On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”). This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance. This is the eighth post in our series and it examines remedies for a successful retaliation claim. Generally, remedies for a retaliation claim fall into two categories: injunctive relief and damages.
Temporary or preliminary injunctions allow a court to stop retaliation before it occurs or continues where there is a substantial likelihood that the challenged action will be found to constitute unlawful retaliation and the employee and/or the public interest will likely suffer irreparable harm. Although courts have ruled financial hardships are not irreparable, other harms that accompany job loss may be sufficient. For example, employees who were forced into retirement showed irreparable harm where they lost work and future prospects for work, suffering emotional distress, depression, a contracted social life, etc. A temporary injunction is also appropriate if the retaliation will likely cause irreparable harm to the EEOC’s ability to investigate the original charge of discrimination, such as by discouraging others from providing testimony or from filing additional charges based on the same or other alleged unlawful acts. The EEOC has the authority to seek temporary injunctive relief when a preliminary investigation shows that prompt judicial action is necessary to carry out the purposes of Title VII, and the ADA and GINA incorporate this provision. In contrast, the ADEA and the EPA do not authorize interim relief pending resolution of an EEOC charge, however the EEOC can seek such relief as part of a lawsuit for permanent relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
The other main form of relief in a retaliation claim is damages, which can be either compensatory or punitive (though punitive damages are not available against government entities). However, the extent to which damages are allowed varies depending on the statute being invoked:
- Title VII and GINA allow for both compensatory and punitive damages, with a combined cap that scales based upon employer size. This cap ranges from $50k for employers with 15-100 employees to $300k for employers with more than 500 employees. Punitive damages require showing the employer acted "with malice or with reckless indifference to the federally protected rights of an aggrieved individual."
-ADEA and EPA retaliation claims also allow for both compensatory and punitive damages, even though such relief is not available for non-retaliation claims under those statutes. These statutes do not impose a statutory cap on damages.
-The ADA, while including both anti-retaliation and interference provisions, does not include a remedy and instead references 42 U.S.C. § 12117, which in turn references Title VII. Moreover, courts have split on the scope and type of damages available. Accordingly, this will vary by jurisdiction.
Other forms of relief include back pay if the retaliation resulted in termination, constructive discharge, or non-selection, as well as front pay or reinstatement. Equitable relief also frequently sought by the Commission includes changes in employer policies and procedures, managerial training, reporting to the Commission, and other measures designed to prevent violations and promote future compliance with the law. These are mirrored in the Guidance’s “promising practices,” which will be the topic of our next and final post on the Guidance.
The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm