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What damages are recoverable in a discrimination or harassment case? - New York Employment Law Show - Episode 5

Posted by Scott M. Peterson | Feb 11, 2022


Today we're going to talk about what types of damages you mat be entitled to in the event of employment discrimination or sexual harassment. First, it's important to remember that the laws governing employment discrimination, medical leave discrimination and sexual harassment differ between federal laws and state laws. Each of these laws permits a different element of damages to a successful plaintiff. So, if you have a successful claim for sexual harassment, for example, your damages may include things such as damages for the emotional distress that you've endured as a result of this sexual harassment.

 The primary types of emotional distress damages

There are generally two types of those kind of damages. There are what are known as “garden-variety damages” which mean the sort of ordinary damages that a person might be expected to encounter through difficult times, and then there are more specific types of damages where you have  sought and received treatment from a psychologist, counselor or some kind of medical provider for distress related to the conduct. When you've been receiving treatment, generally speaking, courts have determined that you are entitled to a larger amount of money from a jury. 

Economic loss

 You also are entitled to recover for your economic loss.  Included in that loss is lost wages, in two ways. You are entitled to lost wages from the date that you were fired or that you had to resign because the situation was too hostile, up through the date of the settlement or jury verdict.  And you may also be entitled to damages into the future.

Future lost wages, or front pay, is based upon an assessment of whether you have a new job, what the prospects of a new job are, and whether and to what degree you have looked for a new job.  These elements are generally considered factored into the determination of what you may be entitled to for front pay. To use an example, if you were fired under circumstances that gave rise to a claim of sexual harassment and you were earning $50,000 a year, and you've been out of work for a year, your back wages would be $50,000. If you have made several attempts but have been unable to secure a new job, you may also be entitled to one or more years of lost wages into the future at a similar rate.  If, however, you have found a new job but you're only now making $30,000, you may be entitled to an award of the difference between the two ($20,000 in this example) per year for some duration into the future.

In many cases you are also entitled to have your attorney's fees paid. 

Punitive damages

Another potential element of damages are punitive damages. Punitive damages are meant to punish the wrongdoer, and you occasionally read or hear about them because they can result in large jury verdicts.  In reality, however, punitive damages are not really awarded that often. They are generally discretionary, which means that it is typically left to the judge to make a determination as to whether the conduct was so egregious (so bad) as to warrant an award of damages to punish the wrongdoer.  It is also important to note that if you work or worked for a municipality, generally, punitive damages are recoverable. 

Additional damages available

Other laws protecting employees have different element of damages which may be recoverable as well.  A successful plaintiff under the Family and  Medical Leave Act ("FMLA"), for example, may be able to recover liquidated damages, or double damages. 

Conclusion

Different statutes have different elements of recoverable damages.  Once again this varies based upon whether the claims arise under federal law, state law or both, and much of the assessment will depend upon the size of your employer.

These are just some of the issues that go into the consideration of whether it makes sense to pursue a lawsuit, or what type of legal proceeding you may want to pursue, which is why it's very important that if you're going to work with an attorney following an employment discrimination or sexual harassment matter, you work with someone who has experience. This can be a very complex system, so it pays to take your time and find the right fit. If you have questions please feel free to contact us at the contact form on this page today.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.

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