5 More Considerations for Calculating Damages

Sorry for the late posting. I was visiting a newborn cousin today.

As promised, here are 5 more factors to consider, when calculating damages against an employer. This is not an exhaustive list. However, these 10 factors will certainly give you a good starting point for evaluating the amount of damages you and/or an attorney may seek in a civil suit. Even if you are represented by an attorney, you should still have an understanding of some of the factors that are weighed in regard to calculating damages.

So, here are factors 6-10:

6. The employer's actions after it was informed of discrimination should be considered. An employer who has notice of discriminatory conduct and fails to take action could incur
punitive damages.

For instance, after an employee complained of discrimination (harassment and/or retaliation), if the employer failed to do anything to prevent or stop continued discrimination, that would be compelling evidence of a tolerance or an encouragement of behavior that violates Federal statutes and could warrant damages. f

7. Proof of threats or deliberate retaliatory action against complaining parties for complaints to management or filing a charge normally will constitute malice.

For instance, if you have evidence that you were threatened financially by a supervisor based on suspicion that you might file or had filed a complaint. This would be compelling evidence, which should be considered for determining damages.

8. Relevant background facts.

Specific employment decisions and issues should not be looked at in isolation. Other information that can shed light on whether the employer’s adverse employment decision was motivated by race includes the employer’s treatment of other employees (or customers, etc.), race-related attitudes, the work environment generally, and the context of the challenged employment decision.

For example, background evidence that an employer has discriminated against African Americans in hiring, pay, or promotions would support an African American employee’s claim that a pattern of mistreatment – e.g., her supervisor undermining her work, ostracizing her, and making snide comments – is actually a pattern of race-based harassment.

The point is that background evidence can help determine the employer’s state of mind and otherwise provide important context. Also, as suggested by the above example, the inquiry into background evidence can reveal other potential violations of the statute.

9. Relevant personnel policies.

An employer’s deviation from an applicable personnel policy, or a past practice, can support an inference of a discriminatory motive.

It would be quite compelling for you to show that your employer ignored or strayed from their personnel policies in regard to you. Or, that your employer deviated from some past practice or standard operating procedure in your case. The question would be raised, what was the motive for the employer taking actions, which contradict there standard practices or actual personnel policies?

10. Comparative treatment evidence.

This is evidence as to whether you were treated the same as, or differently than, similarly situated persons of a different race.

For instance, how were White employees of a similar title, level, pay grade, etc. treated compared to you? Can you show that different and/or lax standards were used to evaluate the skills, education, years of service, etc. in a manner which clearly was set up to benefit White staff. Were White staff promoted despite the fact that they failed to meet the established standards set by the company? Were you denied a promotion based on not meeting standards that didn’t apply to White staff? It’s important to show how you were treated differently.

There will be more information tomorrow on damages.

Source: http://www.eeoc.gov/policy/docs/damages.html