Remedies under Title VII

Summary of Damages

A broad range of remedies are available in Title VII actions, which include compensatory and punitive damages in cases involving intentional discrimination based on a person’s race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information.

Compensatory damages include the lost income, potential income differential (had the employee been promoted), and loss of future income, if any. Costs associated with employment search or even compensation for emotional harm may be included.

Punitive damages are rare but may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.
There are limits on the amount of compensatory and punitive damages a person can recover. These limits vary depending on the size of the employer:
– For employers with 15-100 employees, the limit is $50,000.
– For employers with 101-200 employees, the limit is $100,000.
– For employers with 201-500 employees, the limit is $200,000.
– For employers with more than 500 employees, the limit is $300,000 (FindLaw, 2019).

In cases involving intentional age discrimination or “sex-based wage discrimination” under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages” equal to back pay (Id.).

Back Pay

Back pay under Title VII includes primarily the loss of income, but may also include the loss of benefits (such as pension and insurance benefits), vacation time, bonuses, and pay raises. Back pay is limited by 2 years prior to the filing of the EEOC claim.

Reinstatement or Front Pay

The court may order the employer to rehire the employee (or remedy the action by other means: if the employee claims she should have been promoted or was unjustifiably and wrongfully demoted). If it seems unreasonable because the employer-employee relationship has so deteriorated that they cannot cooperate (e.g. Patterson v. Masem, 594 F. Supp. 386, supra) the court may award “front pay,” which is to compensate for the time it will take the plaintiff to find a new position, as well as the potential wage disparity between the old and the new job. Again, this may include more than just wages – but also the value of lost bonuses, commissions and employee benefits.

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 (see above) or an order requiring the employer to place the employee in the job position he was denied due to discrimination (Fl litig8r, 2012).

Compensatory and Punitive Damages

Compensatory damages under Title VII means primarily emotional distress. Because such damages are vague (often requiring an expert to testify), there are mandatory caps on them (stated above).

Punitive damages are awarded rarely, even where intent is proven. The courts look for more than intent, such as malice or ill-will, intentional violation coupled with managerial authority and clear lack of good faith in enforcing anti-discrimination policies. Punitive damages are not available in a law suit against a governmental employer.

The combined award of punitive and compensatory damages may not exceed the caps stated above (Fl litig8r, 2012).

Avoidable Consequences and Mitigation

If the employer is able to rebut the first claim (of disparate treatment), and the court acknowledges that the employer’s motives may have been “mixed,” it will commonly award the attorney fees but no other remedy.

The doctrine of Avoidable Consequences means that plaintiff’s recoverable damages will not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation. The court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998, pp. 765, 1036), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (p. 807, 1998) stated that, in an employee’s action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) seeking damages for workplace sexual harassment not involving a “tangible employment action,” (such as demotion or termination) an employer “may establish a partial or complete defense” by proving:

  • That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
  • That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

This doctrine often mitigates or completely eviscerates plaintiff’s rights to damages.

Attorney Fees

Last but not least (certainly for attorneys), attorney fees will be awarded to the prevailing plaintiff under Title VII. These fees are usually based on the reasonable hourly rates for attorneys of equivalent experience in the same area. If the court concludes that the plaintiff pursued (or continued to pursue, upon adjudication) the case frivolously and without merit, attorney fees may be awarded to the defendant. This happens rarely, because meritless litigation is often grounds for reprimand, suspension, or even legal malpractice.

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References:

Essex, N. L. (2016). School Law and the Public Schools. Memphis, TN: Pearson Education Press.

FindLaw (2019). Title IX Remedies and Criticisms. Thomson Reuters. Retrieved from https://education.findlaw.com/discrimination-harassment-at-school/title-ix-remedies-and-criticisms.html

Fl litig8r (2012). Damages in Title VII Employment Discrimination Case. Retrieved from http://www.workplacediscriminationlaw.com/damages-in-a-title-vii-employment-discrimination-case/

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