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Damages (And Limitations of Damages) Generally Available in Employment Cases

The general categories of damages available in employment cases are specified by statute or common law (court decisions), depending on the type of employment claim. Typically, the types of statutory and common law employment damages that can be awarded include monetary damages (economic loss such as back pay, front pay, and benefits), compensatory and punitive damages. Compensatory damages can include payment for emotional distress, pain and suffering, and harm to reputation. Depending on the type of claim, other remedies include liquidated damages, injunctive relief and affirmative relief (such as reinstatement, accommodations. or retroactive seniority). Some statutes provide for the award of attorney fees, and attorney fees may also be available when punitive damages are awarded. It is important to note that statutory and common law limitations on damages can substantially reduce the amount of damages that can be awarded.


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Sources of income that are considered to be from collateral sources will normally not reduce the amount of otherwise allowable back and / or front pay. Hamlin v. Charter Tp. of Flint, 165 F.3d 426, 422-33 (6th Cir. 1999). The general policy of the courts is to prevent “double recovery.” E.E.O.C. Inc. v. Waffle House, 534 U.S. 279, 297 (2002). Whether income from other sources is considered non-collateral and will be deducted from back pay awards often depends upon the statutory claims involved in the case. Examples include State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn. (2005), 105 Ohio St.2d 476, 482-83 (back pay award reduced by SERS retirement benefits but not social security benefits); Hawley v. Dresser Industries, Inc., 958 F.2d 720, 726 (6th Cir. 1992) (deducting pension benefits from back pay award in ADEA case); Hance v. Norfork Southern Ry. Co., 571 F.3d 511, 520 (6th Cir. 2009) (earnings from a second job providing a supplemental income do not offset the amount of back pay owed); Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983) (unemployment compensation benefits should not be deducted from Title VII back pay awards); Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1171 (6th Cir. 1996) (no reduction for unemployment compensation and workers compensation in Title VII back pay awards); Ohio Civil Rights Commission v. David Richard Ingram, D.C., Inc. (1994), 69 Ohio St.3d 89, 92 (unemployment compensation benefits not interim earnings to be deducted from back pay award pursuant to R.C. § 4112.05(G)); Merkel v. Scovill, Inc., 570 F.Supp. 141, 148 (S.D. Ohio 1983) (deducting unemployment compensation benefits from ADEA claim is necessary to prevent double recovery); State ex rel. Guerreo v. Ferguson (1981), 68 Ohio St.2d 6, 7 (back pay award for wrongful exclusion of public employee must be reduced by amount of unemployment compensation).


Front pay (payment of future lost wages) is an equitable remedy that is primarily awarded in discrimination cases when reinstatement is not feasible. Worrell v. Multipress, Inc., 45 Ohio St.3d 241, 242 (1989). Front pay may be awarded as compensation for lost earnings and benefits that will accrue during the time it is expected to take to find new employment in a position of equal or similar status. Worrell, supra. The factors considered in determining the amount of front pay are the age of the employee, the reasonable amount of time it is anticipated the employee will need to obtain a comparable position, the employee’s salary and other benefits such as bonuses and vacation pay, expenses the employee will incur in seeking new employment, and the replacement value of fringe benefits. Worrell, supra. When front pay is appropriate, pension benefits an employee would be expected to receive are included. Skalka v. Fernald Environmental Restoration Management Corp., 178 F.3d 414, 425 (6th Cir. 1999). When calculating front pay, the amount of front pay must be reduced to present value. Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 679 (6th Cir. 2008). Common law remedies may also include the award of front pay, depending on the circumstances of the case.


Compensatory damages may be awarded for economic injuries, such as lost wages, and non-economic injuries, such as emotional distress, pain and suffering, loss of enjoyment of life, or harm to reputation that is caused by the employer’s unlawful conduct. Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073, 1082 (6th Cir. 1999). Compensatory damages are available for common law causes of action including estoppel, quasi contract, negligent misrepresentation, negligent hiring, negligent retention, common law sexual harassment, intentional infliction of emotional distress, invasion of privacy, defamation, and violation of public policy. Many federal and state statutes, including Title VII, the ADA, the Rehabilitation Act, the USERRA, and 42 U.S.C. §§ 1981 and 1983, and R.C. Ch. 4112, R.C. § 4111.17, and R.C. § 4113.15 permit recovery of compensatory damages.

An award of damages for emotional distress must be supported by evidence of genuine injury. The employee is not required to produce medical evidence to prove emotional distress, though the employee’s relevant medical records may be discoverable. Lagenfeld v. Armstrong World Industries, Inc., 299 F.R.D. 547, 553 (S.D. Ohio 2014). However, the burden is on the employee to prove that the employer’s wrongful conduct was the proximate cause of the emotional distress or other harm. Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (S.D. Ohio, 2009). It is also important to distinguish a claim for emotional distress from the common law claim of intentional infliction of emotional distress, which must be proved by supporting testimony from other witnesses or medical documentation. Buckman-Peirson v. Brannon, 159 Ohio App.3d 12, 21-22 (2nd Dist. 2004). Certain statutory causes of action, such as the FMLA and ERISA do not permit recovery of compensatory damages for emotional distress. Rogers v. AC Humco Corp., 56 F.Supp.2d 972, 979 (W.D. Tenn. 1999) (FMLA) Longaberger v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009).


Certain federal statutes authorize punitive damages for employment discrimination. See, Title VII, 42 U.S.C. § 1981(a). Under Ohio law, R.C. § 4112.99 authorizes punitive damages for unlawful employment discrimination. Rice v. Certainteed Corporation (1999), 84 Ohio St.3d 417, 419. In Ohio, punitive damages may also be awarded for certain common law causes of action such as intentional infliction of emotional distress, invasion of privacy, breach of promise (promissory estoppel), and defamation, but not for breach of contract claims. Crawford v. ITT Consumer Financial Corp., 653 F.Supp. 1184, 1192 (S.D. Ohio 1982). Before punitive damages can be awarded under Ohio law, there must be proof by clear and convincing evidence that the actions of the employer demonstrate malice, or aggravated or egregious fraud. R.C. § 2315.21. Malice is conduct that is characterized by hatred, ill will or the spirit of revenge, or the conscious disregard for the rights and safety of others. Preston v. Murry, 32 Ohio St.3d 334 (1987).

Evidence of malice will also support an award of punitive damages under federal statutes authorizing punitive damages. However, under federal statutes such as Title VII, punitive damages can also be proven by showing that the defendant engaged in the discriminatory conduct with the knowledge that it might violate federal anti-discrimination law, and proof that the employer engaged in egregious or outrageous acts is not necessary. Kolstad v. American Dental Ass’n., 527 U.S. 526, 536-40 (1999); see, 42 U.S.C. §§ 1981 and 1983 (limiting the award of punitive damages to situations when the employer is found to discriminate “with malice or with reckless indifference.” 42 U.S.C. § 1981a(b). Other federal statutes permitting awards of punitive damages for discrimination cases include the Americans with Disabilities Act and the Federal Railroad Safety Act.