Legal Remedies for Harassment in the Workplace

In addition to what an employer can/should do to respond to harassment in the workplace, it is also important to understand the types of damages ("remedies" or "relief") that can be awarded in litigation against an employer where illegal harassment is proven. As a starting place, the federal Equal

Employment Opportunity Commission and most state agencies are authorized to seek broad relief on behalf of aggrieved employees. The relief may include, for example, compensation for lost wages and benefits, front pay, compensatory damages, hiring, reinstatement or promotion, fines, or mandatory changes in an employer's policies or practices. And this is just a partial list. If a plaintiff proves that an employer retaliated against an employee for reporting harassment or participating in harassment investigations, the scope of the possible remedies is even broader.

Under Title VII of the Civil Rights Act of 1964, a federal antidiscrimination law that applies to most private employers, the damages awards were generally limited to back pay and injunctive relief (such as an order requiring an employer to cease and desist from continuing an unlawful practice). Compensatory damages and punitive damages generally were not available. With the passage of the Civil Rights Act of 1991 (CRA) came an expansion of remedies that was designed to meet the twin goals of the law: to deter discrimination and harassment and to compensate the victim. Under Title VII, as amended by the CRA, the remedies available (as of January 2006) may include:

• Back pay
• Hiring, promotion, or reinstatement
• Front pay
• Other actions that will make the victim "whole" (put the victim in the condition he/she would have been in but for the discrimination)
• An award of attorneys' fees, expert witness fees, and/or court costs
• Injunctive relief ordering that certain conduct be stopped or requiring changes to policies or practices
• Compensatory damages for future pecuniary loss, emotional pain and suffering, mental anguish, and other non-pecuniary losses*
• Punitive damages*

*Under the CRA, compensatory and punitive damages are subject to certain maximum amounts ("caps"), based on the size of the employer.

The remedies under most states' discrimination laws are just as broad as federal law and, in some cases, provide additional relief. For example, under the Fair Employment and Housing Act in California, an employee who has been discriminated against or harassed is entitled to compensatory damages (including damages for emotional distress), punitive damages, attorneys' fees, and expert witness fees. Specifically, the possible remedies for employment discrimination in California include:

• Back pay
• Hiring, promotion, or reinstatement
• Out-of-pocket expenses
• Front pay
• Injunctive relief ordering that certain conduct be stopped or requiring changes to policies or practices
• Imposition of additional training requirements
• Actual and compensatory damages for future pecuniary loss, emotional pain and suffering, mental anguish, and other non-pecuniary losses
• An award of attorneys' fees, expert witness fees, and/or court costs
• Punitive damages

Additionally, at the agency stage of the complaint process, many states' laws authorize the agency that is charged with enforcing the employment discrimination laws to impose administrative fines against private employers. The amount of the fines will vary by state but can be as high as treble (triple) damages. For example, in California (as of January 2006), the fines are combined with any damages awarded for emotional distress and cannot exceed $150,000 per aggrieved person per employer. And if the individual pursues his or her case in a private lawsuit against the employer, the remedies are identical to the relief the agency can get, with two important exceptions: there is no limit on the amount of emotional distress damages, and unlimited punitive damages may be awarded instead of administrative fines.

The relief awarded to a plaintiff can also be broader than what is authorized under the discrimination laws. That's because many lawsuits that allege harassment or discrimination also contain other claims against the employer, each giving rise to their own specific remedies. For example, in a case that alleges harassment, it is not uncommon for the plaintiff to include separately stated claims for intentional infliction of emotional distress, assault, battery, false imprisonment, violation of the right to privacy, defamation, etc. While the plaintiff will not necessarily prevail on all the claims, it only takes success in one of them for there to be a broader right to recover damages not subject to any limitations that may apply under specific discrimination laws.

The potential expense to employers of being found liable for discrimination or harassment can be very high. And when considered along with the non-monetary costs (such as injury to reputation, low employee morale, loss of valuable employees and/or clients, time spent defending against the cases, decrease in productivity, etc.), the true costs are not really capable of being estimated. Therefore, preventing and eliminating harassment and discrimination is the best course of action for employers and employees alike. Creating a workplace built on respect and professional behavior is a benefit to everyone.

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Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.

Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.