Suppose you’ve met with an attorney or conducted some of your own research (Check out prior blog posts here and here for additional information) and determined that you have a claim under Wisconsin law. Before you decide to proceed with your case, you should know what kind of recovery is available to you if you win. Below is a list of potential damages which might be awarded if you prevail.
Back Pay
As a general rule, employees who prevail in discrimination claims are entitled to back pay. Back pay wages are the wages you would have been paid if you had not been discriminated against and suffered an adverse employment action such as termination or demotion. For example, suppose you were terminated on January 1, 2012 and you earned $20,000 per year at the time of your termination. If, on January 1, 2013, an Administrative Law Judge finds that your employer terminated your employment because of your race, you will be entitled to $20,000 in back pay.1 Back pay is taxed as wages. You may also be entitled to back pay even if you aren’t terminated. For instance, suppose an Administrative Law Judge finds that you were denied a promotion because you were pregnant and that promotion would have increased your salary by $2,500 per year. Your back pay would be $2,500 minus applicable taxes.
Front pay
Front pay wages are the wages you would have made going forward if you had not been terminated or suffered adverse employment action. Administrative Law Judges, instead of awarding front pay, commonly order reinstatement and back pay. Front pay is ONLY available when you prevail in a retaliation case. Even if you prevail in a retaliation case, front pay is capped. You are only entitled to receive front pay for up to 1,000 hours at the hourly rate at which you were paid.
Reinstatement or Rehire
Reinstatement is the preferred remedy in many discrimination cases, in conjunction with back pay. A valid offer of reinstatement will end the accrual of back pay. To be valid, an offer of reinstatement must be specific and unconditional. It must be for the same position, or a substantially equivalent position. Further, you must be afforded a reasonable time to respond to the offer of reinstatement. Even if reinstatement may cause friction for one or both parties, front pay is not an alternative to reinstatement unless retaliation is proven.
Compensatory and Punitive Damages
Compensatory damages are damages awarded to compensate individuals for loss or injury suffered at the hands of the accused. For example, damages awarded for medical conditions which stem from the unlawful action are compensatory. Punitive damages are damages designed to punish the accused for the unlawful behavior. Compensatory and punitive damages are not available remedies in a case before the Equal Rights Division.2
Other remedial orders
An employer may be liable for your out-of-pocket medical expenses if they would have been covered had you not been discriminatorily discharged.
Reinstatement of seniority dates or a retroactive seniority date to the date you would have been hired but for the discrimination is a possible remedy.
Crediting vacation or sick time you would have accrued but for the discriminatory action of your employer is a potential remedy. However, cash payment in lieu of the vacation or sick days is not a permissible remedy.
Interest on award
In some cases, such as those involving long delays by an employer, an Administrative Law Judge may increase a back pay award to reflect accrual of prejudgment interest from the date of your discharge.
Attorney's fees, costs
Reasonable attorney’s fees and costs are commonly awarded when an employee prevails in a discrimination case.
If you or someone you know has a question about a wrongful termination or discriminatory action by an employer, contact Hawks Quindel, S.C. to schedule a consultation with one of our experience employment attorneys.
1 Wisconsin law requires that employees mitigate damages to the extent possible. If you are able to secure full or part time work during the year, those wages will be deducted from your back pay recovery.
2 There was a brief period of time during which compensatory and punitive damages could be sought before the Equal Rights Division. That provision of the Wisconsin Fair Employment Act was eliminated by a bill passed on February 21, 2012. Under current Wisconsin law, unless you received a final determination decision between November 11, 2011 and February 21, 2012, you are not entitled to seek compensatory or punitive damages before the Equal Rights Division.
DAMAGES 101: WHAT TYPES OF DAMAGES ARE AVAILABLE IF I WIN A CASE BEFORE THE WISCONSIN EQUAL RIGHTS DIVISION?