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In the past, our employment attorneys have addressed the issue of damages and how we calculate them arising out of wrongful termination and other forms of employment discrimination. (Best Law Read: What Kind of Damages Can You Get for Wrongful Termination and Discrimination?; How is Back Pay Calculated in Wrongful Termination Cases?; Wrongful Termination Claim: Why Looking For A New Job Is So Important). We have covered economic damages in the form of back pay, front pay, wage differential, loss of benefits, and noneconomic benefits in the form of emotional distress. Today, we will discuss another form of noneconomic damages: punitive damages.

What are punitive damages?

Best Employment Lawyer Answer: Simply put, they are damages courts order defendants to pay to punish them to dissuade them and others from engaging in the same conduct again. Much like when you were a kid and you took a sibling or a friend’s toy without their permission, one of your parents probably told you to give it back and then put you in a time out. Giving back the toy was like paying economic damages. The time out served as punishment to dissuade you from taking toys again (i.e. punitive damages).

What employment law allow for punitive damages?

Best Employment Discrimination Attorney Answer: Punitive damages are available for many, but not all claims. First, punitive damages are available for employment discrimination and retaliation claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), Genetic Information Nondiscrimination Act (“GINA”), and Pregnancy Discrimination Act of 1978 (“PDA”). This covers discrimination and wrongful termination based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, genetic information, and disability.

However, punitive damages are interestingly not available for age discrimination claims under the federal Age Discrimination in Employment Act of 1967 (“ADEA”), but they are available for age discrimination claims under certain state laws, such as Ohio’s R.C. 4112.02(N) that aren’t based on a failure to hire or wrongful termination. This could include age discrimination claims based on discriminatory pay, a failure to promote, or hostile work environment.

Punitive damages are also not available under Uniformed Services Employment and Reemployment Rights Act (“USERRA”) on military discrimination and wrongful termination claims.  Likewise, punitive damages are not available for overtime, tipped-wage employee, nor minimum wage violations, but courts are split as to whether punitive damages can be awarded in retaliation cases under the Fair Labor Standards Act (“FLSA”). (Best Law Read: What Damages Can I Get For Wage Violations And Retaliation Under FLSA?).

Are there limits to the amount of punitive damages?

Best Wrongful Termination Lawyer Answer: Yes. Though they are meant to punish a violating employer, punitive damages are capped by law. Under Title VII, punitive damages are capped at $300,000. Similarly, Ohio caps punitive damages at $350,000. You could see how large corporations such as Walmart wouldn’t feel the brunt of max punitive damages award as much as a small business. Unfortunately, tort reform has limited certain areas of recovery, and this is what we have to work with.

Are punitive awards common?

Best Employees’ Rights Lawyer Answer: Every case is different. In the overwhelming majority of cases that Spitz has tried and won, punitive damages have been awarded. However, awards of punitive damages overall are rather rare for a number of reasons. First, employment discrimination cases have a very high settlement rate, so they rarely go to trial to receive a punitive damages award in the first place. Second, the bar to qualify for them is quite high. To qualify for punitive damages under Title VII and the ADA, a plaintiff must show the defendant has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”

Can you discuss an example of punitive damages?

Best Employment Lawyer Answer: Of course. Recently, the United States Court of Appeals for the Eleventh Circuit addressed the issue of punitive damages in an ADA disability discrimination case, Merard v. Magic Burgers, LLC, 2022 WL 3023213. Magic Burger hired Ashley Merard as a crew member in July 2017. The year before, Merard was injured in a car accident and had to have a tracheostomy tube permanently implanted on the front of her neck. Magic Burger hired her to work as a drive-thru and front of house cashier. Her supervisor fired her on August 23, 2017, barely a month after she started. When she asked why she was being fired, her supervisor pointed at her tracheostomy tube and said, “because of that”. Her supervisor was ordered to fire Merard by their regional manager. A few days later, the regional manager went to the store to confirm Merard had been fired. While there, he referred to Merard as “the nasty girl with… the tube in the throat.”

Merard filed a lawsuit against Magic Burger asserting state and federal claims for disability discrimination. To prevail on a wrongful termination claim under a theory of disability discrimination, an employee must show that they have a physical or mental impairment that substantially limits a major life activity (i.e. “a disability”), and their former employer terminated their employment because of their disability.

Merard’s tracheostomy tube constitutes a disability. It is a physical impairment that substantially limits several major life activities. And her supervisor’s statements, and those of the regional manager, indicate she was fired because of her disability.

Merard prevailed at trial and the jury award her $45,519.60 in economic wages, specifically lost wages and pain and suffering. The jury also awarded her $2,000,000 in punitive damages. The district court amended the punitive damages award to $300,000, the statutory cap, and entered judgement in favor of Merard in the amount of $345,519.60. Magic Burger appealed the award of punitive damages, asserting Merard failed to prove Magic Burger acted with malice or reckless indifference to Merard’s federal rights under the ADA.

For a company to be held liable for the conduct of their employees, you must impute liability. In this case, the court said Merard had to show that “the discriminating employee was high up the corporate hierarchy, or that higher management countenanced or approved his behavior.” The court held that the regional manager was high enough in the corporate hierarchy to make the company liable for her misdeed. Also, the supervisor’s testimony stating the regional manager directed her to fire Merard because of her disability, and the regional manager’s visit to the store to ensure Merard had been fired indicates the regional manager was the discriminating employee and he acted with blatant disregard for Merard’s rights under the ADA.

Can I get punitive damages in my discrimination case?

Best Employment Law Firm Answer: Every claim is different, and not all claims will have the facts to support an award of punitive damages. It is best to consult with a trained employment discrimination attorney to determine what claims you have, and what you may be able to recover based on those claims. If you are facing race, national origin, gender, age, religion or disability discrimination at work; are being sexually harassed; was wrongfully fired; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

This employment law website is an advertisement. The e/m discrimination and wrongful termination materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I sue for being wrongfully fired”, “What can I do if I was fired today because of race discrimination,” “My manger is sexually harassing me” or “I was fired because I’m gay”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.