How much is my discrimination case worth?

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.

You can use the Table of Contents to navigate to the section you like, or you can read the article in full.

So you timely filed a formal EEO complaint, went through the investigation process, and to a hearing or trial and received a ruling in your favor. Now, the question is, what can you recover?

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)].
(3) Limitations
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.

(emphasis mine)

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.

Damage caps

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

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
  • inconvenience
  • 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.

Attorney’s Fees

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.

Punitive damages

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.

Additional Resources

Conclusion

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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What is a hostile work environment?

*Potential client note, we are no longer accepting any new EEOC cases at this time.

In today’s Fast Legal Answers series, I’ll be defining and explaining what a “hostile work environment” is. I hear this phrase thrown around so much that I think many people don’t actually know what a hostile work environment actually is. Is it an unpleasant work environment? Is it an unbearable one? How does it relate to discrimination and protected classes?

After reading this article you will know the legal definition of a hostile work environment, and should have a better idea of what is, and what is not, legally recognized as a hostile work environment.

Hostile work environment and harassment

A hostile work environment is really just a specific form of harassment. The EEOC defines harassment as:

unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Essentially, harassment occurs when a person suffers consistent and unwanted, and objectively offensive, conduct at work as a result of their membership in a protected class.

Elements of a hostile work environment claim

To establish a claim of hostile environment harassment, a complainant (employee) must prove all of the following elements:

  1. They belong to a statutorily protected class;
  2. They were subjected to harassment in the form of unwelcome verbal or physical conduct involving that protected class;
  3. The harassment complained of was based on his or her statutorily protected class;
  4. The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
  5. There is a basis for imputing liability to the employer (it is fair to find the employer liable, they were on notice of the conduct and did nothing, etc.)

Failure to meet or prove all of the above elements will likely result in you losing your case.

Hostile work environment: Legal definition vs. common (mis)conception

I think the common conception of a hostile work environment is a work environment that is unpleasant, generally sucks, or that makes you unhappy. However, as you can see above not only must the environment be intimidating, hostile, and/or offensive, the hostility you are enduring must also be a result of your membership in a protected class. This means that if your boss is a jerk to everyone including you, you won’t have a hostile work environment claim–the harassment must be based on your membership in legally recognized protected class. To illustrate, your boss not liking you because you are fans of rival sports teams, is not actionable discrimination. This is because what team you are a fan of is not a protected class. However, if your boss treated you differently because of the color of your skin, and only used your different team alliances as a pretext, that would be considered discrimination.

How bad does it have to be to be a hostile or offensive work environment?

In determining when a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance, Harris. But the working environment must be objectively hostile. Harris, 510 U.S. at 22. This means that a reasonable person in your shoes would find the work environment hostile or abusive too. So, if your hostile work environment claim rests on the fact that your boss doesn’t say please and thank you whenever they talk to you–your claims will likely fail. A simple way to evaluate whether your claim passes this “reasonable person” test is to explain your working situation to friends or acquaintances, if they strongly agree that your work environment is hostile or unbearable then its likely it is objectively hostile.

Obviously, each case is different, and the EEOC recognizes that a “hostile work environment harassment takes a variety of forms, many factors may affect this determination, including: whether the conduct was verbal or physical, or both; how frequently it was repeated; whether the conduct was hostile and patently offensive; whether others joined in perpetrating the harassment.” Brew v. Holder, EEOC Appeal No. 0120090045 (2009).

It needs to be consistent and pervasive

Generally, a hostile work environment needs to be ongoing and pervasive, typically a single incident or isolated incidents of offensive conduct or remarks generally do not create an abusive environment.” Id.; EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990) (“A ‘hostile environment’ claim generally requires a showing of a pattern of offensive conduct.”).

Typically the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). However, a limited number of highly offensive slurs or derogatory comments may in fact state a claim or support a finding of discrimination under Title VII. See, e.g., Yabuki v. Department of the Army, EEOC Request No. 05920778 (June 4, 1993) (single incident of verbal abuse and negative comment concerning Japanese people sufficient to constitute race and national origin discrimination); Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (three racially derogatory comments over a two-month period by an individual with a history of making such statements was sufficient to state a claim); McAllister v. Department of Defense, EEOC Request No. 05960416 (May 22, 1997) (a supervisor’s disparaging and racist comments to complainant, in conjunction with prior comments by the supervisor demeaning to other protected classes, was sufficient to justify an AJ’s finding of discrimination).

All these cases really just tell us that: it depends. But the more shocking the abuse or negative environment you have been subject to, the less duration or instances of exposure you will have to demonstrate. To put it more directly: as the harassment becomes more severe judge’s will require less instances of the harassment to support a finding of actionable discrimination. Additionally, physical violence, clearly offensive conduct, or group harassment will shift the balance in favor a conclusion of a hostile work environment.

Conclusion

A hostile work environment is much more than just an unpleasant workplace. While each case is different, generally you must make a showing of a persistent and offensive working environment that was generated as a result of your membership in a protected class. Ultimately, it is critical that you consult with an attorney early on if you think you have been subject to harassment or a hostile work environment because the deadline to report discrimination is only 45 days.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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Young v UPS – The Supreme Court’s decision interpreting the Pregnancy Discrimination Act (PDA)

This morning the Supreme Court released its decision in the Pregnancy Discrimination Act (PDA) Case, Young v. UPS. The case, at its core, is about how employers must treat and accommodate pregnant workers compared to other classes of employees. In Ms. Young’s case she was a part-time driver for UPS who, as a result of her pregnancy, could not lift more than 20 pounds. As a result of this limitation, UPS told Young she could not work. She was forced to stay home and ended up losing her employee medical coverage. Young filed suit, pointing to co-workers who were accommodated when they had similar limitations on their ability to work.

The Law – The Pregnancy Discrimination Act

The Pregnancy discrimination act, in relevant part, provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k) (emphasis mine). A fair reading of this law is that if you have two employees with the same limitation on their ability to work, and one of them happens to be pregnant, you need to treat those employees the same. In short, you cannot treat the pregnant woman worse simply because her limitation is a result of her pregnancy.

The EEOC’s position

After the Supreme Court granted certiorari (took the case), the EEOC promulgated guidance on the PDA. The reading was very favorable to pregnant employees.  It went as far to say that facially neutral policies could be in violation of the PDA: “[a]n employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.”) (July 14, 2014) EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, § I.C.1. (emphasis mine).

Ultimately, the Court did not go as far as the EEOC wanted and refused to adopt such an interpretation.

The Supreme Court’s Decision

This decision is not an absolute victory for pregnant workers. Indeed, the Court split the proverbial baby. Instead of adopting the EEOC’s reading, or going the other way and further eviscerating the PDA at the behest of employers like UPS, the court pushed the PDA back into the pre-existing analytical framework The Court had already established for discrimination cases .

That framework was created in McDonnell Douglas Corp. v. Green, 411U. S. 792, 802 (1973). Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. Id., at 802. If she carries her burden, the employer has the opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment. If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.”

In essence the Court acknowledged that Congress acted to protect women’s rights with the pregnancy discrimination act but it will not go as far as the EEOC:

The problem with Young’s [and the EEOC’s] approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.

We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to non pregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Young v. UPS, 12-13.

In reaching its ultimate intepretation of the PDA the court deferred to McDonnell Douglas:

In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination…

Conclusion

Today’s decision does not make the giant leap requested by the EEOC that would have granted super-protection to pregnant employees, it also does not eviscerate a pregnant worker’s rights. It draws a compromise between a pregnant worker always winning, or always losing, their case, by forcing courts to apply the McDonnell Douglas framework on a case-by-case basis. In that framework, an employee must demonstrate a prima facie case of discrimination, then the employer can justify its refusal by providing “legitimate, nondiscriminatory” reasons and finally the employee can come back and show that proffered reasons are in fact pretextual. For illustrative purposes, this means that if an employer accommodates a broad range of employees with limitations similar to those of a pregnant employee but refuses to similarly accommodate her, that pregnant employee will likely be successful in her claim of discrimination.

Ultimately, this decision leaves us without a bright-line rule about pregnancy discrimination. The facts of each case will ultimately determine the outcome, and that really, is how it should be. If you’re interested in reading more about EEO and discrimination law, please read our guide.

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Helpful EEOC Case Resources and Links

This list contains helpful resources for individuals who have filed, or are considering filing discrimination cases with the EEOC. This list may also be helpful for practitioners and representatives who are appear before the EEOC or in Federal District Court. Explanations related to the linked resource are included below the link when necessary.

I regularly add new links and resources to this guide. If you have suggestions feel free to email suggestions.

**Last Updated 1/12/2015**

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Fast Legal Answers: Reasonable Accommodations

For the first, in what is likely to be a continuing series titled Fast Legal Answers, I am going to give a quick and simple overview of a specific legal issue or topic. These article will be short, under 500 words, and will be as direct as possible.

Today I am going to talk about reasonable accommodations.

If you want more depth, I suggest you check out our legal guides section. Some of the articles there are huge and provide all the detail you could ever want.

This article will focus on reasonable accommodations in the federal sector. But the principles have general application.

Reasonable Accommodations

 

What are they?

A reasonable accommodation (RA) is a change to a job, work environment, or the way work is performed, that allows an individual with a disability to apply for or perform a job.

What is the basic rule?

An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. 1630.9. The Commission also notes that an employee must show a nexus between the disabling condition and the requested accommodation. See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).

Ok, explain that in non-legal speak please?

An employer must provide a RA if:

  1. The employee has a disability.
  2. The employee can perform the job normally with an accommodation (otherwise qualified individual).
  3. And that providing an accommodation wouldn’t be HUGE burden on the agency.

Does my employer have to give the accommodation that I ask for?

Nope. The agency just has to give you a reasonable accommodation that “enable[s] [you] to enjoy the same benefits and privileges of the job as enjoyed by non-disabled individuals.” Chausse v. National Security Agency, EEOC Appeal No. 01A32552 (June 25, 2003).

So, for example, if you are blind and need help using your computer, you may request an employee read the screen for you and help you use the mouse and keyboard. Instead, the agency provides you with accessibility software that gives verbal cues and allows you to interact with, and utilize, the computer. In this instance, the accommodation isn’t what you asked for, but it is still likely a reasonable one.

What if my employer refused to accommodate me?

You might have a discrimination case based on your disability, assuming you meet the criteria above, and any potential accommodation wouldn’t put an undue hardship on the agency.

You should be aware of the short 45-day timeline to file a claim with your EEOC counselor. Don’t wait to bring a failure to accommodate to the attention of your EEO office, otherwise you may lose your right to file.

If you think you might have a case, you should consult with an attorney. Reasonable accommodation cases are very fact specific so there is no simple formulaic way to know if you have been the victim of discrimination based on a failure to accommodate.

What constitutes undue hardship?

This too, is a fact-specific inquiry. It really turns on the specifics of your case. Large agencies with huge budgets may have less leeway than a smaller agency squeaking bye. The EEOC suggests the following factors are a good place to start in determining whether there is undue hardship:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  • the impact of the accommodation on the operation of the facility

EEOC Enforcement Guidance, (citing 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997)).

Conclusion

I hope this article helped you understand how reasonable accommodations are analyzed. I’m nearly 200 words over my limit. I guess I’ll have to work on keeping it shorter for my next article in the Fast Legal Answers series.

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