How Much is a Workplace Discrimination Claim Worth?
When you’ve experienced harassment, discrimination, or a hostile working environment, chances are you want justice. The difficult truth is that “justice” is not something you can win in court. You can never be “un-harassed” and you can never get back the time and energy you’ve spent coping with your experience. Instead, courts award money to help you make up the financial losses you suffered because of discrimination.
So, how much is your discrimination case worth?
There is no straight answer because no two cases are the same. This article will explain what you need to win a discrimination claim and the different types of damages you could receive. Keep in mind that every case is different; an experienced employment attorney can help you understand what your case is worth.
Typically, monetary awards (called “damages”) include back pay (lost wages), reinstatement (getting your job back), front pay (if you cannot return to your job), and attorney fees and costs. If your case wins in federal court, you could also receive compensatory damages (pain and suffering) and punitive damages (punishment against an employer). This article goes into more detail on these topics later.
Keep in mind that almost every discrimination case is settled outside of court. Parties can choose mediation or to settle the dispute informally, often reaching an agreement through email exchanges and phone calls. Hiring an employment attorney to help guide you through negotiations can maximize your settlement.
Understanding Workplace Discrimination
Discrimination in the workplace can happen at any stage of employment: the hiring process, performance reviews, scheduling, assignment of duties, workplace policies, pay rates, promotions, training, discipline, and termination.
However, not all adverse employment actions are against the law. Often, employees are surprised to learn their employer can legally fire them without any reason. Generally speaking, employers can single-out any employee and subject them to unfair standards unless the action is based on or motivated by the employee’s membership in a protected class.
A protected class is a group of people with a common characteristic who are legally protected from employment discrimination based on that characteristic. Under the Wisconsin Fair Employment Act (WFEA), protected classes include age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of a lawful product off the employer’s premises during nonworking hours, and declining to attend a meeting or to participate in any communication about religious or political matters.
Under federal law, protected classes include race, color, religion, sex (including pregnancy, sexual orientation, or gender identity and transgender status), national origin, age (40 or older), disability and genetic information (including family medical history).The burden is on the employee to prove that the employer’s action (or inaction) was based on or motivated by the individual’s membership in a protected class.
Discrimination is not always obvious. Most often, discrimination and harassment can be proven only by showing the circumstances surrounding an employer’s action (or inaction) in the workplace. For example, June applies for a job with all the right qualifications, but she does not even get an interview. She later learns that the employer interviewed only applicants in their 20s and 30s for the position. June is 47. Unless the employer can show its choices were not related to age, this is discrimination.
Harassment can be comments or conduct related to your protected class. The comments or actions must be unwelcome and be more significant than occasional teasing or one-off remarks. Whether comments or conduct is severe enough to be considered harassment can vary depending on the situation. For example, Ben works in a lumberyard where his coworkers tease each other all the time. But when they tease Ben, they call him a “sissy,” joke about the way he talks, and pretend to slap him on his butt. Ben is gay and this is harassment because the teasing is based on a protected class.
How to Prove a Discrimination Claim
The complaint deadline (or “statute of limitations”) is 300 days from the date of the discriminatory action.
Generally, to prove a discrimination claim, the employee has to show:
• The employee is a member in a protected class;
• The employee suffered a negative employment action; and
• The employment action was based on or motivated by the individual’s membership in a protected class.
Then, the employer has to show that its actions were based on a legitimate nondiscriminatory reason. If the employer offers such a reason, the burden is on the employee to show the reason is just an excuse to camouflage discrimination.
In a harassment claim, the employee also must show a basis for employer liability.
How to Prove Employer Liability
With limited exception, employers are liable (which means legally responsible) for the actions they commit. In addition, employers can be liable for the actions of others. For example, employers can be liable for discriminatory or harassing behavior from:
• Supervisors, managers, or other people higher-up in the chain-of-command;
• Coworkers (when reported to human resources, a supervisor or manager, or someone higher-up in the in the chain-of-command); or
• Clients, customers, or other third parties (when reported to human resources, a supervisor or manager, or someone higher-up in the in the chain-of-command).
Retaliation for Opposing Discrimination
Often, employees choose not to report discrimination or harassment out of fear of retaliation. Examples of workplace retaliation can include negative performance reviews, failure to promote, cuts in pay, unpleasant changes to the work environment, or other actions (or inactions) that affect the individual’s ability to perform his or her job.
Actions that are protected from retaliation include:
• Complaining about harassment to human resources or management.
• Filing a discrimination or harassment complaint (including filing a complaint internally, with the Equal Employment Opportunity Commission, or the Wisconsin Equal Rights Division).
• Participating in a discrimination or harassment investigation.
Retaliating against an employee for opposing discrimination is illegal under the WFEA and federal employment law.
Damages in a Workplace Discrimination Claim
The damages that you can win depend on the type of claim and where its filed. Although multi-million-dollar settlements make headlines, they are very uncommon in discrimination cases. Instead, courts try to put you back where you would have been financially if you had not experienced discrimination or harassment.
Back Pay, Reinstatement, and Front Pay
Under the WFEA, employees can be entitled to back pay, reinstatement or front pay, as well as attorney fees and costs.
• Back pay includes (but is not limited to) all the wages, salary, commissions, shift differentials, overtime, benefit (including unused vacation time and earned sick pay), and bonuses that an employee loses because of discrimination. If your employer pays for health insurance, you may be entitled to out-of-pocket costs incurred after losing those benefits. Back pay is calculated from the date the loss began to occur until the date of the court’s award. You are required to make a good faith effort to get a new job (if possible), but any wages earned after termination are subtracted from the back pay calculation.
o For example, Imani worked as a cook in a restaurant and took time off to have a baby. While she was on leave, her employer told her they do not have enough work for her to return to, so she was laid off. Imani finds out that the employer hired a new cook just a week later. She sues the restaurant for pregnancy discrimination and wins. The judge awards her the money she would have earned between the date she was scheduled to return after leave and the date of the judge’s decision, as well as the amount she had to pay out-of-pocket for medical care when she lost the employer-sponsored health insurance.
• Reinstatement means getting your job back. Reinstatement is the preferred remedy by courts in discrimination cases.
o For example, Darnell was illegally fired from his retail job and wins his race discrimination claim. The judge awards him backpay and orders the employer to rehire him into his previous position with the same payrate and benefits he earned before he was fired.
• Front pay can be awarded when the court determines that reinstatement is impossible because of retaliation or exceptionally unpleasant circumstances, or when your old job is not available. The amount of front pay depends on several considerations, including whether the court believes you have a reasonable prospect of finding comparable employment. Front pay statutorily restricted to “not less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against,” and can include lost benefits.
For example, Molly is forced to quit her position at a medical office because of sexual harassment from her supervisor. When she wins her harassment lawsuit, the judge concludes that she cannot return to the office because of her seriously antagonistic relationship with management. The judge awards her six months of front pay in lieu of reinstatement.
Compensatory and Punitive Damages
Federal workplace laws (such as Title VII) typically authorize the same damages as the WFEA but allow compensatory and punitive damages as well.
• Compensatory damages are intended to compensate for the loss suffered by the employee and can include emotional pain and suffering (like grief, anxiety, and depression), inconvenience, loss of enjoyment of life, future monetary losses, and other nonmonetary losses. They are often called “actual damages.”
• Punitive damages are available when an employer acts with “malice or reckless disregard” for the employee’s rights. Unlike compensatory damages, punitive damages are designed to punish the employer and make it an example for others. It’s not the severity of the discrimination that matters for punitive damages, but whether the employer knew (or should have known) that its actions were unlawful and chose to do them anyway. Punitive damages are only available against private employers.
Compensatory and punitive damages are capped depending on the size of the employer. The caps range from $50,000 to $300,000. To learn your employer’s cap, look at the number of employees:
• 15-100 employees, $50,000
• 101-200 employees, $100,000
• 201-500 employees, $200,000
• 500 employees or more, $300,000
These caps are separate from lost wages and other damages awards.
Under the federal Age Discrimination in Employment Act and the Equal Pay Act, employees who win their cases can also be awarded liquidated damages (also known as “double damages” because it doubles the back pay) if they can prove the employer willfully discriminated against them.
Attorney’s Fees and Cost
Under Wisconsin and federal discrimination laws, the employer must pay your attorney fees and the costs of bringing the case if you win. However, you could potentially have to pay your employer’s legal costs if you lose. Fortunately, that occurs only if the judge finds that your case is unreasonable, groundless, frivolous, or squarely blocked by precedent.
Mediation and Settlement
Almost every discrimination case is settled outside of court. In fact, the EEOC, the ERD, and most courts offer free mediation before the parties reach the hearing. Alternatively, parties may decide to settle the dispute informally, often reaching an agreement through email exchanges and phone calls.
Even when an employer refuses to admit any wrongdoing, they may choose to pay a settlement to avoid the costs, risk, bad press, and uncertainty of a trial. An experienced attorney can evaluate your claim and guide you through the mediation or settlement negotiation process to help you get the highest amount for your claim.
Consult with An Attorney for More Details About your Claim
Remember, the information here is unspecific because every case is different. If you believe you have experienced discrimination or harassment based on a protected class, you may be entitled to damages. An employment attorney can evaluate your claim, advise you of potential risks and hurdles, and help you understand what you could win. Remember, the complaint deadline (or “statute of limitations”) is 300 days from the date of the discriminatory action.