How do employment attorneys calculate damages in a discrimination case? The quick answer is we don’t, I mean there’s formulas, there’s criteria, and it’s different—I’m going to get into the different kinds of damages, if anyone tells you your case is worth millions I would be leery of that attorney. That worries me because there is a lot of discretion left up to a jury. There’s a lot of discretion left up to a judge. Most discrimination cases are not worth millions. I mean certainly my partner’s have done amazing things; they’ve had multimillion dollar verdicts and set records in New York
State, 15 million dollars actually for Thomas Ricotta, very impressive.
The average employment law case just isn’t worth that much. I don’t really think anyone can tell you what case will be worth that much someday, I mean it’s just not possible and would worry me if that is something that was said to you.
There’s three kinds of damages. You have your economic damages which is the salary you’ve lost, if you weren’t promoted, if your employer fired you for some discriminatory reason or maybe lost overtime. There’s a thousand different ways to lose money in the workplace because of discrimination, sexual harassment, retaliation, being stripped of your vacation pay all of that adds up. But, now it’s going to be offset because if you are receiving unemployment, that’s money you’re being paid because you were fired, so that offsets and subtracted from the amount of damages you’ve lost so far. You have a duty to find another job, so if they fired you, you have to apply for jobs. You have a duty to mitigate. Keep a journal of everything you’re doing trying to find new jobs to prove it.
Listen, I’ve tried to find work, I just can’t, if that’s the case. So, my damages are still running. On the other hand if you do find a job, to some extent that’s going to limit your economic damages because you are working again. It’s just not going to work, if someone discriminates against you and you choose to sit home and do nothing, your economic damages are not going to run forever. It’s not a pass to sit at home and be lazy, it’s just something horrible that happened and you’re suing for it but in the mean time you go on with your life.
Some people there’s certainly things that happen that are so horrible that they can’t and that’s something you can talk with your attorney about. There’s emotional damages. Now this is a pretty sticky issue in this field because everyone comes into my office, they’ve seen the news, they tell me about McDonald’s hot coffee going for millions and this and that. They say things to me like oh, employment discrimination cases are always worth millions, they always go for millions. That’s interesting because
I do this for a living and that’s not the case. I think that’s just a myth people get from the media because what kind of cases get reported on, huge, huge cases. So the impression is well everybody gets millions of dollars in emotional damages. That’s not the case, especially for the state division your emotional damages there’s a good chance to be very minor. In terms like garden variety of emotional damages where there’s soft caps on how much you might actually hope to win in emotional damages without the testimony of a mental health expert or you know extenuating circumstances, things like that. That numbers really up in the air. If anyone tells you, well Iíve seen your case
here and I think itís going to give you thousands in emotional damages. Okay, based on what?
Do you know everything thatís going to happen? How this potential clientís going to testify,
how the therapist is going to come in and testify it doesnít make sense. You canít
value that number at the outset of a case and you canít really value that number until
you get the number from a find or effect, whether thatís an administrative law judge
in the state division or a jury it doesnít matter. Until they give you a number for emotional
damages you do not know. The last form of damages is punitive damages. Which come into
play in the retaliation section of the federal laws and the New York State and New York City
laws, where if you complain of discrimination or sexual harassment. If you participate in
the investigation of discrimination or sexual harassment and then the employer comes after
you. You engaged in a protected activity and now theyíre after you. Well they are retaliating.
The real question you have to ask and what you get to pose to a jury is how do we punish