One of the most frequent questions presented to attorneys as part of an employment discrimination case evaluation is: “How much is my case worth?” The short answer is: “It depends.”
People are often target of attorney advertisements on television, social media, radio, and even billboards, sharing their multi-million dollar success stories. Showcasing a high recovery may set prospective clients’ expectations for similar recoveries. But sometimes these stories may be misleading.
The reality is that each situation is different, and the recovery in every case hinges on distinct variables. Estimating damages in personal injury cases or medical malpractice is much different than estimating a recovery for an employment discrimination case. There is guidance based on judicial precedent and regulatory guidelines, but there is no crystal ball.
Several blog articles on our webpage discuss the different types of employment discrimination and present examples of representative discrimination cases with different awards. When filing a claim, a prospective plaintiff must be aware that while the discrimination elements may repeat from one case to another, recoveries occupy a wide spectrum, from the thousands to multi-million dollar awards.
Aside from the unique facts of each case, employment discrimination damages are shaped by a diversity of factors. These include, but are not limited to, the alleged violations, the applicable federal, state, and local laws, how much time has passed since the discrimination occurred, the defenses presented by the employer, the behavior of both parties, and whether the suit is brought at an agency level or by individuals, among other factors.
Scope of actionable discrimination
Discrimination violations are legally actionable under various federal, state, and/or local laws for specific areas. The areas protected by federal laws include discrimination on the basis of age, disability, equal pay, genetic information, harassment, national origin, pregnancy, race and color, religion, retaliation, sex, and sexual harassment. Florida provides added protection for marital status.
Most of these laws apply to employers with 15 or more employees, and to 20 or more, or 50 or more employees, in some cases. Labor organizations and employment agencies with fewer than 15 employees may still be subject to federal law restrictions. At a local level, city and county ordinances may be more restrictive, applying to employers with fewer employees.
Types of damages available
To grant relief, courts look the discriminatory behavior, the impact it had on the victim, the employer’s intent, the parties conduct, and the employer’s defenses, among other factors.
Under federal law, damages may include:
- Equitable Relief – Fees and costs – This includes attorney’s fees, interest, and costs incurred by the victim in bringing up a lawsuit.
- Equitable Relief – Pay – This includes back pay reinstatement or front pay that the victim would have earned but for the discriminatory conduct. This amount is more than wages, and it may include bonuses, commissions and benefits that the victim would have received, as well as compensation for any career setback. Generally, these damages are limited. For example, under Title VII of the Civil Rights Act of 1964 (Title VII), the back pay is not capped, but it may be limited to 2 years prior to the filing of the charge which initiated the case. The back pay period ends at the time of settlement or judgment.
- Compensatory and Punitive damages – Compensatory and punitive damages are provided for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. They are available in the presence of the employer’s malice and reckless indifference and depend on the level of suffering caused by the employer’s conduct on the victim. Under Title VII, these damages are capped on a scale based on the number of employees the employer had at the time of the violation. For example, for employers with 15-100 employees, the cap is $50,000. The maximum cap is $300,000 for employers with more than 500 employees.
A punitive damages award depends on various factors, such as whether the employer acted in good faith in trying to implement a policy or lied to cover up the discrimination, among others. Punitive damages are not available against a governmental entity or political subdivision and are not automatically awarded.
Compensatory and punitive damages may not be available for a retaliation claim under the Americans with Disabilities Act of 1990 (ADA), but they are available in addition to damages under § 706(g) of Title VII. Mental anguish damages are not allowed in actions under the Age Discrimination in Employment Act of 1967 (ADEA).
- Liquidated damages – These damages are available in age and equal pay actions (where no compensatory or punitive damages are awarded.) They are limited to the amount of back pay when there is a willful violation of the Equal Pay Act of 1963 (EPA) or the
- Injunctive relief – This relief is available to make the employee whole and to compel the employer to stop its actions and remedy its policies (often includes employee training or employer policy revision.) For example: a court may enjoin the use of specific discriminatory employment practices, such as height and weight requirements, scored tests, educational requirements, and age limits, among other practices. Make-whole remedies may include hiring or reinstatement, promotion, tenure, restoration of benefits, salary adjustment, expunging adverse material from personnel files, and reasonable accommodation.
Additional damages may be available under state and local law. Under Florida law, damages may include punitive damages (capped at $100,000) and injunctive relief to stop the employer’s actions and/or make the injured employee whole.
The second part of this article will address Factors Affecting the Size of the Recovery in a discrimination claim.
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing potential damages liability or recovery in a discrimination situation and offer legal representation, if necessary. Click here to contact an attorney now.