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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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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.


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.


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.


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).