Damages in Massachusetts Employment Discrimination Cases
I am frequently asked to “assess the value” of an employment discrimination case, and I promptly respond that there is no scientific way of doing so. The first hurdle is liability, and that hurdle is so high that an overwhelming majority of claims fought to conclusion end with a decision in favor of the employer. Until that hurdle is cleared, the issue of damages is beside the point.
Nevertheless, for purposes of deciding whether to bring an action or purposes of settlement negotiation, recent history of awards by juries and administrative agencies may be useful.
Economic loss, in the form of lost income, is always an element of the damages. That may include past income losses (back pay) and future losses (front pay). Benefits, the value of which may in fact exceed monetary compensation, should also be taken into account. A forensic economist may be necessary to calculate the present value of lost “fringe benefits.”
A successful plaintiff is also entitled to damages for emotional distress, which includes many potential elements. See The Range of Emotional Distress Compensable under Anti-discrimination Laws, by Robert S. Mantell, Rodgers, Powers & Schwartz, LLP
Broadly speaking, the act of discrimination itself may be presumed to have caused emotional distress, but a distinction seems to exist between what defense counsel and (unfortunately, some judges) call “garden variety emotional distress,” including such things as humiliation, anger and loss of appetite, and psychiatric injury, which generally involves a medical diagnosis and concerning which the services of a forensic psychiatrist may be necessary.
Under certain circumstances, the employer may also be liable for punitive damages. See
Avoiding Punitive Damages in Employment Discrimination Cases: A Practical Guide
Finally, the successful plaintiff may be eligible by an award of attorney’s fees and costs, which could be greater than the underlying damages.