One of the most common inquiries I receive from prospective clients is what is the value of their employment discrimination case. New York employment discrimination cases have a very different calculus compared to a personal injury or mass tort action. The value of a case is firstly dependent on whether you can fulfill all the elements of a discrimination cause of action, and then you move on to the associated remedies, which we will describe in more detail below. However, you should be aware that there is no magic prognosticator that will give you an exact number of what a case is worth – this is simply a tool to assess probable damages.
Commonly, damages available in employment discrimination action can be separated into the following categories:
• Economic damages,
• Compensatory damages,
• Punitive damages,
• Liquidated damages, and
• Attorney fees.
Below is a brief breakdown of what statutes are involved in employment discrimination actions.
Applicable Employment Discrimination Statutes
• Title VII of the Civil Rights Act of 1964 (Title VII)
• The New York State Human Rights Law (NYSHRL)
• The New York City Human Rights Law (NYCHRL)
• The Age Discrimination in Employment Act of 1967 (ADEA)
• The Americans with Disabilities Act of 1990 (ADA)
• Family and Medical Leave Act of 1993 (FMLA)
• The Equal Pay Act of 1963 (EPA)
Categories of Damages
In general, the goal of the law is to put the victim of any injury, including discrimination in the same position in which he or she would have been if the discrimination had not occurred, essentially trying to make the individual whole again. In discrimination actions this is done by providing monetary damages, the categories of which will be briefly described below.
Economic damages include back pay and front pay, and you can derive from their name that this remedy of damages is based in a calculation of wages.
Back pay is the amount the court will award an aggrieved employee to make whole for all compensation lost as a result of the discharge or other adverse action. The back pay period typically begins from the moment of an employee is discharged and continues to the time of trial. In addition to all of an employee’s lost wages, this figure can include the value of bonuses, any lost benefits, and overtime had there been no discharge. The law does require an employee to mitigate damages by looking for and taking a new job if one is available and able to work. Any such provisional compensation would be offset against the back pay. If, however, despite best efforts, an employee is unable to secure a new job, they may not be subject to an offset.
Front pay is the amount the court will award you for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement, although an employer will not commonly offer reinstatement. It is a discretionary award intended to make victims of discrimination whole where the plaintiff has no reasonable prospect of obtaining comparable alternative employment. This type of remedy typically applies in age discrimination claims, where the chances for an older employee to gain willful employment may be less likely.
Compensatory damages generally compensate employment discrimination victims for losses such as out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).
Punitive damages are designed to punish an employer who has engaged in exceptionally malicious or reckless acts of discrimination. They are recoverable for violations of various statutes, including Title VII and the NYCHRL, but not under the NYSHRL.
Punitive damages can be established either where the employer (1) discriminated or retaliated against the employee with conscious knowledge it was violating the law, or (2) engaged in egregious or outrageous conduct from which an inference of malice or reckless indifference could be drawn.
These limits are as follows under Title VII:
• $50,000 for employers with 15-100 employees;
• $100,000 for employers with 101-200 employees;
• $200,000 for employers with 201-500 employees; and
• $300,000 for employers with more than 500 employees.
No such cap exists for punitive damages under the NYCHRL.
Liquidated damages are damages set by statute including the ADEA, EPA, and the Family and FMLA.
Under the ADEA, a prevailing plaintiff is entitled to liquidated damages in an amount equal to unpaid wages, but only where there was a “willful violation” of the statute.
Such a violation is found to be willful when the employer knew that its conduct violated federal law or showed reckless disregard of that fact.
Attorney’s fees aren’t typically awarded in actions, unless the remedy is prescribed in a statute.
For example, Title VII, the ADEA, the ADA, the FMLA, 42 U.S.C. § 1981, and the NYCHRL (but not the NYSHRL) authorize an award of attorney fees to the prevailing party.
The purpose behind the availability of statutory attorney fees is to encourage aggrieved employees to bring meritorious lawsuits by providing them with a source of funds for retaining competent counsel they may not typically have.
Whether the plaintiff is a prevailing party and what is a reasonable attorney fee are issues that often require careful analysis and may be the subject of extended motion practice.
As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at Risman & Risman, P.C. at (212) 233-6400 or contact us online.
The information at this site has been prepared for general informational purposes only and is offered as a public service. Information on this site does not constitute legal advice and is presented without any representation or warranty whatsoever, including as to the accuracy or completeness of the information.