Issue Briefs

Following are excerpts from a recent article by the EEOC summarizing the types of relief it may grant when it upholds a federal employee’s claim of workplace discrimination.

Background

When disparate treatment discrimination is found, the goal of the anti-discrimination laws is to make the complainant “whole.”  Specifically, the relief which is provided must place the complainant “as near as may be” to the position she would have occupied if the discrimination had not occurred. To remedy a finding of discrimination, the Commission will order an agency to provide full relief, including corrective, curative, and preventative actions to ensure that similar violations will not recur. Both employees and applicants for employment are entitled to appropriate relief.

The anti-discrimination statutes generally allow for both monetary relief, such as compensatory damages and back pay, and equitable relief, such as reinstatement, training, or appointment to a position.  The type of relief awarded will depend on the discriminatory action and the effect that the discrimination had on the complainant.  For example, when the Commission or an agency finds that a complainant was discriminated against when she was not selected for a specific position, relief can include an offer of placement into the position or a substantially equivalent position, as well as back pay with interest.  A complainant who was discriminated against when he was issued a letter of counseling would be entitled to have the letter expunged from his personnel records. Both complainants would be entitled to an award of proven pecuniary and non-pecuniary compensatory damages if they raised claims under Title VII or the Rehabilitation Act. Complainants may also be able to recover attorney’s fees and costs.

In addition to relief awarded directly to a complainant, the Commission may order an agency to take preventative actions to ensure that similar discriminatory actions do not occur in the future.  For example, the Commission may order the agency to notify all employees at the facility where the discrimination occurred of their right to be free from unlawful discrimination and provide employees with assurances that the type of discrimination found will not recur. The Commission can also order an agency to provide training for management officials involved in the discrimination, and consider taking disciplinary action against the responsible management officials.

This article provides an in-depth look at several types of individual relief frequently awarded by the Commission to assist stakeholders in understanding the specific elements of such awards.

Placement into a Position

When the Commission finds that a complainant was discriminated against when she was not selected for a position, the Commission may order the agency to offer the complainant the position in question or a substantially similar position, and to apply retroactive seniority for the complainant’s time in the position.  The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location, and that is a reasonable commuting distance, to the position for which the complainant originally applied. The burden is on the agency to establish that the position offered to the complainant is substantially equivalent to the position the complainant was denied.

The Commission recognizes that when a position is occupied by another employee, most often because the other individual was selected over the complainant, bumping the incumbent employee may be a possible remedy for discrimination. The Commission has included bumping of an incumbent in its orders of relief where there is no position available that is substantially equivalent to the position the complainant was discriminatorily denied. In these cases, the Commission has found that bumping of the incumbent was the only adequate remedy, and, in the absence of bumping, the complainant’s relief would be unjustly inadequate.

Back Pay

The purpose of a back pay award is to restore income to the complainant that s/he would have otherwise earned but for the discrimination. When the Commission finds discrimination in cases involving nonselection, the complainant is generally entitled to receive back pay from the date s/he would have entered on duty until the date s/he assumes the position or declines an offer of placement into the position. Complainants are also entitled to receive back pay in cases of discriminatory termination.  Interest on back pay should be included in the calculation of the back pay award.

Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, premium and night pay, transfers, promotions, and privileges of employment to which the complainant would have been entitled but for the discrimination. However, the agency is required to make certain deductions from back pay awards to ensure that a complainant does not receive more in total benefits than s/he would have received in the absence of the discriminatory personnel action. For example, the Commission has stated that the portion of worker’s compensation payments attributable to lost wages should be deducted from gross back pay. The Commission has, however, stated that an agency may not deduct unemployment compensation from a complainant’s back pay award.

The Commission recognizes that precise measurement of back pay cannot always be used to remedy the discrimination. Therefore, the computation of back pay awards inherently involves some speculation. The agency must provide a clear and concise plain language statement of the formulas and methods it used to calculate a complainant’s back pay.

A complainant has a duty to mitigate damages by making a good faith effort to find other employment. An award of back pay therefore generally is reduced by any amount a complainant earned during the applicable period. This means that a complainant must seek a substantially equivalent position. The burden is on the agency, however, to show that the complainant failed in his duty to mitigate. The Commission has generally held that an agency must satisfy a two-pronged test to meet its burden of proof.  The agency must show that the complainant failed to use reasonable care and diligence in seeking a suitable position; and there were suitable positions available for which the complainant was qualified.  The agency does not have to meet the second prong if the complainant does not make an effort to mitigate damages and does not explain the lack of effort.

Compensatory Damages

Compensatory damages are awarded to compensate complainants for harm or suffering due to discriminatory acts or conduct.  Federal employees may seek compensatory damages for discrimination but cannot be awarded punitive damages in the administrative process.  Compensatory damages consist of either pecuniary or non-pecuniary damages.

Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer’s unlawful conduct.  Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses and physical therapy expenses, and other quantifiable out-of-pocket expenses.  Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint.  Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses.  Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.

Non-pecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other such intangible losses that are incurred as a result of the discriminatory conduct.  A finding of discrimination does not carry a presumption of emotional harm.  There must be proof of the existence, nature and severity of the emotional harm.  Emotional harm may include such things as sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress.  The harm may also manifest itself physically, for example: the development of ulcers, hair loss and headaches. Non-pecuniary damages may also be awarded if an individual experiences damage to professional reputation or damage to interpersonal relationships.

The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury, and proof that the harm or injury was caused by the unlawful discrimination. The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency.  The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent’s illegal conduct and the complainant’s injury.

When determining the amount of a compensatory damage awards it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm.  An award of compensatory damages cannot be punitive in nature.  Generally, the method for computing non-pecuniary damages should be based on consideration of the severity, duration and nature of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm, accounting for the present-day value of comparable awards. The Commission also strives to ensure that awards are not monstrously excessive standing alone, nor the result of passion or prejudice.

Non-Monetary Relief

When the Commission finds that a complainant has been subjected to disparate treatment discrimination the Commission can award non-monetary relief.  This can include the cancellation of an unwarranted personnel action, and expungement of adverse material relating to the discrimination from the individual’s records, as well as providing the complainant with reasonable accommodation, training, preferential work assignments, and overtime scheduling, among other things. As with monetary relief, these elements of relief are designed to place the complainant into the position she would have been absent the discrimination.