage award, it also gives a court the power to “order the
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`hiring, reinstatement or upgrading of an aggrieved party, who has suffered
`
`discrimination, with or without back pay * * * or any other relief the [court] deems just
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`and equitable.” Minn. Stat. § 363.071, subd. 2(a). As discussed above, our interpretation
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`of the damages language of the MHRA is based on the common law of damages, and
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`does not characterize its monetary remedies as equitable remedies or substitutes for
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`equitable relief. Because Congress includes an award of back pay within the equitable
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`remedies available under Title VII, we conclude that the scope of damages under the
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`MHRA is not similar to those provided under Title VII and we decline to adopt Title VII
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`damages principles for the MHRA.6
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`Affirmed.
`
`
`6
`The Eighth Circuit Court of Appeals held that front pay awards are not subject to
`multiplication under the MHRA. Mathieu v. Gopher News Co., 273 F.3d 769, 781-82
`(8th Cir. 2001). We decline to follow the Eighth Circuit’s interpretation of Minnesota
`law because its analysis is almost wholly based on federal case law under Title VII.
`
`
`
`9
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`

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`D I S S E N T
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`GILBERT, Justice (dissenting).
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`
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`I respectfully dissent. I disagree with the majority’s classification of front pay as a
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`component of “actual damages” that is eligible for multiplication under the Minnesota
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`Human Rights Act. The stacking of the federal and state relief and then multiplication of
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`large portions of the relief, without providing a rationale for that multiplication, plus
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`punitive damages, leads to a result that I do not believe was contemplated by our
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`legislature.
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`
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`The multiplying provision in the MHRA was created to be a compensatory rather
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`than punitive measure. As we have noted, “although the trebling function in this statute
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`has a deterrent effect, it is primarily a compensatory measure which is made all the more
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`clear by the statute’s explicit labeling of the treble damages as ‘compensatory.’” Phelps
`
`v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 277 (Minn. 1995). In evaluating
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`the MHRA, we have previously looked toward Black’s Law Dictionary to define
`
`compensatory damages as those damages for which a person has “actual losses.” Id. at
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`275 (quoting Black’s Law Dictionary 390 (6th ed. 1990)). In the absence of an explicit
`
`definition within the statute, compensatory damages should be approached as being
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`“synonymous with actual damages.” Phelps, 537 N.W.2d at 275.
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`
`
`D-1
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`

`
`
`
`In an attempt to define “compensatory damages,” the majority relies on personal
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`injury tort cases and the Restatement of Torts.1 Indeed, I find it curious that the majority
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`would do so, being that the present case involves employment discrimination, which is
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`not a tort. We have previously distinguished between tort claims and claims under the
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`MHRA, holding we do not allow “double recovery” for concurrent MHRA claims and
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`tort claims. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990)
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`(holding that a MHRA sexual harassment claim does not address the conduct addressed
`
`by the common law tort of battery). In addition, federal and state courts around the
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`country, in various contexts, have repeatedly declined to classify employment
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`discrimination as a tort. See Boyd v. O’Neill, 273 F. Supp. 2d 92, 97 (D.D.C. 2003)
`
`(noting that tort claims and employment discrimination claims “seek[] to remedy a
`
`different wrong. [The federal discrimination statute] exists to redress employment
`
`discrimination, while common law tort theories aim to amend personal injuries. It is not
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`‘double recovery’ to be compensated twice based on one set of conduct if that conduct
`
`resulted in two distinct types of harm.”); Keating v. Gaffney, 182 F. Supp. 2d 278,
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`291 (E.D.N.Y. 2001) (“Employment discrimination is not a tort.”); Jancey v. Sch. Comm.
`
`
`1
`In a footnote, the majority asserts that it is “merely relying on our precedent in
`Phelps, where we looked to the common law definition of compensatory damages as
`defined by Black’s.” Reading through the majority opinion, it is clear that the majority
`goes much further. As I explain infra, not only does the majority ignore relevant portions
`of the Black’s Law Dictionary, but it also heavily relies on tort cases and the Restatement
`of Torts to define “compensatory damages” and front pay in an employment context.
`This approach signals a departure from our opinion in Phelps, where we did not rely on
`tort cases to define terms in an employment-related statute.
`
`
`
`
`D-2
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`

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`of Everett, 658 N.E.2d 162, 173 (Mass. 1995) (“acts of discrimination—whether
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`intentional or unintentional—do not thereby become torts.”); McMillan v. Mass. Society
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`for Prevention of Cruelty to Animals, 168 F.R.D. 94, 96-97 (D. Mass 1995) (“in tort cases
`
`for personal injuries or property damage, compensation for future lost wages will be
`
`treated conceptually as an already incurred loss of earning capacity; while, in
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`discrimination cases * * * expected future income reductions will be treated conceptually
`
`as losses not yet incurred (i.e., “front pay damages”)) (quoting Kuppens v. Davies,
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`649 N.E.2d 164, 165 (Mass. 1995)).
`
`
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`If it is not enough that the majority relies on the Restatement of Torts to define
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`terms within a non-tort MHRA question, the majority also misinterprets the Restatement
`
`of Torts itself. The majority quotes the Restatement of Torts that defines compensatory
`
`damages as damages awarded to a person for harm “sustained.” Restatement (Second) of
`
`Torts § 903 (1979). It is important to note that the Restatement utilizes the past tense of
`
`the word “sustain,” and does not provide any sort of prospective or future harm reference
`
`(i.e., “will sustain”). Next, the majority cites to Section 910 of the Restatement, which
`
`states that a person injured by a tort is entitled to recover “damages * * * for all harm,
`
`past, present and prospective, legally caused by the tort.” It is not so obvious, however,
`
`that Section 910 is directly tied to Section 903 as the majority asserts. Section 910
`
`generally provides for “damages” but does not express the type of damages that should be
`
`awarded. In addition, nowhere in the comments to Section 910 does it mention the terms
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`“compensatory damages” or “actual damages.” I am sure that the majority recognizes
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`that a variety of types of recoverable “damages” exist in the legal world that would not be
`
`
`
`D-3
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`

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`classified as “actual damages.” Of course, as previously noted and it should be clear, the
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`Restatement of Torts is limited in scope to torts, which does not include employment
`
`discrimination.
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`
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`The majority also cites to several of our past tort-related cases to attempt to link
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`employment “front pay” with future medical “special damages.”2 The majority ties these
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`personal injury cases to the present matter by arguing that the “special damages” we
`
`allowed in those cases are the same as “special damages” that we tied to “compensatory
`
`damages” in Phelps. Phelps, 537 N.W.2d at 275. The majority then makes a second step
`
`to argue that our definition of future medical expenses as “special damages” in prior tort-
`
`related injury cases can be utilized to define “front pay” as an “actual damage” in the
`
`current employment discrimination matter. The connection that the majority makes
`
`between these medical tort cases and the present case is tenuous at best. Future damages
`
`in employment discrimination are calculated in a different manner than future expenses in
`
`tort cases. Tort cases offer a different degree of certainty when calculating future
`
`damages. See Pietrzak, 295 N.W.2d at 508 (“future pain and suffering as well as future
`
`diminished earning capacity are so inextricably tied to future surgery.”).
`
`
`2
`For example, in Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980), we
`allowed a jury to calculate future damages as “special damages” that were the direct
`result of a tort-related foot surgery. We stressed that we would allow such a calculation
`because “future pain and suffering as well as future diminished earning capacity are so
`inextricably tied to future surgery and its attendant expenses.” Id. at 508. Similarly, in
`Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 583 (Minn. 1977), we allowed a jury to take
`into consideration future damages as “special damages” in a personal injury case, noting
`that “damages for personal injury, as in the instant case * * * [are not] fixed.”
`
`
`
`
`D-4
`
`

`
`
`
`Although not cited by the majority, several other relevant authorities are helpful in
`
`deciding the “front pay” issue presented in this case. See Sprint Spectrum LP v. Comm’r
`
`of Revenue, 676 N.W.2d 656, 662 (Minn. 2004) (noting that we are reluctant to be
`
`restricted by any one source for the definition of certain terms). As the majority
`
`recognizes, in Phelps, we relied on Black’s Law Dictionary to define “compensatory
`
`damages.” Phelps, 537 N.W.2d at 275. Black’s Law Dictionary defines “actual
`
`damages” as “[a]n amount awarded to a complainant to compensate for a proven injury or
`
`loss; damages that repay actual losses.—Also termed compensatory damages.” Black’s
`
`394 (7th ed. 1999) (emphasis added). Looking further into Black’s, which the majority
`
`declined to do, separately, and in contrast, Black’s defines “prospective damages” as
`
`“[f]uture damages that, based on the facts pleaded and proved by the plaintiff, can
`
`reasonably be expected to occur.” Black’s at 396. Although Black’s does not explicitly
`
`define front pay, it defines a virtually equivalent term “front wages” as “[p]rospective
`
`compensation paid to a victim of job discrimination until the denied position becomes
`
`available.” Black’s at 1573. After closely approaching the definitions of these terms, it
`
`becomes clear that front pay is more closely related to “prospective damages” rather than
`
`“compensatory” or “actual damages.”
`
`
`
`We have also acknowledged the prospective nature of front pay awards. In Feges
`
`v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 (Minn. 1992), we recognized the
`
`inherent speculative nature of front pay awards, noting that the “greatest danger of post-
`
`trial or front-pay damages in employment cases is their uncertainty.” To alleviate the
`
`danger of uncertainty, we advised that three steps must be taken to prevent the awards
`
`
`
`D-5
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`

`
`from being “unduly speculative”: First, based on the plaintiff’s duty to mitigate front pay
`
`damages should be limited to “those cases where the plaintiff has been unable to find
`
`comparable employment after termination.” Id. Second, front pay awards must be based
`
`on objective evidence regarding “the feasibility of reinstatement, the employee’s
`
`prospects for future employment, the certainty of what the employee’s income would
`
`have been absent the breach, and the length of time for which front-pay is sought.” Id.
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`Third, front pay must be limited to “those losses caused by the breach.” Id. Front pay is
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`not a preferred remedy, but rather a last resort when all avenues for reinstatement or
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`subsequent employment have been exhausted.
`
`
`
`We have not been alone in recognizing the speculative and prospective nature of
`
`front pay awards. The Supreme Court has analyzed the role of front pay in compensating
`
`victims of employment discrimination under the Civil Rights Act, finding that front pay
`
`is not an element of compensatory damages. Pollard v. E.I. du Pont de Nemours & Co.,
`
`532 U.S. 843, 852 (2001). It defined front pay as “money awarded for lost compensation
`
`during the period between judgment and reinstatement or in lieu of reinstatement.” Id. at
`
`846. In a situation where reinstatement would cause another employee to be displaced,
`
`“courts have ordered reinstatement upon the opining of such a position and have ordered
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`front pay to be paid until reinstatement occurs.” Id. Where reinstatement is not viable
`
`because of continuing workplace hostilities or psychological
`
`trauma from
`
`the
`
`discrimination, front pay serves “as a substitute for reinstatement” and not a form of
`
`compensatory damages. Id.
`
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`D-6
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`

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`The Supreme Court’s classification of front pay as not being a form of
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`compensatory damages has been utilized towards the MHRA. In a directly analogous
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`case to the present matter, the Eighth Circuit Court of Appeals analyzed the role of front
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`pay in the MHRA, finding that front pay does not constitute compensatory damages
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`under that statute. Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir. 2001). In
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`Mathieu, the Eighth Circuit found that front pay is not subject to multiplication under the
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`MHRA. It first noted that “front pay is the alternative to the preferred equitable remedy
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`of reinstatement.” Id. (citations omitted). Based on this assumption it stated,
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`It should be obvious that the multiplier under the Minnesota statutes would
`not be awarded on top of reinstatement; there is no monetary award to be
`multiplied when reinstatement is determined proper. This counsels against
`multiplying its equitable alternative.
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`
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`An award of front pay also is inherently speculative in length of time
`and when considering possible mitigation by reason of other employment.
`It is based on probabilities rather than actualities. This easily distinguishes
`it from damages which have been actually incurred. Indeed, the mere fact
`that a front pay damage award is discretionary makes it distinguishable
`from the award of back pay, which can be readily determined within a
`degree of reasonable certainty.
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`Id. Unlike the majority, the Eighth Circuit in Mathieu appears to utilize a realistic
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`interpretation of the multiplier provision. Unfortunately, the majority glossed over
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`Mathieu in a footnote by quickly distinguishing it as being “almost wholly based on
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`federal case law under Title VII” rather than the Minnesota MHRA. While the majority
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`is correct in asserting differences between the federal Title VII and Minnesota MHRA,
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`these differences should not affect the more general definition of front pay—i.e., as a
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`prospective remedy utilized as an equitable substitution for reinstatement.
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`D-7
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`With that definition in mind, it seems unreasonable to multiply a front pay award
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`as it would be impossible to multiply a reinstatement order. For example, had the district
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`court determined that reinstatement was proper in Ray’s scenario, it would not have been
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`able to “multiply” the reinstatement. She would have simply been able to retain her job.
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`As reinstatement would have been extremely difficult in Ray’s scenario, front pay was
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`awarded as an equitable substitution. It seems illogical to subject this remedy to
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`multiplication merely because it happens to be a monetary figure rather than a
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`reinstatement order. As the Eighth Circuit has pointed out, “there is no monetary award
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`to be multiplied when reinstatement is determined proper. This counsels against
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`multiplying its equitable alternative.” Mathieu, 273 F.3d at 782.
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`Multiplying an award of front pay would overcompensate a victim by allowing a
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`greater reward than an equitable substitution for reinstatement. In addition, it would
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`create an unwarranted incentive for a victim to not seek reinstatement or subsequent
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`employment, because the victim is being compensated at a greater, multiplied rate than
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`the assessed value of the victim’s future work. See Snow v. Pillsbury, 650 F. Supp 299,
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`300 (D. Minn. 1986) (denying nine-year front-pay award on grounds it was too
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`speculative that plaintiff would have voluntarily remained employed in same position
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`until retirement); Riethmiller v. Blue Cross & Blue Shield of Mich., 390 N.W.2d 227, 233
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`D-8
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`

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`(Mich. App. 1986) (noting “[t]he recognition that front pay damages are available creates
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`the possibility of substantial monetary liability for some employers.”).3
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`The majority’s classification of front pay will contribute to disturbingly large
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`damage awards that could threaten to bankrupt businesses. We have previously noted
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`that the damages provisions of the MHRA are designed to restore a victim of
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`discrimination “as near as possible, to the same position she would have attained had
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`there been no discrimination.” Anderson v. Hunter, Keith, Marshall & Co., Inc.,
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`417 N.W.2d 619, 627 (Minn. 1988). In the present matter, Ray’s base damage claim of
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`$199,332 for lost back and front pay has been expanded by a multiple of five when
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`emotional distress and all the add-ons are taken into consideration. The total award under
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`the dual relief provisions amounted to over $1 million before the court of appeals
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`reversed the Title VII portion of the verdict and the district court’s doubling of emotional
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`distress damages.4 After the court of appeals reversed the Title VII portion and
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`3
`While I acknowledge that a district court has wide discretion to decide whether
`compensatory damages should be multiplied, I find it troubling that little guidance or
`uniformity exists in the multiplying process. In the present matter, the district court
`found “that the awards of frontpay and backpay to Ray should be doubled.” The district
`court did not explain why it chose to double the award. For other options, the district
`court could have declined t