As some of you know, I serve as a pro bono mediator for the United States Equal Employment Opportunity Commission. Even though I’ve only been at it for about year, I’m starting to see the same faces. Most of the attorneys know the EEOC-enforced discrimination laws like the back of their hand — some even put me to shame. Others, not so much.
So, allow me to break those down for you after the jump.
Unfortunately, a few of the attorneys with whom I deal are not that
well-versed in the law. This makes my job as a mediator more
challenging. For my job is to facilitate settlement, not evaluate the
merits or educate on the law. And generally, there is a direct
correlation between knowing the law and being able to value one’s case.
So it’s not too uncommon to have this exchange with a novice attorney:
“Eric, what do YOU think this case is worth?”
“Whatever your client feels is reasonable.”
“Yeah, but if you had to put a number on it.”
“I can’t do that.”
“Oh, but you must see these types of cases a lot. What do those cases usually settle for?”
“It varies.”
(Blank stare)
To most accurately value a Title VII or ADA case, the parties need to understand the potential damages that are available to a plaintiff.
These are four types of damages that a jury may award a plaintiff under both Title VII and the ADA:
Back Pay: This is the amount of wages and benefits that the
plaintiff lost from the time of his/her adverse employment action until
verdict. Federal law limits a plaintiff’s back pay recovery to a maximum of a two-year period before the discrimination charge is filed with the EEOC.
Front Pay: The present value of any future wages and benefits
that the plaintiff would reasonably have earned from the defendant had
plaintiff not suffered an adverse employment action. This amount is net
of other future earnings, expenses, interest on any risk-free
investments. How long can front pay last? Good question. Could be weeks,
months, or years.
Compensatory Damages: The amount of damages that will fairly
compensate a plaintiff of any injury that he/she has actually sustained.
This can be for pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life that the plaintiff experienced as a result of the
defendant’s actions. However, a plaintiff cannot recover pain and
suffering damages without first presenting evidence of actual injury.
There is no precise standard for fixing the amount of compensable
damages. However, Title VII caps compensatory damages based upon the
number of employees that a company has.
Punitive Damages: A plaintiff may recover punitive damages
only if he/she can show malice or reckless indifference to the
plaintiff’s federally protected rights. However, a plaintiff may not
recover punitive damages if the fact-finder determines that the
defendant made a good-faith attempt to comply with the law by adopting
policies and procedures designed to prevent unlawful discrimination in
the workplace. Like compensatory damages, Title VII punitive damages are capped based on the number of employees.
Now there are no more excuses my employer-friends. You should know how to value an employee’s Title VII or ADA claim.
Hopefully, you’ll never have to do it.