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.