Most employment cases aren't going to be those big headline multimillion dollar awards. Usually, if you're lucky, you might recover lost wages and benefits. Very few cases result in big money for the former employee, so don't assume you have a winning lottery ticket as soon as a coworker makes a racist or sexist comment.
Damages are the monetary value of the losses that a judge or jury awards to you if you win a lawsuit. They have to have been reasonably foreseeable, and not speculative. Compensatory damages are those that compensate for the actual loss. Punitive damages are those which punish someone who commits an intentional tort to act as a deterrent to future such behavior.
In employment, different types of cases can result in different types of damages. Here are some of the types of damages you might see awarded:
You might see this referred to as "back pay" in discrimination, whistle-blower, and other statute-based cases. In some cases, it will just be called "lost wages." This will be the difference between what you were making when you lost your job, or were demoted, and what you made up to the time of the verdict. If the case is about the denial of a promotion or job, it's the difference between what you would have made and what you did make.
Future Lost Wages
This is an estimate of the difference you'll experience down the road. The court might allow a year or five or even more, depending on how long it will be before you catch up and how long it's reasonably certain to occur in the future. If you landed on your feet and got an equivalent or better job, there won't be future lost wages. Don't ever say you don't want your job back. The day you say that, you'll probably cut off your right to back pay. Even if you don't want reinstatement, it might be wise to let your lawyer keep asking for it. If it's awarded, you can always turn it down.
These can be what you've already lost in the way of pension, insurance, stock and other benefits, or even what you'll lose in the future.
These are out-of-pocket expenses, such as medical expenses, lost wages, lost benefits and property damage.
Discrimination and personal injury cases allow you to recover for emotional distress. You don't have to go to a psychiatrist to claim emotional distress. Job loss, humiliation and other emotional suffering can be compensated. Many other types of claims don't allow emotional distress damages. Most whistle-blower statutes, Family and Medical Leave, and many other statutes don't allow for emotional distress damages, so you're stuck with only compensatory damages. Don't exaggerate: Most cases don't cause you to have a nervous breakdown or get post-traumatic stress disorder. If a jury thinks you're exaggerating your injuries, they'll punish you and might disbelieve your entire case.
Punitive damages are to punish reckless or intentional wrongdoing, and they are really hard to get. While you do see some big punitive damage awards, what the press rarely covers as widely is the hearing at which the judge slashes them to a much smaller amount or denies them altogether.
Some types of cases have a maximum amount of money, called a cap, that you're allowed to get if you win. It's important to know what the maximum recovery is in your case, so you can make realistic demands. If one claim you have is capped, others might not be. For instance, state statutes on discrimination might not have the same, or any, caps on damages. You might have to pursue multiple claims in the same suit in order to be made whole. However, caps are generally per case, not per incident. Cases against government entities (federal, state or local) usually have caps, sometimes around $100,000. In Title VII, which is where most discrimination cases fall, the damages are capped depending on how large the company is.
- 15 to 100 employees, $50,000
- 101 to 200 employees, $100,000
- 201 to 500 employees, $200,000
- 500-plus employees, $300,000
Damage caps keep most cases from reaching the multimillion dollar range. However, because of the differences between federal, state and local laws, and because the facts of every case are different, you should speak to an employment lawyer in your state about what the possible recovery could be in your particular case.
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