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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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FRONT PAY

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.

COLLATERAL SOURCE RULE

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).