Damages in a Title VII Employment Discrimination Case

Damages in Title VII casesThe 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.

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4 Responses to Damages in a Title VII Employment Discrimination Case

  1. Louetta Finch says:

    I just stumbled upon your website, and am so glad.I just read the article on Title VII. It helped me to start to get an understanding of damages. This part confuses me. I am not sure if employment discrimination is liquidated or unliquidated. And apparently interest does not attach to one of those. I also do not have a clue about making up jury questions that I am supposed to have ready. I do not understand the differences between rule 1.904 to enlarge and a motion to vacate ruling or judgment which is a different rule. When to file what and how many day I have is confusing. The amount of days differs and the count differs between whether the count is from the entry in the record and if a person gets extra three days mailing time. I am lost but doing my best to stay afloat. I am sorry that I started this without a lawyer. But every lawyer that I spoke with denied me. It came down to a time frame of I just go for it or forget it. Boy am I in over my head. My best hope at this point is that I come out of this without owing any money to anyone. I have spent hours goggling to try and find the correct application of the laws to my case. I am a pro se plaintiff in an employment discrimination case state court. I am claiming discrimination under age and diabetes. I did not receive lunch breaks as did the other people in my department on the day shift. And I did not get paid for the break that I missed. I became ill and depressed working 8 1/2 hours mostly every day. Or when I did get my break it would be like an hour before quit time. With diabetes this is not good. I quit and the administrative law judge awarded me unemployment on the basis that the quit was the fault of the employer. I also filed with Civil Rights and received a right to sue letter. I filed in 2009.Anyway, just a little background. I know you have no intention of taking my case. But I would be most grateful for some help with the laws. The rules and laws are like a giant maze. I think that one applies only to find out that it is applicable upon another rule. And worst of all, I am told that I must know and understand every law that governs my case and follow all the rules. Well sure a reasonable attempt at research on case law to apply the laws would surely be required and a presentation of documents in the correct format and printed for legibility. But the rest is crazy making. This is especially so since the opposing attorney does not follow the rules and nothing is done despite my efforts at filing motions to compel. He has been in contempt of court for two years on a discovery request. We are going into the fourth year of battle. Trial is scheduled for June 3, 2013. He failed to adequately answer interrogatories. He told the judge that he did not understand my questions. Well after all, I am not an attorney and so the interrogatories needed to be recast. The judge denied me. Defendants have destroyed evidence and no matter what I ask for it does not meet the substance of the request, or he sends something that I did not request and is useless as evidence. To date I still do not have any evidence from the defendants that I can present to a jury. I am on disability and cannot afford to depose the defendants. so that is another form of evidence from which I am barred. After multiple motions to comply, finally I go to a hearing on the motion to compel tomorrow. This is the second hearing for the same thing plus asking the court to rule on my spoliation motion. The court so far has refused to rule. Only now the attorney is asking for judgment to be rendered against me because I requested for accommodations for the deposition and the court. I asked to postpone the deposition to go to a specialist about my request. I cancelled the deposition and asked the court for consideration of my request and assured the court that I have every intention of submitting to a deposition. I dread the deposition as he will slaughter me without an attorney present. I won’t know when to object. When I complained to the court, the judge stated well that is why a person needs to have an attorney and that since I chose to go forward without an attorney, I will just have to face the consequences. According to them no one except for a blind or deaf person has ever requested accommodations. So because they don’t accommodate on a regular basis, I am out of luck. And because I know the rules about deposition and did not go to the deposition my case needs to be dismissed as a punishment. Frankly, I will not be surprised if the judge either dismissed my case (in which case I need to know how to file to vacate the judgment)or allows the defendants extra time that they requested for dispositive motions. Well thanks for letting me vent and most especially thank you for the simple to understand article. I noticed links to go to for other information. So I will be using this cite often. Thank you. Louetta

    • fl_litig8r says:

      Damages are only liquidated if they are not subject to dispute, such as when they are fixed by a contract, stipulation by the parties or prior court order. An argument can be made that certain elements of damages in employment discrimination cases are liquidated under some conditions — say, for instance, you were denied a promotion that carried a fixed and undisputed increase in salary and/or benefits. Most types of damages are not liquidated prior to winning your case and receiving a judgment (especially non-economic damages, such as emotional distress, which can’t be objectively quantified prior to a finder of fact making a determination). Even economic damages, such as wage loss, are often not liquidated, as they are subject to arguments regarding mitigation. With respect to interest, damages which are liquidated prior to judgment can incur pre-judgment interest from the date(s) they were incurred. All damages will incur post-judgment interest, as they are all fixed by the judgment itself.

      As to jury questions, I am not sure if you are talking about voire dire or jury instructions. Questions for voire dire are way too complicated for me to cover here, but the general gist of the questioning is to determine which potential jury members have a bias either for or against your case. So, their ties to the defendant (or their friends and families ties to the defendant), their experiences with prior lawsuits, either as plaintiff or defendant, and their experiences with discrimination would be general areas you’d want to cover. If you’re talking about jury instructions, that’s a lot easier, as many federal courts have free pattern jury instructions you can download which include instructions for employment discrimination cases. The website for your federal circuit court of appeal would be the best place to look for these (usually in a “forms” section).

      Filing and service deadlines in your local rules of civil procedure can be confusing because, as you’ve mentioned, days can be added to the standard deadlines by things like the mail rule. I’d suggest visiting your local court’s law library, which will likely have on hand several helpful books written about your state’s rules of procedure, explained in a more plain English fashion and covering how the different rules interact. They usually have names like “[Author's Name] on Procedure” or something similar. In law school, an entire course is taught on civil procedure alone, so it’s not a simple topic.

      I’m not going to sugar-coat your chances on winning without a lawyer. Employment discrimination cases are some of the hardest to bring and win, and only a very small percentage of lawyers know this area of law (making it hard to find a lawyer unless you have a very strong and valuable case). I can’t imagine being a lay person trying to pursue such a case without any assistance or the financial resources to conduct adequate discovery. While you are at your law library looking up civil procedure books, you should also hunt down a book or two on general employment discrimination law, which may help you navigate some of the more confusing aspects of these cases. Don’t rely exclusively on Google or Amazon. Most of these types of books are niche products that won’t be readily available from your standard book seller.

      With respect to your deposition, I wouldn’t be particularly worried about being able to object to questions in real time. During depositions, most lawyers don’t object to anything except privilege (which in your case mostly won’t apply because you don’t have a lawyer) or to the “form of the question“. Typically, you’d object to the form of the question if the question itself implies something false, e.g., “So when did you stop beating your wife” (when you never said you beat your wife in the first place) or is so convoluted that it seems to ask multiple unrelated things — which can happen when the lawyer is making up the questions on the fly and just rambles through a question. Most of the time, when you “object to the form”, the lawyer will re-word the question to make it more clear or avoid the false impression. If he doesn’t, you’ve preserved that objection and you just answer as best you can, knowing that his question and answer may not be admissible later (which is why lawyers will more often than not try to re-word the question when such an objection is made).

      As to all other objections, such as relevance, foundation, prejudice, hearsay, etc., you don’t need to make these objections live during the deposition, as you can later raise them through a “motion in limine” or by objecting when the lawyer tries to introduce them into evidence with the court. Through what is known as the “usual stipulation”, all objections except those as to privilege and form are not waived when you don’t raise them during the deposition. The main reason for this is that there is no judge at a deposition to rule on these things in real time, so by not waiving them you allow the party to answer freely, even to objectionable questions, and the deposition goes more quickly and smoothly.

      Of course, at trial, all objections need to made in real time. But for purposes of your deposition, just know that you can raise most objections after the deposition is over and you have a transcript to review. In fact, it is usually considered bad form for a lawyer to object to anything except privilege and form during the actual deposition (though some do it just to be annoying or to try to subtly feed answers to the client).

      I hope you don’t feel too overwhelmed by all of this. While this may not be of much comfort to you, know that many lawyers would be overwhelmed by their first employment discrimination case unless they handled it under the guidance of a more experienced lawyer. You definitely dove into the deep end by bringing such a case pro se.

  2. leronald reid says:

    That good to know there help out here

  3. Leronaldreid@ymail.com says:

    Won my eeo case in march work for united state postal service haven heard anything since gone on5mounth

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