As attorneys who represent both agencies and employees before the EEOC, MSPB, and other administrative forums, we understand that not all complaints filed by employees have merit and may not pose a litigation risk to agencies. However, many cases do have merit. Also, sanctions issued by an administrative judge or the Office of Federal Operations can quickly turn a case from “no way we can lose,” to “this is going to cost us how much?!?”
Agencies can be in hot water when representatives fail to appropriately assess how much exposure can result from an adverse finding. Over the course of a few blog posts, we will outline the steps agency representatives should take in order to:
- Assess the types of potential remedies.
- Obtain the information needed to estimate the amount of monetary exposure.
- Limit the amounts awarded.
First up: how to identify and assess the various types of remedies available to complainants before the EEOC.
Your first step should be to review the accepted issues and identify all the types of damages that could be awarded as remedies. If the issues are particularly complex or numerous, it may be helpful to create a chart that outlines each type of issue and what remedies are available. For example, assuming a claim of non-selection was for a position at a higher-grade level, back pay would be an available remedy. However, claims of disparate treatment or harassment would likely not involve back pay. Claims of unequal pay brought under the Equal Pay Act may include liquidated damages if the violation is shown to be willful.
Similarly, claims of unlawful termination or constructive discharge may include an award of back pay dating back to the effective date of separation. Although front pay is not an appropriate remedy in every case where the employee is no longer in the workplace, it can be awarded where reinstatement would be impractical.
If the complainant has retained an attorney to represent her or him in the EEO complaint, then reasonable and documented attorney’s fees and costs should also be included as an available remedy. Although you may not have access to the monthly invoices from the attorney’s office, you can estimate a range of fees if you know the attorney’s hourly rate (D.C. area attorneys often rely upon the Laffeymatrix) and how much time has been spent on the case with depositions, written motions, and other work.
Non-pecuniary compensatory damages (i.e. the intangible physical and/or mental harm suffered by a complainant because of the discrimination in his or her personal life, career, and family and social relationships) can be awarded in all types of cases except where the only accepted or successful basis is age discrimination or retaliation based on age, or in claims of reasonable accommodation discrimination where the agency can demonstrate a good faith effort to try and accommodate the employee.
Don’t forget about claims of pecuniary damages and restoration of sick leave and annual leave, or repayment of LWOP as other potential remedies.
In the next blog post in this series, we’ll talk about how agency representatives can obtain the information needed to come up with ranges of monetary relief that could be awarded in a specific case. (Spoiler alert: it involves comprehensive discovery requests).