What Damages Can You Get If Your Employer Retaliates Against You?

Learn how you may be compensated if you win a retaliation case against your employer.

Question:

I told our company human resources manager that my supervisor is constantly hitting on a female coworker. The HR manager said he investigated the matter, but I never heard back on the result of the investigation. However, I was recently demoted, with a significant cut in my hours and pay. My supervisor said that the company was going through a “restructuring,” but I was the only one who was let go. I think my supervisor is punishing me for ratting him out. I’m thinking about going to a lawyer but I’d like to know what I could possibly win if I brought a successful case against my employer.

Answer:

If you win your case against your employer, you may be awarded lost pay, pain and suffering, punitive damages, and attorneys' fees and costs (all of which are explained below). However, the exact amount you recover in each of these categories depends on what you have lost as a result of the retaliation.

Retaliation

When an employer takes a negative action against an employee for making a report of sexual harassment, the employer has retaliated against the employee. This type of retaliation is illegal under federal law and the laws of many states. For more information about employment retaliation, see Nolo’s article, Workplace Retaliation: What Are Your Rights?

What Can I Recover?

Before you can pursue a case in court for retaliation, you must first file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency that handles discrimination, harassment, and retaliation charges. If you are unable to resolve your dispute through the EEOC, you can request a right-to-sue letter, which allows you to then file a lawsuit in court.

If you move forward with an EEOC charge or a lawsuit against your employer, you will be seeking “damages”: the losses you have suffered as a result of your employer’s retaliatory act (your demotion). There are several types of damages you may be entitled to recover in a retaliation case.

Lost Pay

If you can prove that your employer demoted you because of your report to HR of the supervisor’s harassment, you can recover the lost wages you have suffered due to the demotion (called “back pay”). You may also be able to recover the wages you will continue to lose in the future if you are not reinstated to your former position (called “front pay”). You may also be able to show that the demotion will have a negative effect on your career overall, which will hurt your chances of finding work in the future. While this can be a more difficult item of damages to prove, your lawyer can hire an expert to assess the impact of your demotion on your future career path.

Lost Benefits

Sometimes job benefits are tied to the number of hours an employee works. For example, employees who work full time might be entitled to more vacation than part-time employees. Other benefits may be affected by a cut in pay, such as health insurance, bonuses, or 401k contributions. If you’ve lost any benefits as a result of your demotion, you may be able to recover the value of those lost benefits.

Pain and Suffering

Employees who have experienced retaliation often ask for an award of “pain and suffering,” which includes the negative emotions (including anger, embarrassment, frustration, and the like), reputational harm, and other negative consequences you’ve experienced as a result of the retaliation. To prove you have suffered this kind of emotional harm, your lawyer may need to have a mental health expert evaluate you and testify at trial about your injuries. Unlike lost pay, damages for pain and suffering do not easily translate into a dollar amount. It is entirely up to the jury to decide how much to award. However, your lawyer can give you a general idea of what other employees in similar cases have recovered.

Punitive Damages

As suggested by the name, punitive damages are intended to punish your employer. Punitive damages are only available in particularly egregious cases and even then, may be awarded only if you can meet a higher standard of proof than is required to prove the underlying retaliation itself. In short, punitive damages are difficult to win. And, like pain and suffering, the amount of punitive damages is entirely up to the jury. Because of this, you should ask your lawyer about the prospect of winning punitive damages in your case.

Attorneys’ Fees

If you win your case, the court may also order your employer to pay for your attorneys' fees. This sum would then go towards paying your lawyer’s fees. If the sum is enough to cover your fee agreement with your lawyer, then the attorneys’ fees will be paid entirely by your employer. However, if the sum is not enough to cover your agreement with your lawyer, the remaining attorneys’ fees will come out of your total award.

Consider Your Options

Lawsuits can be costly and time-consuming, especially if you are suing a current employer. You should consult with an employment lawyer, who can carefully assess the pros and cons of filing a lawsuit or other methods of pursuing your case. For example, your lawyer may recommend that you continue to pursue your case through the EEOC, which is typically less costly and less time-consuming than a lawsuit. On the other hand, your lawyer may recommend that you request a right-to-sue letter from the EEOC so that you can immediately file a lawsuit. Or, your lawyer may recommend informal settlement negotiations with your employer. For more information on how to find a lawyer, see Nolo’s article, How to Find an Excellent Lawyer.

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