Understanding the Financial Risks in Employment Discrimination Disputes

In employment disputes involving claims of disability discrimination and/or race or age discrimination, emotions are almost always involved. Both sides of the dispute must deal with insulting allegations and unreasonable expectations. From the employer’s standpoint, however, it is always necessary to take a quick look at what the risks may be when deciding whether to fight and defend an employment claim or seek a resolution.

For instance, in situations involving disability discrimination, a good way to calm emotions is to review the potential damages available in the litigation you are confronting. While these damages are not always available in other types of discrimination and wrongful termination actions, it is a good starting point in any potential lawsuit. Assume that the aggrieved or wronged plaintiff is entitled to the following damages:

Back pay

Front pay

Compensatory damages

Reasonable attorney fees

Potential punitive damages

Back pay represents recovery of the wages lost since the date of termination. Front pay  represents potential pay the plaintiff could have earned had they stayed in their position prior to obtaining other alternative employment. Compensatory damages arise when there is proof of non-economic injuries such as emotional distress, harm to reputation, or mental anguish. These damages can be awarded without the necessity of expert testimony. Punitive damages are awarded when the employer is found to have discriminated against the employee with “malice or with reckless indifference to the protected rights of the individual.” Attorney fees are available when the plaintiff is successful at trial.

It is obvious that the amount of recovery for a wrongfully terminated plaintiff can add up to a significant amount of money. More importantly, the amount of recovery can far exceed the lost wages involved in the dispute. Such was the situation in the recent case of John Kassay v. Niederst Management, Ltd., 8^th App. Dist., County of Cuyahoga, 2018-Ohio-2057, decided May 24, 2018.

In the Kassay case, the plaintiff brought an action against Niederst, his employer, alleging wrongful termination based upon disability discrimination, failure to provide reasonable accommodation, and unlawful retaliation in violation of the disability discrimination laws in Ohio. The plaintiff showed up to work one day wearing a brace on his wrist. He was confronted by a supervisor and asked if he had any injuries or physical problems. He was then informed that he would have to complete Family and Medical Leave Act (FMLA) paperwork to show that he was able to work without restrictions or limitations if he wanted to continue his employment. The plaintiff was confused and did not think the FMLA paperwork pertained to him since he was not requesting any leave from work. However, he attempted to obtain the information from his physician. Until he completed the paperwork and received a return to work note from his doctor, he would have to remain off work. He was not given a deadline on when he needed to return the paperwork. After trying to schedule several appointments with his doctor, he was finally able to obtain the FMLA paperwork and a release to return to his regular job. When he finally provided the forms to his human resource representative, he was told that he had been terminated for failing to comply with the employer’s call in procedure.  He then decided to pursue litigation against his employer for his termination.

While the employer may have been initially correct in applying its leave of absence policy, strict compliance with the call in procedure left little room for plaintiff in this case to comply.  This was true especially when he ran into problems communicating with his doctor. Also, there was no written documentation notifying him of the deadline when the FMLA paperwork was required or why the FMLA paperwork was needed at all.

The plaintiff was successful at trial and recovered from the employer Thirty Two Thousand Three Hundred Dollars ($32,300.00) in economic damages (lost wages and benefits), Two Hundred Forty Eight Thousand Nine Hundred Dollars ($248,900.00) in non-economic damages (emotional distress), Two Hundred Fifty Thousand Dollars ($250,000.00) in punitive damages and Two Hundred Two Thousand Dollars ($202,000.00) in attorney fees. Front pay was also awarded but the amount was not listed in the decision. Needless to say, this was a very expensive piece of litigation for the employer.

While the employer felt strongly about its defense that the plaintiff had failed to communicate with the employer during his absence, the risks of potential recovery for the plaintiff clearly made this a situation where some resolution to this dispute should have been pursued prior to the trial. As indicated earlier, the amount of lost wages was relatively small compared to the additional damages awarded in the case.