Introduction – Recovering Damages in a Discrimination Case
This article will explain the common forms of damages that an employee can recover when they prevail in their discrimination case. At the outset it is important to note that damages are extremely fact and case dependent, so what a complainant was awarded in one case is rarely predictive of what a complainant will recover in another case. Nonetheless, there are some common types of damages and fact patterns that we can discuss to give you a better understanding of the type of damages you may be able to recover. Finally, we note that the topic of damages and relief is extremely complex, changes often, and that many practicing attorneys regularly have to research the law related to damages. Therefore, it is generally best to get professional advice from a lawyer that specializes in discrimination law.
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Purpose of Discrimination Laws – Appropriate Remedies
The purpose of discrimination laws in general, including Title VII, the Rehabilitation Act, and the ADEA, are to put the person who was subject to discrimination in a position they would have been had no discrimination occurred. Another common way this is phrased is to “make the complainant whole” by providing them remedies and covering costs and other damages they incurred as a result of discrimination. This means that the bulk of the remedies available to someone who has been subject to discrimination focus on putting them in a position they would be had the discrimination never occurred. For example, if a complainant was wrongfully terminated due to a discriminatory firing, they would be reinstated to their position and provided back pay for the time they were out of work.
Proving Damages in a discrimination case
Damages must be proven in discrimination cases. Generally, with all damages, the more proof the better. Providing conclusory statements about how you have been harmed or the economic losses you have suffered is typically not sufficient. You need to provide evidence in support of your claims when possible. Also note that failing to provide evidence of damages, in some instances, can waive or prevent you from recovering those damages later.
For example, lets say you were subject to a hostile work environment and because of it you started seeing a psychologist. You should provide all the billing statements from your psychologist demonstrating how much you had to pay to receive counseling. If you provide this evidence, you are much more likely to recover damages from the agency for those expenditures in the form of past-pecuniary (economic) damages.
As to the specific burden of proof, complainants must show with reasonable certainty that the employer’s discrimination was the cause of the injury/loss.
Limitations on Damages
There are certain limitations on the type and amount of damages that can be recoved in a discrimination case. The recovery will depend on the size of the employer, and its legal status (government vs. private-sector employer).
42 U.S. Code § 1981a(b) provides for damages and limitations to recovery of certain damages for cases of intentional discrimination cases.
(b) Compensatory and punitive damages
(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.
(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5 (g)].
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party—
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
No punitive damages against federal government
As you can see above, the federal government is exempt from punitive damages. Therefore if you are a federal employee suing an agency you cannot from seek punitive damages.
As highlighted above, generally there is a cap of $300,000 on compensatory damages for any federal employee seeking redress of discrimination claims.
Types of Damages Explained
There are various types of damages available to complainants in a discrimination case. Below we cover the more common types of damages and provide examples of the types of recovery that fit into each category.
Compensatory damages are awarded to complainants to compensate them for the more intangible types of injuries one can suffer as a result of unlawful discrimination. Compensatory damages are awarded in addition to other remedies under Title VII. As noted above, compensatory damages are subject to caps. Typically, for large and governmental employers, compensatory damages are capped at $300,000. Sometimes compensatory damages are referred to as non-pecuniary damages.
Common examples of compensatory damages
These are just some of the types of compensatory examples that may be subject to recovery. The title of the harm itself does not control, the relevant inquiry is into the harm the complainant suffered and its relation to the misconduct engaged in by the employer.
- emotional anguish
- pain and suffering
- loss of enjoyment of life
- injury to professional standing
- injury to character and reputation
- injury to credit standing
- loss of health
Proving Compensatory Damages
As discussed above, you must not only show that you have suffered a harm but that the harm was the result of the unlawful discrimination. See Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977). Proof of compensatory damages is more difficult than economic/pecuniary damages because it is much harder to quantify emotional anguish than it is to quantify moving expenses or medical bills. “Emotional harm may manifest itself, for example, as sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown. Physical manifestations of emotional harm may consist of ulcers, gastrointestinal disorders, hair loss, or headaches.” See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991. Every case is different, but detailed testimony related to your compensatory damages and the harm you suffered is critical to providing these damages and getting a ruling in your favor. In some instances, the testimony of a doctor may be necessary to help prove damages. Further, when compensatory damages are in issue in the case, employers can sometimes require a complainant to receive a medical examination to aid them in the determination of potential damages. See EEOC Management Directive
MD-110 Chapter 7.
Pecuniary Damages (Also called economic damages)
Pecuniary is legal speak for monetary or economic loss. The definition of pecuniary is “of, relating to, or consisting of money.” Accordingly, you can think of pecuniary damages as economic or monetary damages. These are damages that relate to concrete expenses incurred, or that will be incurred as a result of the discrimination.
Pecuniary losses include, moving expenses, job search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket
expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer’s discriminatory act or conduct was the cause
of his loss. The critical question is whether the complaining party incurred the pecuniary losses as a result of the employer’s discriminatory action or conduct. Also, the costs should be reasonable. It would be unreasonable for a person to seek reimbursement of shopping expenses because “retail therapy” was the only way they could feel better about the discrimination they had to face.
Past vs. Future Pecuniary/economic damages
Past economic (pecuniary) damages are generally concrete and can be proven easily. Examples include medical or counseling bills. Future economic damages are more difficult to quantify and are inherently speculative as they seek to cover future and semi-foreseeable economic harms.
Lets say a complainant was subject to a hostile work environment, and during the hearing her treating psychologist testified that she thought the complainant would need counseling for additional year to recover from the discriminatory acts. The cost of that additional year of counseling is an example of a future pecuniary, or economic, damages award.
Regarding the cap on compensatory damages discussed above, future-pecuniary damage awards are subject to that $300,000 damages cap, whereas past-pecuniary damages are not. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991.
When there is a finding of discrimination the complainant can be awarded reasonable attorney’s fees. Typically, these fees go directly to the attorney but in some instances they can be used to offset any payment the complainant made to their attorney, making the representation effectively free. Your eligibility for an award of attorney’s fees will depend on the theories you advanced. Also, only attorney’s can receive attorney’s fees, so if you represent yourself, you will not be awarded attorney’s fees.
In some instances, punitive damages are awarded if the misconduct in question was particuarly egregious. Punitive damages are awarded to the complainant but are used to punish the offender and deter future misconduct. Punitive damages are available only if the complaining party demonstrates that the respondent engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.”
As noted above, punitive damages are not available in discrimination cases against the government or federal agencies.
Duty to Mitigate Damages
Complainants have a duty to mitigate damages in discrimination cases. Accordingly, you cannot recover for any harm that you could have avoided or minimized with reasonable effort on your part.
Say an employee is wrongfully terminated for discriminatory reasons. They promptly file a case but it takes a few years to litigate and resolve. If the employee never tries to get another job their eventual backpay award may be offset by a reasonable salary they could have earned had they looked for work. The defendant in the discrimination case will have the burden of proving a complainant failed to mitigate damages. Nonetheless, it is important that complainants be aware of this duty to mitigate and take steps to do so when appropriate. Fleming v. County of Kane, State of Ill., 898 F.2d 553, 560 (7th Cir. 1990) (the burden is on the employer to prove, as an affirmative defense, that the employee failed to mitigate damages when seeking lost wages). However, in federal sector cases their is no duty to mitigate during the administrative process.
- EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991.
- U.S. Equal Employment Opportunity Commission Handbook for Administrative Judges July 1, 2002
- EEOC MD-110 on Hearings
Hopefully this article gave you a better idea of the types of damages available in a discrimination case and the kind of evidence that you need to prove those damages. As stated in the introduction, damages depend greatly on the facts of your case and you need to be mindful that outcomes in other cases may not be predictive of the likely award in your case. Additionally, because the law related to damages is evolving and complex it is best to have an experienced attorney to advise you on what types of damages may be available in your case and what evidence you need to gather to help prove your damages.
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