There are three main terms that are used to describe retaliation according to the Equal Employment Opportunity Commission (EEOC). Retaliation happens when a labor organization, employment agency or an employer takes a severe action directed against an individual who is covered because the individual is engaged in a protected activity.
Some examples of activities which are protected include:
- Complaining openly about discrimination against oneself or others
- Threatening to file discrimination charges
- Picketing to oppose discrimination
- Refusing to comply with discriminatory directions/orders
Over the past years, the number of charges filed with the EOCC concerning retaliation has more than tripled now representing more than 1/3 of all charges filed to the Commission. By 2015 the number of retaliation claims set a new record numbering 38,000 claims filed accounting for 42.8%. This was the fourth year in a row retaliation claims were the leading reason for discrimination claims.
The monetary benefits from these cases amounted to a whopping $140.5 million, not including additional funds awarded through litigation. This is among the reasons for the increase in the number of these lawsuits. Jury verdict research shows an approximately 60% chance of a jury giving the plaintiff a favorable verdict when a claim is asserted.
This together with the realization by employees that they can sue their employers while still employed and the multiple states and federal statutory schemes to protect employees reduce their risk of lost earnings making it easier to sue.
What Can Be Recovered By Retaliation?
Before a case for retaliation is presented before the court it is first filed with the EOCC. If the Commission is unable to resolve the dispute a right-to-sue letter is granted which enables the employee to file a lawsuit in court.
The EOCC charge or the lawsuit against the employer seeks all damages’ i.e. the loss suffered as a direct result of the employers’ retaliatory act. There are a number of damages an employee may be entitled to in a retaliation case.
Lost Pay — If the retaliation charges are asserted the employee can recover lost wages also called all back pay and the wages they will continue to lose also known as all front pay.
Lost Benefits — If the employee has lost any benefits such as health insurance or bonuses as a result of the retaliation they may be able to recover the value of those.
Pain and Anguish — This is usually left to the jury to decide the amount to award. There is no specific dollar figure attached to it
Punitive Damages — These are for the sole purpose of punishing the employer. They require a high standard of proof than proving the retaliation itself and is also solely up to the jury to decide the amount.
Lawyers’ Fees — The court may require your employer to pay your attorneys’ fees. If the sum awarded by the court is not enough the attorney will be paid out of the total award.
Jury Awards In The Recent Past In Retaliation Lawsuits
The recent awards and settlements highlight the potential risks associated with retaliation lawsuits. A jury in Iowa recently awarded $80.2 million dollars in punitive damages and compensatory damages worth $527,872 to a manager who claimed she was a victim of gender discrimination and retaliated against after she complained about the discrimination.
Another jury in Massachusetts gave a $4 million award to an immigrant security guard from Russia after he fired for complaining about national origin discrimination. In California, a jury awarded punitive damages amounting to $40 million to an African-American employee who claimed he was denied a promotion because of retaliation for previously complaining about race discrimination.
One of U.S.’s largest lettuce producers settled a lawsuit brought by the EEOC retaliation for $1.9 million for allowing sexual harassment of their female employees and retaliating when they complained of the discrimination.
In 2015 a Californian worker was given $2.8 million by the jury on his claim that he was retaliated against due to the previous discrimination lawsuit he had brought four years before, this was despite him not being fired.
Many similar retaliation claims, especially in states where punitive damages are allowed, settle for over $500,000 on mediation. This is because punitive damages brought are usually based on owners’ or managers’ adverse statements on claim filing or on employees’ compensation.
The amount of settlement awarded usually depends on the plaintiffs’ ability to prove punitive damage and to assert the retaliation.