How to Find Value of a Complaint of Employment Discrimination

There is no one size fits all resolution for a complaint of employment discrimination or retaliation.  The first thing that must be evaluated is what the individual wants as an outcome of the complaint of discrimination.  Some employees are most interested in preserving their job, and putting a stop to the discriminatory or harassing behavior.  Other employees are more interested in attempting to negotiate a severance and move on from their job because the employment relationship is no longer salvageable.  An employee who has been terminated because of a discriminatory reason may want his/her job back.

What does the law allow me to recover?

Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code both limit compensatory damages (e.g. mental anguish, emotional pain, suffering, etc.) to $300,000 for employers with more than 500 employees.  The limitations are

• $200,000 for employers with 201 to 500 employees
• $100,000 for employers with 101 to 200 employees
• $50,000 for employers with 15 to 100 employees

Front pay and back pay are not subject to these limitations.

While there are certain limitations placed on the amount of money that you can potentially recover in an employment discrimination claim, negotiations leave open the possibility for both parties to get somewhat creative in terms of the resolution.  For example, while employers are typically reluctant to provide a positive reference letter as part of a settlement, employers will oftentimes be willing to agree to include neutral reference language in a settlement agreement.  This type of language will typically limit the employer to providing only the following information about a former employee to a potential employer:

1. dates of employment
2. positions held
3. rate of pay  

Sometimes, a reference or a neutral reference can be more valuable to an individual than a monetary settlement.  There are also very limited circumstances in which a terminated employee (or an employee who resigned due to ongoing harassment) is offered reinstatement to his/her former position. 

What factors are considered in determining the value of a claim?

There are a number of factors that play a part in the potential recovery for any given person who is pursuing a complaint of discrimination.  Obviously, the factual allegations being made by the employee must be considered.  How strong of a claim is it and how seriously does the employer take it?  Is there strong evidence that supports the allegations?  As with any negotiation, you need two willing participants.  So the employer must be willing to discuss the possibility of a resolution. 

The employee’s employment history with the company is also likely going to be taken into consideration.  This includes how long the employee worked there, disciplinary/performance history, position(s) held, and salary.  Employers are generally more willing to offer a more significant monetary settlement to employees who have been with the company for a significant period of time.  If the employee had a history of disciplinary issues, the employer is more likely to take a defensive position with respect to the discrimination claim. 

I am oftentimes told by a client or a potential client that their employer is doing very well and has huge amounts of money in the bank.  The implication is that because the employer has all of this money, they will very willingly part with tens of thousands of dollars in a settlement.  While the employer’s bank account may be something that the employer ultimately takes into consideration in determining whether or not they are willing to pay some amount of money to settle a claim, it really has no bearing on the actual value of an employment discrimination claim.

What can I do to optimize my potential settlement recovery?

One of the smartest things that you can do to best position yourself to settle an employment discrimination claim is to retain an employment attorney to represent you.  It can be invaluable to have someone in your corner who can take an objective look at your claim and provide you with realistic expectations.  Whether you are considering filing a complaint of discrimination, or you have already done so without legal representation, an employment attorney can help you evaluate your claim.