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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.

MONETARY DAMAGES

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LIQUIDATED DAMAGES

Liquidated damages (sometimes called “double damages”) are statutory damages that may awarded under certain federal laws including the Fair Labor Standards Act, the Equal Pay Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. These statutes provided for the recovery of up to twice the amount of unpaid wages in lieu of compensatory or punitive damages, and have been described by some courts as a form of punitive damages. Bailey v. Container Corp. of America, 660 F.Supp. 1048, 1052 (S.D. Ohio 1986). Liquidated damages are not recoverable under the Ohio Minimum Fair Wage Standards Act. R.C. § 4111.10.

INJUNCTIVE AND AFFIRMATIVE RELIEF

Injunctive, declaratory, and affirmative relief are equitable remedies. Statutes permitting these equitable remedies include the Employee Retirement Income Security Act, Title VII, the Americans with Disabilities Act, the Rehabilitation Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Uniform Services Employment and Reemployment Rights Act, and R.C. § 4112.99. Injunctions may be granted to prohibit continued discriminatory employment practices, and include equitable remedies such as reinstatement and promotion in order to make the employee whole. Howe v. City of Akron, 801 F.3d 718, 754 (6th Cir. 2015). Examples of specific, make-whole equitable remedies include hiring, reinstatement, reasonable accommodation, transfer, promotion, retroactive seniority, tenure, restoration of benefits, wage or salary adjustment, expungement of adverse information from personnel files, and letters of commendation.

ATTORNEY FEES

Many federal statutes provide for the award of reasonable attorney fees to a prevailing employee, including Title VII, the ADEA, the EPA, the FLSA, the ADA, ERISA, the FMLA, 42 U.S.C. § 1988, and numerous federal whistleblowing laws. Under Ohio law, statutes permitting the recovery of attorney fees include R.C. § 4111.10 (minimum wage and overtime), R.C. § 4111.17 (equal pay), R.C. § 4113.52 (whistleblowing), and R.C. § 4112.14 (age discrimination). However, attorney fees cannot be recovered for R.C. § 4112.99 discrimination claims unless punitive damages are awarded. Griffin v. Lamberjack, 96 Ohio App.3d 257, 266 (1994).

STATUTORY AND COMMON LAW LIMITATIONS ON DAMAGES

There are many statutory and common law limitations on the recovery of damages in employment cases. For example, the only damages recoverable under the FMLA and EPA, in addition to economic damages, are liquidated damages and attorney fees. Under Title VII, the amount of compensatory damages that can be recovered depends on the size of the employer: (1) $50,000 for employers of 15 to 100 employees; (2) $100,000 for employers of 101 to 200 employees; (3) $200,000 for employers of 201 to 500 employees; and (4) $300,000 for employers with 501 or more employees. 42 U.S.C. § 1981a (b)(3). The cap on damages recoverable under Title VII does not apply to an award of front pay, which is not compensatory damages.

Under Ohio law, while there is no limitation on the amount of actual lost wages that can be awarded (subject to the duty to mitigate damages and collateral source rules), an award of compensatory (non-economic) damages is limited to the greater of three times the amount of lost wages or $250,000. R.C. § 2315.18. The amount of punitive damages that can be awarded under Ohio law is not more than two times the amount of compensatory damages awarded for large employers, and for small employers (less than one hundred employees), two times the amount of compensatory damages, not to exceed 10% of the employers net worth or $350,000, whichever is less. R.C. § 2315.21. Damages for violation of R.C. § 4111.10 (Ohio minimum wage and overtime) are limited to the amount of unpaid wages and attorney fees.