Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.
Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.
Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.
Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.
Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.
Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.
Punitive damages are even more rare than emotional suffering type damages.
Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.
Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.
But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.