According to a November 29, 2011 article in the National Law Journal, EEOC commissioners have reported that awards for pain and suffering have reached an all-time high. Ten years ago, the average award was $67,484, whereas in 2011, the average award was $106,000.
Awards for pain and suffering, typically called “compensatory damages,” can be granted to the complaining party who proves that he or she was the victim of unlawful discrimination. The complainant must then demonstrate, through witnesses and documents, the degree of pain and suffering. For example, the individual may have suffered from depression, insomnia, stomach troubles, and other stress-related conditions. Typically, treating doctors, spouses and friends can testify as to how the individual changed in behavior as a result of the discriminatory treatment. The award is based on the amount of pain and suffering that is proven, not on the gravity of the discriminatory conduct at issue in the underlying case.
Many persons embarking on an EEO case imagine that millions of dollars may be awaiting at the end of a hard fought victorious case. This is not true, however. When Congress acted, in 1991, to authorize prevailing plaintiffs to be eligible for compensatory damages in cases brought under the Civil Rights Act of 1964, they set limits on the amount of compensatory damages a plaintiff may be awarded. The maximum amount is $300,000, which can be awarded if the losing employer has 500 or more employees. For employers of more than 200 employees, the maximum award is $300,000. For employers of more than 100 employees, the maximum amount is $100,000. For employers of more than 50 employees, the maximum amount is $50,000.
These caps come as a surprise to some prevailing parties, such as the plaintiff in a case handled by this firm several years ago, Johnson v. West. The jury awarded the plaintiff $3 million, but by law the judge had no choice but to reduce it to the maximum available, $300,00. Fortunately, other relief in the case, including back pay, front pay, and attorney fees brought the total award close to the amount awarded by the jury.
Notwithstanding the compensatory damages cap, other monies may be awarded to victims of discrimination, including back pay, front pay, attorney fees, and the monetary value of lost benefits. Punitive damages are available to employees of private sector employers only, and are limited to cases where the “employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an aggrieved individual.” Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999). These damages are capped according to the size of the employer and are the same as those listed above.
Friday, December 9, 2011
Wednesday, November 2, 2011
The large number of security clearances today can be attributed to several factors related to the consequences of the terrorist attacks on 9-11: the surge in military and intelligence spending over the past decade, increased government reliance on cleared contractors, and intensive classification activity that continues today. In addition, many more federal positions require clearances, such as the entire Department of Homeland Security. That department combined a multitude of agencies and positions that had previously been part of other agencies, such as the Departments of Justice, Commerce, State and Interior, including many positions which had not previously required clearances.
Go to http://www.fas.org/sgp/othergov/intel/clearance.pdf for the full Annual Intelligence Authorization Act Report on Security Clearance Determinations for FY 2010.
Think, for example, of positions at the Department of Agriculture and Department of Transportation that deal with regulation of crop-dusters, typically small aircraft used to spray fields to eradicate insects. Notably, right after 9-11, citing national security, the U.S. Federal Aviation Administration extended a short term ban on crop-dusters, a move prompted by FBI concerns of a possible biological or chemical terrorist attack. In addition, no aircraft capable or equipped for agricultural operations was allowed to operate. The ban came amid concerns by the FBI that terrorists might have been plotting to use the seemingly innocuous aircraft for another attack. Although the ban was eventually lifted, positions at both USDA and DOT are concerned with the security implications of crop-dusters, and those positions now require security clearances.
Many people assume, incorrectly, that if a position does not require access to classified information, then no background investigation or clearance is required. This assumption fails to realize that the government uses the security clearance process to vet candidates for a large range of positions that require the person to be trustworthy, such as financial and information technology positions. For example, individuals who have access to data - even “mock” data used to check how an IT system is running - will occupy positions of “public trust” and have to go through the security clearance process.
The fact that occupants of “public trust” positions must be evaluated using the same set of guidelines that are used for those who need access to classified information leads to an interesting anomaly. That is, one area of concern is whether a candidate for a security clearance has relatives in a country whose interests may be inimical to the United States. It is posited, in a tactic that has been called the “hostage scenario,” that malefactors in certain countries (China, Russia, Syria, and North Korea are the top candidates, but by no means the only ones), might target its citizens who have relatives in the U.S. with security clearances, blackmailing the American by threatening the death of the relative if the American does not turn over classified information. Yet this same scenario is applied in deciding whether to grant a security clearance to a recipient of a “public trust” position who has no access to classified information.
By the way, complaints that such tactics discriminate on the basis of national origin fall on deaf ears, because the security clearance process is largely immune from challenges under the civil rights laws.
It is not expected that the number of positions requiring security clearances will be reduced as time passes.
---This BLAWG post is by partner Elizabeth L. Newman.
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