The EEOC’s Approach to Remedies for Discrimination
By Fiona W. Ong - Shawe Rosenthal LLP
September 11, 2019
As I was perusing a recently-released volume of the Equal Employment Opportunity Commission’s quarterly Digest of EEO Law (as I am sadly wont to do – really, I need some new hobbies!), I came across an interesting article, “An Overview of Common Remedies Available in Disparate Treatment Claims of Discrimination.” (Of particular note, while the Digest, as well as the article, covers only federal sector employees, we’d expect the EEOC to take the same position with regard to private sector employees.) The article sets forth the types of remedies sought by the EEOC when it finds that an federal employee or applicant has been subjected to disparate treatment discrimination (meaning that they have been individually targeted). Although the majority of the list is rather routine, it does highlight some rather interesting remedies sought by the EEOC, of which employers should be aware.
The EEOC starts off with the premise that the remedies are intended to make the complainant “whole” by placing him or her “as near as may be” to the position that they would have occupied absent the discrimination. The actual type of relief depends on the circumstances and impact of the discrimination. In addition, the EEOC may seek preventative actions to avoid future discrimination – such as notice to all employees of their rights to be free from discrimination, including the type at issue, as well as training and/or discipline of managers.
With regard to the individual relief, the EEOC sets forth the following list:
• Placement into a Position, where the individual is offered the same or substantially similar position with retroactive seniority, as well as any benefits they would have received (like non-competitive promotions). In order to be substantially similar, the position must have similar duties, responsibilities, and location, within “a reasonable commuting distance. “This last bit is interesting, because what if the original position had a less favorable commuting distance? Isn’t the employee now being made more than whole? That doesn’t seem right or, frankly, legally required. But what is even more interesting is the EEOC’s assertion that when the position in question is already occupied, “bumping the incumbent employee may be a possible remedy for discrimination.” (My emphasis!!! And courts are not typically willing to order bumping, except in unusual circumstances.) According to the EEOC, this is warranted when there is no substantially equivalent position because otherwise the relief would be “unjustly inadequate.” (In my view, this is why front pay and the requirement for complainants to mitigate their damages exist. Bumping seems to presume that complainants bear no responsibility for trying to find other employment and moreover are not able to do so!)
• Back pay, with interest, to restore income that the complainant would have earned from the date of the non-selection or termination to the date that they assume or decline the position. This includes 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, as well as any increased tax liability for the payment (not all courts agree). Although the Commission will deduct workers’ compensation payments from back pay, it flatly states that unemployment compensation may not be deducted (again, not all courts agree). The Commission states that the complainant has the duty to mitigate damages by seeking a substantially similar position.
• Compensatory damages, including both pecuniary and non-pecuniary damages, for harm or suffering experienced as a result of the discrimination. Compensatory damages are not intended to be punitive.
o Pecuniary damages are out-of-pocket expenses, past or future, including those for moving, employment searches, medical or psychiatric treatment, physical therapy, etc. Past expenses should be supported by documentation, such as receipts, records, bills, cancelled checks, and confirmation by other individuals.
o Non-pecuniary damages are related to intangible losses such as emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, etc. Examples of emotional harm includes sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. And it can be manifested physically, such as by ulcers, hair loss and headaches. The EEOC also includes damage to professional reputation or to interpersonal relationships. The EEOC notes that there is no presumption of emotional harm, and there must be proof of the existence, nature, and severity of such harm. Such proof may be established through statements from the complainant or witnesses that describe the physical or behavioral manifestations, duration, and examples of the impact both at work and not at work. According to the EEOC, evidence from a health care provider is not required. The EEOC also speaks directly to pre-existing conditions, noting that deterioration of such a condition because of the discrimination may be attributed to the employer. On the other hand, an employer will not be liable for the portion of emotional harm that is due to other personal difficulties unrelated to the discrimination.
• Non-monetary relief includes various other actions, like cancellation of an unwarranted personnel action and expungement of adverse material relating to the discrimination from the complainant’s records. It can also include providing training, reasonable accommodations, preferential work assignments and overtime scheduling, among other things.
Peculiarly, the EEOC does not address front pay, which is monetary relief available and often awarded in discrimination cases. Perhaps they believe that they can always find a position or substantially similar position for a government employee? In any case, the omission is odd.
In the end, this article is useful for understanding the EEOC’s general approach to damages, and what an employer might expect if the EEOC is negotiating a conciliation agreement for a charge or has chosen to file suit. But some of the positions staked out by the EEOC are rather aggressive, and may not necessarily be upheld by a court. Shocking, I know.