Money Damages
Individuals who have been discriminated against have the right to sue the offender for damages in a civil lawsuit and the right to a jury trial. In employment cases, not only can the plaintiff (the person bringing the lawsuit) ask for reinstatement to his or her job or position, he or she can also ask for damages. Damages are the monies the individual is awarded at the conclusion of his or her lawsuit if the judge or jury makes findings in his or her favor. The amount of the award is based on several different categories:
- Backpay. The damages, or money, the plaintiff is awarded may include "backpay"-the salary or pay he or she would have received if the discrimination had not occurred. Backpay can be in the form of commissions and salary increases as a result of a promotion that did not occur or job loss. Backpay can also include bonuses or other incentives that the employee would have received if there had been no discrimination.
- Punitive Damages. The individual may also recover punitive damages for intentional discriminatory actions-actions that the employer knew were discriminatory yet did anyway. Punitive damages are awarded to the plaintiff to "punish" the offender and deter future biased conduct. Punitive damages are typically based on the employer's earnings. The company that has consistently and intentionally refused to promote women may have to pay punitive damages calculated as a percentage of its gross yearly earnings. In a billion dollar company, an award based on 1 percent of earnings would be huge.
- Emotional Distress. Damages for emotional distress are also available. For instance, the older man whose sales route was decreased, experienced humiliation at work, suffered from depression and other medical infirmities as a direct result of age discrimination may be able to prove emotional distress so extreme that he will be awarded an amount of money to compensate for his distress. Medical expenses will also be awarded.
SIDEBAR: In all cases, lawyer fees are typically awarded to the prevailing plaintiff irrespective of the amount of the award. The defending company does not recover its attorney's fee should the plaintiff fail in his or her lawsuit.
What is binding arbitration and how does it apply to civil rights actions?
Some employment agreements prohibit lawsuits based on employment issues and require employees to "try" the dispute before an arbitrator in an arbitration hearing. Binding arbitration means the employee cannot use the court system to resolve the dispute; he or she must abide by the final decision of the arbitrator under the terms of his or her contract.
TIP: If you can amend your employment contract to allow for lawsuits in certain instances, make the changes and have the employer's representative initial them. For instance, you can try to include a provision that prohibits binding arbitration in matters of sexual and racial harassment.
TIP: If you are stuck with binding arbitration, try to include a provision that allows you to veto an arbitrator. Typically, arbitrators are picked solely by the employer and have ties to business interests rather than employee rights.
TIP: Arbitration clauses in contracts with national employers require the hearing to be held at the place most convenient to company headquarters. The employee must bear the expense of traveling to the distant location. Again, if it is possible, change the "jurisdiction" of the hearing to a closer location-even a regional office-attempt to make the change in the contract before you sign it.