The damages available in Title VII employment discrimination cases can vary from case to case. I don’t mean simply that each case is worth a different amount. Under Title VII, some types of cases will not entitle you to recover compensatory (emotional distress) or punitive damages. In cases where compensatory and punitive damages are available, there are statutory caps on these damages which vary depending on the number of employees your employer has. Depending on the motives of your employer, you may not be able to recover any monetary damages at all (aside from attorney’s fees). Seem complicated? Well, read on to have it explained in the simplest terms possible.
How an Employer’s Motives Affect the Types of Damages You Can Recover in Title VII Cases
In “disparate treatment” cases under Title VII, cases in which the employer is accused of intentional discrimination, the employer may allege that its employment decision was made with “mixed motives” — meaning that discrimination was only one motive among many for its employment decision. If the employer can prove that it acted with mixed motives and that it would have made the same employment decision even if it lacked a discriminatory motive, the plaintiff can not receive equitable relief (explained below), compensatory or punitive damages. Rather, the plaintiff will usually only receive a declaratory judgment (stating that discrimination was a motive in the employment decision) and an award of attorney’s fees.
A plaintiff’s damages can also be limited in cases where an employer acts with a discriminatory motive when making an employment decision, but later discovers evidence which would have legally allowed it to take that employment action — this is known as an “after-acquired evidence case.” Very often, after an employer is accused of discrimination it will actively look for evidence which would have allowed it to make its employment decision legitimately, such as a lie on the plaintiff’s resume or job application (they can find such evidence at any time prior to trial). In these cases, the employee will not be awarded reinstatement, and back and front pay will not be awarded past the time at which the employer discovered the new evidence. Generally, compensatory and punitive damages are still awardable.
In “disparate impact” cases, in which an employer’s facially non-discriminatory policy has a significantly higher impact on a protected class of employees (such as the arbitrary height requirement described in this article), plaintiffs can recover equitable relief and attorney’s fees, but not compensatory or punitive damages.
Title VII Damages — Equitable Relief
“Equitable relief” in Title VII cases means relief which puts the plaintiff into the economic position he would have been in had the discrimination not occurred. This usually includes back pay and either front pay or an order requiring the employer to place the employee in the job position he was denied due to discrimination.
Punitive damages and compensatory damages for emotional distress are not considered “equitable relief”, so they are treated separately (and are not always available) under Title VII.
Title VII Damages — Back Pay
In most Title VII cases, plaintiffs suffer some form of economic damages from their employers’ discriminatory actions. If you’ve been demoted (or your employer failed to promote you), fired (or the employer refused to hire you), or suffered lower pay than your peers for discriminatory reasons, you are entitled to recover the back pay that you would have received had the discrimination not occurred. “Back pay” under Title VII includes not only wages, but also the value of lost benefits (such as pension and insurance benefits), vacation time, bonuses, and raises, among other things.
Title VII does not place a monetary cap on back pay, regardless of employer size (of course, your employer still has to meet the 15 employee minimum in order to be subject to Title VII). Rather, it places a time limit on how far back your back pay damages can extend. That limit is 2 years prior to the filing of the EEOC charge which initiated your case. The “back pay” period ends at the time of settlement or judgment.
Title VII requires that employees mitigate their back pay damages. So, if an employee was terminated, he would not be able to refuse other available work in an attempt to preserve his full back pay claim. A back pay award will be reduced by the amount of the employee’s actual earnings during the relevant period or the amount the employee could have earned with reasonable diligence. The burden of proof is on the employer to show that the plaintiff did not adequately mitigate his damages.
Title VII Damages — Reinstatement or Front Pay
If reasonable, the court can order the employer to place the employee in the job position he would have been given had discrimination not occurred. So, in the case of a termination, the court can order the employer to rehire and reinstate the employee to his old position. If the employee was passed over for a promotion, the court can order that the employee be given that promotion — it can even order the demotion of the employee who received the position in the place of the plaintiff.
While courts prefer to have the employee restored to the position he was denied, if it would be unreasonable for the plaintiff to work for the employer again, an award of “front pay” is made instead. The front pay award accounts for the time it will take the plaintiff to find a new job, along with the pay disparity the plaintiff will suffer due to the expected career setback of starting with a new employer. As with “back pay,” front pay under Title VII includes more than just wages, such as the value of lost bonuses, commissions and employee benefits.
Title VII Damages — Compensatory Damages
Compensatory damages under Title VII mainly consists of the emotional distress a plaintiff suffers due to an employer’s discriminatory treatment. Clearly, the value of these damages will depend on the severity of the employer’s actions (some practices are more abusive than others). Additionally, there are caps placed on compensatory damages awardable under Title VII, based on the number of employees (full or part time) who were on the employer’s payroll during the year of (or the year preceding) the discriminatory conduct.
The caps, which limit the total award of compensatory and punitive damages combined, are as follows:
- 15 to 100 employees — $50,000.00
- 101 to 200 employees — $100,000.00
- 201 to 500 employees — $200,000.00
- 501 or more employees — $300,000.00
While medical evidence of emotional distress is not required to support an award of compensatory damages under Title VII, it is clearly helpful, especially if the plaintiff is seeking a large award.
Title VII Damages — Punitive Damages
Punitive damages are not automatically awarded in Title VII cases, even where intentional discrimination is proven. Some factors which the court considers when deciding whether punitive damages are awardable are:
- whether the employer knows of the anti-discrimination laws it is violating (or lies to cover up discrimination);
- whether the discriminators acted with managerial authority;
- whether the employer failed to adequately implement its own anti-discrimination policies; and
- whether the employer failed to act in good faith in enforcing its anti-discrimination policies.
The combined award of punitive and compensatory damages may not exceed the caps stated above in the compensatory damages section. Punitive damages can still be awarded even in cases in which back pay or compensatory damages are not awarded.
Note that punitive damages are not awardable against governmental employers.
Title VII Damages — Attorney’s Fees
Attorney’s fees can be (and most often, are) awarded to a prevailing plaintiff under Title VII. These fees will be based on the number of hours the plaintiff’s attorney spent on the case and the prevailing hourly rates for attorneys of equivalent experience in the geographical area. While technically attorney’s fees can be awarded to a prevailing defendant as well, courts have restricted these awards to cases in which the plaintiff’s case is frivolous. It is not enough that the plaintiff lose. The court must conclude that the plaintiff pursued his case beyond the point at which a reasonable person would conclude that his case was entirely without merit (which may be the outset, in some cases). This is a rare occurrence.
Attorney’s fees can be awarded to a prevailing plaintiff even in cases in which no other monetary damages are awarded, such as cases which only result in declaratory relief, or cases in which an employer successfully asserts a “mixed motives” defense.
Title VII Damages Summary
As an easy reference, here are the types of damages recoverable under the most common Title VII scenarios:
- Disparate treatment claim, non-governmental employer, no mixed motives: All forms of equitable relief, compensatory damages, punitive damages and attorney’s fees;
- Disparate treatment claim, governmental employer, no mixed motives: All forms of equitable relief, compensatory damages and attorney’s fees;
- Disparate treatment claim, either governmental or non-governmental employer, mixed motives defense successfully asserted: Declaratory relief and attorney’s fees;
- Disparate impact claim, either governmental or non-governmental employer: All forms of equitable relief and attorney’s fees;
Note that these are the types of relief available. Not every plaintiff which falls into these categories will be able to prove entitlement to all types of damages available.