Chapter 21 - Damages and Other Relief

Table of Contents	Treatise	Search	Apps Home
View Legal Apps for iPhone^®/iPad^®	Garland's Digest Treatise on employment discrimination law online since 1997		Sign up for Legal Apps Newsletter
x


Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 21 - Damages and Other Relief Overview 21.100 Damages and Other Relief 21.200 Compensatory damages 21.300 Equitable and injunctive relief 21.400 Punitive and liquidated damages 21.500 Affirmative Action 21.600 Interest 21.700 Contempt 21.800 Consent decrees 21.900 Miscellaneous Detail 21.100 Damages and Other Relief 21.110 Overview 21.111 Excessive verdict 21.111.10 Excessiveness is determined based on size of award after statutory cap is applied 21.112 Lost-chance theory (or multiple plaintiffs claiming denial of same position) 21.113 Standard of review of district court's remedy 21.114 Proximate causation 21.115 Back pay and front pay not available in harassment claims 21.120 Statutory cap 21.121 Statute 21.122 Types of damages excluded from cap 21.122.10 Back pay 21.122.20 Front pay 21.123 General principles 21.123.10 Standard of review on questions involving application of the statutory cap 21.123.20 Constitutionality of statutory cap 21.123.30 Whether cap applies per lawsuit or per claim 21.123.40 Whether the cap is an affirmative defense 21.123.50 Whether number of employees in "current or preceding calendar year" refers to the year of the discriminatory act or the year of the judgment 21.123.60 Where EEOC is the only named plaintiff, but is suing on behalf of several individuals, can the EEOC recover up to the statutory cap for each individual? 21.124 [Reserved] 21.125 [Reserved] 21.126 Application of statutory cap to labor organizations 21.127 Allocating damages between compensatory and punitive to maximize recovery 21.128 Allocating damages between federal and state claims to maximize recovery 21.129 Amendment of pleadings post-verdict to maximize recovery 21.130 Whether certain damages are duplicative 21.131 Punitive damages and liquidated damages 21.132 Damages under federal law and state law 21.133 Front pay and lost future earnings 21.140 Tax issues 21.141 Payroll tax deductions 21.150 Statutory authority for damages and other relief 21.151 ADEA 21.151.10 Compensatory damages not available 21.151.20 Equitable relief available 21.151.30 Liquidated damages available 21.152 ADA 21.153 Equal Pay Act 21.154 42 U.S.C. § 1981 21.155 42 U.S.C. § 1983 21.156 FMLA 21.157 Rehabilitation Act 21.157.10 Section 501 incorporates Title VII remedies 21.157.20 Section 504 incorporates Title VI remedies 21.158 Title VII 21.160 Whether liquidated damages are compensatory or punitive 21.170 Nominal damages 21.171 Judge or jury question 21.180 [Reserved] 21.190 Issues unique to particular statutes 21.191 ADEA - overview 21.192 ADA - overview 21.193 Equal Pay Act - overview 21.194 42 U.S.C. § 1981 - overview 21.195 42 U.S.C. § 1983 - overview 21.196 FMLA - overview 21.197 Rehabilitation Act - overview 21.198 Title VII - overview 21.198.10 Title VII plaintiff entitled to "full relief" 21.198.20 Damages not available if plaintiff can recover under 42 U.S.C. § 1981 [TOP] 21.200 Compensatory damages 21.210 In general 21.211 Availability of compensatory damages 21.211.10 ADEA 21.211.20 ADA 21.211.21 ADA disparate impact actions 21.211.30 Equal Pay Act 21.211.40 42 U.S.C. § 1981 21.211.50 42 U.S.C. § 1983 21.211.60 FMLA 21.211.70 Rehabilitation Act 21.211.80 Title VII 21.211.81 Title VII disparate impact actions 21.211.90 Availability against United States 21.212 Type of harm covered by compensatory damages 21.220 Emotional distress 21.221 Standard for recovery 21.222 Standard of appellate review 21.223 Amount of emotional distress damages 21.223.10 Actionable wrong caused only part of the distress 21.224 No requirement of expert testimony 21.225 Damages for future emotional distress 21.225.10 Whether future emotional distress damages can be awarded where the plaintiff has been reinstated 21.230 [Reserved] 21.240 Tax enhancement damages 21.250 Unrealized stock appreciation 21.260 [Reserved] 21.270 [Reserved] 21.280 [Reserved] 21.290 Other compensatory damages [TOP] 21.300 Equitable and injunctive relief 21.310 In general 21.311 Standard of review 21.312 Judge or jury question 21.312.10 Back pay 21.312.20 Front pay and/or reinstatement 21.312.30 Pension rights 21.312.40 What if parties agree to jury determination? 21.312.50 Judge constrained by jury's findings 21.313 Back pay vs. front pay overview 21.314 Duty to mitigate damages 21.314.10 Burden of proof 21.314.11 Findings of fact reviewed for clear error 21.314.20 Standard for determining failure to mitigate damages 21.314.21 Duty to mitigate applies to front pay as well as back pay 21.314.22 Failure to find work does not establish failure to mitigate 21.314.30 Definition of substantially equivalent work 21.314.31 When is employer relieved of burden of proving substantially equivalent work? 21.314.40 Tolling back pay period if employee leaves subsequent job 21.314.50 Calculation of back pay where a tolling period is involved 21.314.60 Inability to work caused by defendant/employer 21.314.70 Inability to work not caused by defendant/employer 21.314.80 Enrollment in school after unsuccessful job search is not a failure to mitigate 21.314.90 Failure to mitigate does not affect right to reinstatement 21.320 Back pay 21.321 General principles 21.321.10 Standard of review 21.321.20 Purpose of back pay 21.321.21 Presumption of entitlement to back pay 21.321.30 Time period for which back pay is available 21.321.40 Circumstances under which back pay may not be available 21.321.50 "Same action" defense can avoid liability for back pay 21.321.60 "Excess earnings" do not count against back pay award 21.321.70 Hostile work environment plaintiff must show constructive discharge in order to be entitled to back pay 21.322 Inclusion of fringe benefits 21.322.10 Whether recovery of lost medical premiums requires proof that medical expenses were incurred? 21.323 Significance of liquidated damages award 21.324 Lost overtime as back pay 21.330 Front pay 21.331 General principles 21.331.10 Standard of review 21.331.20 Definition or purpose of front pay 21.332 Instatement or reinstatement is preferred over front pay 21.332.10 Standard for determining that front pay should be awarded in lieu of instatement or reinstatement 21.333 Reinstatement and front pay combined 21.334 Consideration of plaintiff's misconduct 21.335 Calculation of amount of front pay 21.335.10 Other damages offsetting need for front pay 21.335.20 Amount of front pay is always speculative 21.335.30 Consideration of employee's work history 21.335.40 Consideration of employer's post-verdict conduct 21.335.50 Consideration of employee's efforts to mitigate damages 21.336 Inclusion of fringe benefits 21.337 Significance of fact that plaintiff is an employee at will 21.338 Significance of liquidated damages award 21.340 Instatement or reinstatement 21.341 Standard of review 21.342 General factors to consider 21.343 What if position no longer exists? 21.344 Co-worker hostility 21.350 Promotion 21.360 Preliminary injunction 21.361 Standard for preliminary injunctive relief 21.362 Standard for preliminary injunctive relief where the EEOC is the movant 21.363 Standard for irreparable harm 21.370 Permanent injunction 21.371 General principles 21.372 Relief against states under ADEA 21.380 Other equitable relief 21.381 Expungement of records [TOP] 21.400 Punitive and liquidated damages 21.410 Statutes allowing punitive or liquidated damages 21.411 ADEA 21.412 ADA 21.413 Equal Pay Act 21.414 42 U.S.C. § 1981 21.415 42 U.S.C. § 1983 21.416 FMLA 21.417 Rehabilitation Act 21.417.10 Section 501 of Rehabilitation Act 21.417.20 Section 504 of Rehabilitation Act 21.418 Title VII 21.419 [Reserved] 21.420 General principles 21.421 Jury discretion 21.422 Availability against local government 21.422.10 ADEA 21.422.20 ADA 21.422.30 Equal Pay Act 21.422.40 42 U.S.C. § 1981 21.422.50 42 U.S.C. § 1983 21.422.60 FMLA 21.422.70 Rehabilitation Act 21.422.80 Title VII 21.423 Availability against federal government 21.423.10 Availability against U.S. Postal Service 21.424 Requirement of award of compensatory or nominal damages 21.425 Burden of proof 21.426 Standard of review 21.427 Punitive damages should only be awarded to plaintiff who directly suffered the conduct supporting the award 21.430 Title VII and ADA standard for awarding punitive damages 21.431 Title VII and ADA statute 21.432 Kolstad overview 21.433 Conduct warranting punitive damages 21.433.10 "Malice or reckless indifference" defined 21.433.20 Intentional discrimination may not support punitive damage award in some circumstances 21.434 Kolstad's four bases for employer liability 21.435 Agent in managerial capacity acting within scope of employment 21.435.10 "Managerial capacity" defined 21.435.20 "Scope of employment" defined 21.435.30 Employer liability for harassment 21.435.40 Defense of good-faith efforts by employer 21.435.41 Good-faith efforts by employer - burden of proof on this issue 21.435.42 May employer introduce evidence of remedial measures taken after plaintiff has filed an EEOC charge or a lawsuit? 21.435.43 Advice of counsel defense 21.436 Kolstad's other three bases 21.436.10 Employer authorized the doing and the manner of the act 21.436.20 Agent was unfit and employer was reckless in employing him 21.436.30 Employer or managerial agent ratified or approved the act 21.437 Cases addressing Title VII and ADA standard 21.438 Miscellaneous issues 21.438.10 Employee's failure to follow employer's complaint procedures does not bar recovery of punitive damages 21.438.20 Supervisor's knowledge of harassment not imputed to company where supervisor is harasser 21.440 42 U.S.C. § 1983 standard for awarding punitive damages 21.450 Excessiveness of award 21.451 Whether award violates due process? 21.451.10 Standard of review 21.451.20 How does statutory cap affect analysis of ratio of punitive to compensatory damages? 21.451.30 Title VII's cap as factor to consider on issue of excessiveness of punitive damages award under 42 U.S.C. § 1981 21.452 Whether award violates common law standard of excessiveness 21.452.10 Standard of review 21.452.20 Consideration of whether payment will come from pocket of the individual 21.452.30 Review of case law 21.460 Liquidated damages under the ADEA 21.461 Statutory authority 21.462 Standard for recovery 21.462.10 Explanation of "willfulness" 21.462.20 Issue of willfulness is jury question 21.462.30 Finding of willfulness mandates an award of liquidated damages 21.463 Damages subject to mandatory doubling 21.464 Availability against local government 21.465 Availability against federal government 21.470 Liquidated damages under the Equal Pay Act 21.471 Statutory authority 21.472 Standard for recovery 21.472.10 Explanation of "willfulness" [TOP] 21.500 Affirmative action 21.600 Interest 21.610 Prejudgment interest 21.611 Discretion of trial court 21.611.10 Rate of interest 21.611.20 Calculation of interest 21.612 Past injuries (backpay and emotional distress) 21.613 Future injuries (front pay and emotional distress) 21.614 No sovereign immunity from prejudgment interest 21.615 Particular anti-discrimination laws 21.615.10 ADEA 21.615.11 Interest on liquidated damages 21.620 Post judgment interest 21.621 Interest on attorney's fees [TOP] 21.700 Contempt 21.710 Civil contempt 21.720 Criminal contempt [TOP] 21.800 Consent decrees 21.810 Standard of review 21.820 District court's unilateral extension of consent decree 21.830 Termination of consent decree [TOP] 21.900 Miscellaneous 21.910 Duty to mitigate damages 21.920 Collateral source rule 21.921 Pension benefits 21.922 Social Security benefits 21.923 Unemployment benefits 21.924 Workers' compensation benefits 21.930 Calculation of damages 21.931 Discount to present value 21.932 After-acquired evidence 21.940 Additur 21.950 Remittitur and/or excessive damages analysis 21.951 Standard of review 21.952 Should statutory cap be a factor in the analysis so that only the most egregious cases are awarded the maximum under the cap? 21.953 Comparison to awards in other cases 21.960 Offer of judgment 21.970 [Reserved] 21.980 No remedy available 21.990 Collection of judgment [TOP]


Table of Contents	Treatise	Contact Us	Privacy
© 2011 Garland's Digest Apple, the Apple logo, iPad, iPhone, iTouch, and iTunes are trademarks of Apple Inc., registered in the U.S. and other countries.

, iPad, iPhone, iTouch, and iTunes are trademarks of Apple Inc., registered in the U.S. and other countries.