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Discrimination – What Damages Can an Employee Recover?

Discrimination – What Damages Can an Employee Recover?

By Malatesta Law on August 15, 2018

An employee who is subjected to unlawful discrimination is entitled to recover damages for their employer’s illegal conduct under California law. Damages can include economic damages, emotional distress damages, and in certain circumstances, punitive damages.

Economic Damages

Economic damages include both lost past wages and lost future wages.

Lost past wages are those wages that an employee has lost, looking backwards, because of the discrimination they were subjected to.

For example, if an employee was not promoted because he was discriminated against because of his sexuality, then the employee’s lost past wages would include the higher wages he would have received if he had received the promotion. Similarly, if an employee is terminated because of her sex, her lost wages would include the wages she would have received if she had not been unlawfully terminated.

Future lost wages are those wages that the employee would be entitled to in the future if they had not been discriminated against.

For example, if an employee’s employment is terminated because of her disability, the employee can recover the wages she would have earned if she continued to work for her employer. It must be noted however that under California law an employee has a duty to attempt to mitigate their damages.

This means that an employee has an affirmative duty to actively seek new employment – the law does not allow an employee to do nothing and extract greater damages from their employer. An employee’s duty to mitigate their damages however only requires that an employee look for, and accept, substantially similar employment. An unlawfully terminated senior accountant is not required to accept a position as an entry-level retail clerk.

If an employee finds new employment, this will cut-off an employee’s future lost wages.

Nonetheless, if the employee’s new job is different in terms of compensation and/or benefits than their previous position, the employee can recover damages for the difference in compensation and/or benefits between their previous and current positions.

Emotional Distress Damages

Emotional distress damages are those damages that attempt to compensate an employee for the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life an employee has suffered because of an employer’s unlawful discrimination.

Punitive Damages

In California, an employee can recover punitive damages from their employer if the employee proves, by clear and convincing evidence, that their employer was guilty of acting with oppression, fraud or malice. This is a high, but not impossible, standard to meet.

Punitive damages are intended to punish an employer and send a strong message to the employer for its egregious conduct.

There is not a statutory limit to the amount of punitive damages that may be imposed upon an employer. Nonetheless, the amount of punitive damages must be a reasonable amount or they will most likely be struck down or limited by the court.

Posted in: Discrimination