How much is my employment discrimination case worth in NYC? | Liszka Law Firm

How Much is My Employment Discrimination Case Worth in NYC?

In this article, we give you the tools to answer the question, how much is my employment discrimination case worth in NYC?

The worth of your discrimination case depending on a lot of factors. Some include:

  • The length of your employment, and how much you made.
  • How long you intended to work at your job.
  • How severe or pervasive the discrimination or harassment was.
  • Whether your employer took retaliatory actions against you.
  • How well your employer knew of the discrimination or harassment
  • Whether your employer took any action to prevent the discrimination or harassment.
  • Whether you were employed inside NYC or outside NYC.
  • How many employees the employer has.
  • Whether you needed medical or psychological counseling.

The reason these questions matter is because courts base settlement amounts or awards on length of employment and how much you made. They also consider how long you intended to stay with the employer absent the discrimination or harassment. Paramount to the case is also the severity or frequency of the discrimination or harassment, and if the employer didn’t directly participate in it, whether the employer knew or should have known about it. Because the NYC laws are tougher on employers than the Federal laws, it also matters where you were employed and how many employees worked with you. Lastly, courts are more inclined to award bigger amounts if the employee can show s/he needed medical attention or counseling as a result of the discrimination or harassment.

The types of damages available are:

Compensatory Damages

Under federal law, Title VII and the ADA allows employees in cases involving intentional discrimination to recover compensation.
In order to recover compensatory damages, the plaintiff must submit proof of actual non-economic injuries, such as emotional distress, pain and suffering, or harm to reputation, caused by the employer’s unlawful conduct. Damages for emotional distress must be supported by competent evidence of genuine injury, but medical evidence is not necessary. The employees’s testimony may be sufficient so long as she offers specific factsas to the nature of her claimed emotional distress and as to the causal connection to the employer’s alleged violation.

Under federal law, there are caps on the amount of  compensatory damages that may be awarded to the plaintiff for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. Under New York City Human Rights laws and New York State Human Rights laws, their are no caps, permitting unlimited compensatory damages.

Back Pay

Back pay is available under Title VII, the ADA, the ADEA, the EPA, the Rehabilitation Act, the USERRA, and Sections 1981 and 1983. Once the employee establishes that unlawful discrimination caused her loss, she is entitled to back pay. The employee bears the burden of establishing the value of her lost salary, but the employee is not required to establish the exact dollar amount. The employee may also recover overtime, shift differentials, commissions, tips, cost-of-living increases, merit increases, and raises due to promotion by showing that she would have earned those items absent discrimination. The back pay award must not be speculative, but rather must be based on reasonable expectations. The award of back pay may be denied if the employee would have been separated from her job anyway in the absence of the alleged discrimination.

Back Pay Time Frames

Subject to statutory limits, back-pay liability begins at the point of the employer’s illegal act causing the employee to suffer an economic injury. Title VII precludes the recovery of back-pay damages suffered more than two years before the employee filed a charge of discrimination with the EEOC unless she alleged a pattern-or-practice claim. Back pay is generally awarded from the occurrence of the alleged discrimination until the harm suffered by the employee is redressed. However, under Sections 1981 and 1983, a back-pay award is not subject to the two-year limitation applicable under Title VII but subject to the appropriate statute of limitations under state law.

The back-pay accrual period ends on either the date that judgment is rendered or the date that the jury returns its verdict. But the employer may truncate the back-pay accrual period by demonstrating:

  • the employees’s failure to mitigate,
  • the employee’s reemployment,
  • the employee’s refusal of an unconditional offer of reinstatement,
  • after-acquired evidence of the employee’s misconduct or fraud, or
  • shorter average tenure of employees in the employee’s position.

Failing to Mitigate

The plaintiff has an affirmative duty to mitigate lost wages by “us[ing] reasonable diligence” to locate “substantially equivalent” employment. Failure to mitigate damages can reduce or completely cancel out a back pay award.

Fringe Benefits

Similarly, the employee bears the burden of proof for claims for fringe benefits, such as vacation pay, pension and retirement benefits, stock options and bonus plans, savings plan contributions, cafeteria plan benefits, profit-sharing benefits, and medical and life insurance. The employee must demonstrate her entitlement to and the value of such benefits with reasonable certainty. When the employee would have been obligated to pay part of the cost of benefits, that portion of the cost may reduce the back pay award.

Front Pay

Front pay compensates the employee for the future effects of discrimination when reinstatement would be an appropriate, but not feasible remedy or for the estimated length of the interim period before the plaintiff could return to her former position. Although reinstatement is generally preferred, front pay may be awarded in lieu of reinstatement when:

  • no position is available;
  • a subsequent working relationship between the parties would be antagonistic; or
  • the employer has a record of long-term resistance to anti-discrimination efforts.

Punitive Damages

Punitive damages are available for disparate treatment cases under Title VII, the ADA, and Sections 1981 and 1983 when the employer is found to discriminate the plaintiff “with malice or with reckless indifference.”To recover punitive damages, the plaintiff must successfully impute liability to the employer for the alleged unlawful discrimination. Also, the employee need to show that the defendant engaged in discriminatory conduct with the knowledge that it might be in violation of federal anti-discrimination law; the plaintiff need not show that the employer engaged in egregious or outrageous acts. The reasonableness of punitive damage award was determined by considerations of the following factors:

  • degree of reprehensibility of the defendant’s conduct,
  • disparity between harm suffered and damage award, and
  • difference between damages awarded in this case and comparable cases.

Attorneys Fees

Reasonable attorney’s fees are available to a prevailing party under Title VII, the ADEA, the EPA, the ADA, and the Family and Medical Leave Act (“FMLA”)

Pre-judgment Interest

The Supreme Court established a strong presumption that prejudgment interest on back-pay awards should be granted in employment discrimination cases. However, some courts have declined to award prejudgment interest to employees who do not comply with procedural rules to preserve the possibility of recovering prejudgment interest.

Negative Tax Consequences

To receive additional back pay to compensate the increased tax liability of a lump-sum back pay in a single year, an employee will need to prove the amount of increased income tax burden.

Differences Between City, State and Federal Discrimination Laws

ADA/Title VII (Federal)
STATE LAW
NYC CITY LAW
Covered Companies15 or more employees4 or more employees4 or more employees
Economic DamagesLost Salary and Predicted Future losses (front pay)Lost Salary and Predicted Future losses (front pay)Lost Salary and Predicted Future losses (front pay)
Compensatory DamagesAvailable but limited.UnlimitedUnlimited
Punitive DamagesLimitedNot AvailableUnlimited
Legal fees and costsAvailableNot AvailableAvailable

 

If you would like a consultation to discuss whether you have a discrimination case, give Liszka Law Firm at call at 347-762-5131 or info@liszkalaw.com. Be sure not to use your work e-mail.

 

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