By Deryn Sumner, July 19, 2017
The Civil Rights Act of 1991 amended Title VII to, in relevant part here, allow successful complainants to recover compensatory damages for the emotional and physical impacts of workplace discrimination. The Act placed a cap on how much can be recovered, and employers with more than 500 employees face a maximum payout of $300,000 for compensatory damages. Once the EEOC’s Office of Federal Operations began considering cases where compensatory damages were available as a remedy a few years later, the Commission developed the framework still in place today: consider the nature, duration, and severity of harm to determine the appropriate award of non-pecuniary compensatory damages, and then make sure that award is not “monstrously excessive” on its own and is consistent with the amount awarded in cases with similar harm.
This formula worked well until more and more time passed since the 1991 effective date and, with inflation, the statutory cap of $300,000 became worth less and less. Also, those amounts awarded in similar cases started to become less appropriate over time, if the cases relied upon were issued more than a few years prior. Sure, the complainant in a 2007 case had similar evidence of harm and got $50,000. Shouldn’t my client in 2017 get more than that given that it’s ten years later? That argument has been made for years by attorneys for complainants and it finally got a foothold in a decision issued on June 9, 2017.
The Commission exercised its authority to issue a sua sponte decision reopening and reconsidering a prior decision in Lara G. v. USPS, Request No. 0520130618 (June 9, 2017). Way back in 2009, an administrative judge issued a decision finding the agency subjected the complainant to retaliatory harassment. Along with other remedies, the administrative judge awarded $100,000 in non-pecuniary compensatory damages. After the agency issued a final action accepting the finding of retaliation but rejecting the award of remedies, the case came to the Office of Federal Operations on appeal. The complainant argued that the award should be adjusted to reflect present-day dollar value of the precedent cited in support of the award. In a 2011 decision, the Commission found the administrative judge acted appropriately in awarding $100,000. The complainant then requested reconsideration arguing, “the Commission’s policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards.” In March 2012, the Commission denied the request for reconsideration.
However, after the complainant alleged that the agency failed to fully comply with the Commission’s Order, the case came back to the Office of Federal Operations as part of a Petition for Enforcement. After that, the Commission notified the parties in October 2013 that it intended to reconsider the case on its own motion. A mere three and a half years later, the Commission issued its decision and given the importance of its holding, I’m including a block quote of its analysis:
Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting “that those awards were several years ago, and thus the current value of those awards is considerably greater,” the court stated that the “[c]omparability of awards must be adjusted for the changing value of money over time.” Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N. D. Ill. 2004) (in decision reducing jury’s $ 250,000 compensatory-damage award to $175,000, court noted that older comparable award “should be converted to current dollars”), aff’d, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit).
Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant’s injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly.
In this case, the AJ determined in October 2009 that Complainant’s injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant’s award, we find it appropriate to increase Complainant’s award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award.
So a mere 18 years later, the complainant received an additional $10,000 in non-pecuniary compensatory damages. Was it worth it to the individual complainant? Likely not. However, expect to see this case heavily relied upon by complainants’ counsel in arguing for upward adjustments to compensatory damages awards. Sumner@FELTG.com