Back Pay, Front Pay and Reinstatement in New York Employment Cases

Back pay is the pay a person lost because of an unlawful firing, demotion or refusal to hire; front pay covers pay lost going forward; reinstatement is an order putting the person back in the job. Federal law, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) each list these remedies, in different words and with different limits.⁠^[1][4][5]

This page covers what each law says about lost pay and getting a job back, the federal two-year limit, the duty to look for other work, and interest. For the full list of remedies, see what a New York employment case can recover.

What does each law say about lost pay and reinstatement?

The wording differs from statute to statute, so the table quotes or closely tracks each one.

Law	Who orders it	What the text provides
Federal: Title VII	Court	If the court finds intentional discrimination, it may order "reinstatement or hiring of employees, with or without back pay," or any other equitable relief it deems appropriate.⁠[1]
Federal: ADA (employment)	Court	The ADA's employment title uses the powers, remedies and procedures of Title VII.⁠[6]
Federal: FMLA	Court	The employer owes the wages, salary, employment benefits or other compensation denied or lost because of the violation, plus equitable relief including employment, reinstatement and promotion.⁠[7]
New York State: NYSHRL, at the Division of Human Rights	Commissioner, after a hearing	An order may require affirmative action "including (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay."⁠[4]
New York State: NYSHRL, in court	Court	A cause of action "for damages" and "such other remedies as may be appropriate."⁠[8]
New York City: NYCHRL, at the NYC Commission on Human Rights	Commission, after a hearing	Hiring, reinstatement or upgrading of employees; "the award of back pay and front pay."⁠[5]
New York City: NYCHRL, in court	Court	A cause of action for damages, including punitive damages, and for injunctive relief and other appropriate remedies.⁠[9]
New York State: Labor Law § 740 (whistleblower retaliation)	Court	Reinstatement to the same or an equivalent position, "or front pay in lieu thereof"; full fringe benefits and seniority rights; compensation for lost wages, benefits and other remuneration.⁠[10]
New York State: Labor Law § 215 (retaliation for wage complaints)	Court	Rehiring or reinstatement to the former position with restoration of seniority, "or an award of front pay in lieu of reinstatement," and an award of lost compensation.⁠[11]

Notice the recurring word "may." Under Title VII and under the NYSHRL's Division procedure, reinstatement can be ordered "with or without back pay," so neither remedy follows automatically from a finding of discrimination.⁠^[1][4]

How far back does back pay go?

Federal law sets an outer limit. Under Title VII, back pay liability cannot accrue from a date more than two years before the charge was filed with the EEOC.⁠^[1] The same statutory sentence applies to ADA employment claims, because the ADA borrows Title VII's remedies.⁠^[1][6]

What this page does not cover. A look-back limit under the NYSHRL or the NYCHRL comparable to the federal two-year limit; a separate State or City rule on looking for other work; a formula for choosing between reinstatement and front pay, or for how long a front pay period runs; and an interest rate for a Human Rights Law back pay award.⁠^{[1][12][13][14]}

That two-year sentence is part of the federal statute.⁠^[1] Filing dates still matter under every law; the deadlines guide and the page on filing an EEOC charge cover them.

Do you have to look for another job?

Under federal Title VII, back pay is reduced by what the person earned, or could have earned, in the meantime. The statute says that interim earnings, "or amounts earnable with reasonable diligence," operate to reduce the back pay otherwise allowable.⁠^[1] Lawyers call this the duty to mitigate.

The Supreme Court described the limits of that duty in Ford Motor Co. v. EEOC (1982). An unemployed or underemployed claimant "need not go into another line of work, accept a demotion, or take a demeaning position," but forfeits the right to back pay by refusing a job substantially equivalent to the one denied.⁠^[12] The Court also held that, absent special circumstances, rejecting the employer's unconditional offer of the job ends the accrual of potential back pay liability.⁠^[12]

Both points are federal Title VII authority, not statements about the NYSHRL or the NYCHRL.⁠^[1][12]

As a practical matter, a simple log of the job search records the facts this rule turns on: where the person applied, when, for what position, and what happened. Offer letters, rejection emails and pay stubs from any interim work show the same things in documents. The page on keeping records has more on organizing them.

What is front pay, and when does it replace reinstatement?

The Supreme Court defined the term in Pollard v. E. I. du Pont de Nemours & Co. (2001): front pay "is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement."⁠^[2] In other words, it either bridges the gap until the person is back at work or stands in for a return that will not happen.

Several New York statutes treat front pay as the alternative to reinstatement in so many words. Labor Law § 740 provides for reinstatement "or front pay in lieu thereof," and Labor Law § 215 provides for reinstatement "or an award of front pay in lieu of reinstatement."⁠^[10][11] The City law lists "back pay and front pay" among the remedies the NYC Commission on Human Rights may order.⁠^[5]

None of the provisions quoted on this page sets a formula for choosing between reinstatement and front pay, or for how long a front pay period runs.⁠^[10][11][5]

Do the federal damages caps limit lost pay?

No. Title VII and the ADA cap the combined total of certain compensatory damages and punitive damages at $50,000 to $300,000 per person, depending on the employer's size.⁠^[15][6][16] The statute says compensatory damages "shall not include backpay, interest on backpay, or any other type of relief authorized under" Title VII's remedies section.⁠^[17] In Pollard, the Supreme Court held that front pay is not an element of compensatory damages and that the cap does not apply to it.⁠^[3]

The federal damages caps guide explains the tiers. The NYSHRL states no dollar limit on compensatory damages, and the NYCHRL's court-action section sets no dollar cap on compensatory or punitive damages.⁠^[18][9]

When can lost pay or reinstatement be unavailable?

Federal law has a specific limit for "mixed-motive" cases. Where an employee proves that a protected characteristic was a motivating factor but the employer proves it would have taken the same action anyway, a Title VII court may grant declaratory relief, injunctive relief and attorney's fees, but may not award damages or order reinstatement, hiring, promotion or payment.⁠^[19]

How discrimination is proved in the first place is covered in the guide to proving discrimination. A person who resigned rather than being fired should also read about constructive discharge, because lost pay after a resignation raises that question first.

Is interest added?

Interest can be part of the award under several of these laws:

• New York State, Division of Human Rights. A Division order after a hearing "may include a directive for the payment of interest on any money awarded."⁠^[13] The Division itself lists "back pay with interest and benefits" among the remedies a final order can include.⁠^[20]
• New York State, Court of Appeals. In Matter of Aurecchione v. New York State Division of Human Rights (2002), the court held that interest from the date of discrimination on a back pay award serves the Human Rights Law's purpose of making victims whole, and that denying it on the facts of that case was an abuse of discretion.⁠^[14]
• Federal, Title VII. The statute refers to "interest on backpay" and places it outside the capped compensatory damages.⁠^[17]
• Federal, FMLA. The employer owes interest on the lost wages or other compensation, "calculated at the prevailing rate."⁠^[7]

Neither the State regulation nor the Aurecchione passage quoted above names an interest rate.⁠^[13][14]

How is lost pay taxed?

The IRS treats the lost-wage part of an employment settlement (severance pay, back pay, front pay) as taxable wages, subject to Social Security and Medicare taxes and to employment tax withholding by the payer.⁠^[21] The page on whether settlements are taxable covers the other components.

What people commonly get wrong

• "The federal cap limits my lost wages." The cap applies to certain compensatory damages and punitive damages; back pay and front pay are outside it.⁠^[17][3]
• "If I win, I get my job back." The statutes say a court or agency "may" order reinstatement; none of the texts quoted above makes it automatic.⁠^[1][4]
• "I can wait for the case to end before looking for work." Under Title VII, amounts a person could have earned with reasonable diligence reduce back pay.⁠^[1]
• "Back pay under Title VII runs from whenever the problem started." It cannot accrue from more than two years before the EEOC charge.⁠^[1]

Lost pay is one part of a recovery. For the others, see the guides on emotional distress damages, punitive damages and attorney's fees, and the page on what goes into the value of a claim.