Remedies

Question 1

What type of remedies are available to ameliorate discrimination?

Answer 1

1. Legal remedies and
   
   1. compensatory damages
   2. punitive damages
   3. liquidated damages
   4. attorney’s fees
2. equitable remedies
   
   1. reinstatement and instatement
   2. back pay
   3. front pay
   4. affirmative action

Question 2

What are compensatory damages and when are they available?

Answer 2

Damages awarded for a plaintiff’s actual pecuniary and non-pecuniary (including emotional distress) losses as a result of the discrimination.

They are available under Title VII and the ADA (but capped), but not under the ADEA.

Question 3

How are compensatory damages proven and measured for non-pecuniary damages?

Answer 3

They are proven by showing some outward manifestations of emotional harm, like depression, sleeplessness, headaches, ulcers, anxiety, weight loss, excessive fatigue

They are measured according to the severity of the emotional distress, humiliation, or inconvenience the plaintiff actually suffered as a result of the discrimination.

Question 4

When are punitive damages available?

Answer 4

Under Title VII and the ADA (but not the ADEA) when the employer acted with malice or reckless indifference to the federally protected rights of an aggrieved individual, except when the employer made good faith efforts to comply with the law but its managerial agents made such decisions (malice/reckless indifference).

Question 5

Are compensatory and punitive damages unlimited?

Answer 5

No, but the cap depends on the number of employees at the time the discrimination occurred.

1. For employers with between 15 and 100 employees, the cap is $50,000.
2. For employers with between 101 and 200 employees, the cap is $100,000.
3. For employers with between 201 and 500 employees, the cap is $200,000.
4. For employers with more than 500 employees, the cap is $300,000.

Question 6

Are liquidated damages available?

Answer 6

Only under the ADEA

1. in cases of willful or reckless violations of the law
2. when the amount is equal to the plaintiff’s “lost wages” OR
3. when the EEOC files suit against the employer directly.

Question 7

Are attorney’s fees recoverable?

Answer 7

It’s up to the court to award attorney’s fees to the prevailing party under all three statutes, but only to the defendant if the plaintiff’s action was frivolous, unreasonable, or without foundation.

A prevailing party is a party that is awarded some relief by the court (excluding the EEOC and the US).

Question 8

When is reinstatement or instatement available?

Answer 8

Any time, unless:

1. it is not feasible because of continuing hostility between the plaintiff and defendant OR
2. it is not feasible because of psychological injuries the discrimination caused the plaintiff, OR
3. it is not available because the employer does not have a job opening.

Question 9

If reinstatement or instatement is not available, what damages will be available?

Answer 9

Front pay, either in lieu of reinstatement or instatement or, if they are unavailable due to a lack of a job opening, until reinstatement becomes available.

Question 10

When is back pay available?

Answer 10

Whenever, even if the plaintiff has not requested it!

Question 11

How is backpay calculated?

Answer 11

From the date the plaintiff first lost wages through the date of judgment and to include lost wages, raises, overtime, bonuses, vacation pay, and retirement benefits.

Question 12

How can an employer limit backpay?

Answer 12

Either by

• showing that the employee would have been terminated before the date of judgment,
• invoking the two-year cap (two years before the charge was filed with the EEOC), OR
• showing that the plaintiff failed to mitigate his backpay damages by using reasonable diligence in finding other suitable employment.

Question 13

To what extent must an employee mitigate backpay damages?

Answer 13

They must use reasonable diligence in finding other suitable employment, but need not go into another line of work, accept a demotion, or take a demeaning position.

If the plaintiff refuses a job substantially equivalent to the one denied or from which they were discharged, they forfeit back pay from that date forward.

Question 14

When is front pay available?

Answer 14

Whenever hiring, promotion, or reinstatement is not feasible, subject to the plaintiff’s reasonable mitigation efforts.

Question 15

Can the court order the employer to do other stuff?

Answer 15

Yes, the court may order the employer to implement affirmative employment practices that benefit a protected class as a whole in certain limited circumstances.