Considerations to Make When Calculating Damages

After looking at various EEOC recommendations and guidelines, there are about 10 factors I’d recommend you consider when it comes to calculating damages to seek against an employer. Today, I will list the first 5 factors:

1. The degree of egregiousness and nature of your employer’s (coworker’s, supervisor’s, etc.) conduct should be considered.

When you think of egregious behavior, think of what the EEOC refers to as behavior that is “shocking” or “offensive to the conscience.” Egregious behavior is outlandish/extreme and unconscionable.

For instance, a coworker throwing a make-shift noose around a Black employee’s neck and HR dismissing this as “horseplay.”

Or, a Black worker being told, per the EEOC example, that only a certain number of Black workers could work in a store because when too many Black people get together “they get arrogant.”

Egregious behavior should be considered, when evaluating damages.

2. The nature, extent, and severity of the harm you suffered should be considered.

For instance, if you were discriminated against and subjected to a hostile work environment from a wide range of higher-ups in management. During that time you were demoted, stripped of your assignments, forced to take a pay cut, humiliated in front of coworkers and clients, etc.

The nature of the harm suffered, the seriousness of the harm, and the level/scope of the harm are key factors.

3. The duration of the discriminatory conduct should be considered.

The longer you were subjected to discriminatory behavior, the more liability may be relevant to your case.

4. The existence and frequency of similar past discriminatory conduct by your employer should be considered.

Are you aware of past or current employees, who were subjected to similar discriminatory behavior? If so, make a list and speak to these individuals to find out details that will show a potentially systemic problem at your company (discriminatory behavior at your place of employment may be an official policy). Document everything you can find out. Ask around discreetly. Try to find out if there were past complaints or lawsuits filed with attorneys or investigations conducted by an external investigatory agency. People talk! Someone will likely know about such cases and may be all too willing to tell you about them.

5. Evidence that your employer planned and/or attempted to conceal or cover-up the discriminatory practices or conduct is relevant.

Did your employer try to come up with pretexts (racially neutral motives) to cover up the racism in your workplace and any actions taken against you?

For instance, did your employer get staff to lie about you and make false statements about your work or attitude? Did you employer give you a malicious and false performance evaluation to justify negative employments actions that you were already subjected to? Did your employer give you a malicious and fraudulent performance evaluation in order to justify denying you a promotion that you were due for? Did your employer create new policies or procedures to cover up their actions? Did items turn up missing from your personnel file or was your personnel file destroyed?

Look for evidence that shows intentional malice (planning) and actions that show concealment or a cover-up.

Tomorrow, there will be 5 more factors to consider.

In the meantime, you can also check out this link: p://www.eeoc.gov/policy/docs/damages.html.