Last updated Nov. 28, 2017.
When I initially consult with new clients, one of the first things they want to know is how much money they can expect to recover by filing an employment claim.
It’s a very good question. In fact, the potential value of your claim is one of the critical issues in your determination of whether or not to sue. Equally critical, however, is whether you are mentally and emotionally ready to sue.
Since the answers are often complicated, let’s take each question in turn.
How much is my employment claim worth?
Generally, the point of an employment claim is to put the worker in the same position as he/she would have been in if the employer’s illegal conduct had not occurred. If your claim makes it all the way to trial, and a verdict is entered in your favor, anti-discrimination laws authorize the jury to consider and award you certain specific monetary damages.
However, the great majority of cases do not make it to trial, but instead settle out-of-court. As a practical matter, then, what are some things that factor into the size of a settlement?
Obviously, the salary you lose as a result of being unlawfully terminated will represent the bulk of any settlement that occurs. A good attorney will do his or her utmost to recover your lost pay, and perhaps even benefits expenses (such as monthly COBRA insurance coverage) that you had to pay out-of-pocket as a result of being fired.
However, keep in mind that, in employment claims, plaintiffs have a duty to mitigate damages. In plain English, this means that once fired — even if it was illegally — you need to make reasonable efforts to find a replacement job. To prove mitigation, you will likely need to supply copies of emails, or other documentary evidence, showing that you submitted your resume or otherwise applied for work.
If you don’t meet your duty to mitigate, you risk reducing the value of your claim — sometimes by substantial amounts. Moreover, if you are offered and turn down a comparable position with comparable pay, this may very well reduce the value of your claim as well.
Can I sue my employer for stress and anxiety? The short answer is, yes.
Sometimes workers claim mental or emotional suffering as part of their employment claims. Being unlawfully terminated can absolutely cause debilitating anxiety and depression. If you prove that you were subjected to unlawful discrimination or harassment, you are certainly entitled to recover for this harm.
Although not absolutely necessary in New Jersey, generally you would want a psychiatrist or mental health professional to testify in support of these damages. However, in New Jersey, even what are known as “garden-variety” emotional distress damages are compensable. This means that if even you are not diagnosed with any recognized mental health condition, such as depression or post-traumatic stress disorder, you can still receive damages for the ordinary and usual stress and anxiety associated with losing one’s job.
Emotional distress damages, however, are difficult to quantify and place a hard-and-fast figure on. Different juries hearing the same evidence can give highly variable and uneven awards, and therefore emotional distress damages is most often the most speculative factor in calculating a potential recovery.
The Legal Strength of Your Claim
Above all, the worth of your claim depends upon how convincing it is to a judge and/or jury. The worker who can prove discrimination via direct documentary evidence (say, a sexually crude email from a manager), or sworn testimony from co-workers who witnessed the discrimination first-hand, will have leverage in negotiating with the employer. A worker who can only prove discrimination indirectly from circumstantial evidence may have less.
Determining if You Should Sue
Make no mistake about it, litigating an employment claim can be very tough. Before you make the decision to sue, a good attorney should discuss the following with you:
- The length of litigation. Lawsuits can move quite slowly. It may take years from the time you file your claim in court to the time you reach a settlement, if any. Why? Well, for one, many employers take a very defensive stance toward employment claims, fearing that if they settle too quickly, they will encourage other workers to file suit as well.
- The assault on your professional reputation. Employers refute claims of discrimination or whistleblowing by proving they had a legitimate, legal reason for firing you. This often means that they will try their very hardest to show that you were incompetent and unprofessional. Any prior negative employment history you have will be brought to light, however minor.
Discrimination and Harassment Lawsuit Payouts
In deciding whether to bring an employment claim, then, you need to weigh the stress of litigation against the estimated size of your claim. When consulting with an attorney over a potential discrimination or harassment lawsuit, ask and get thorough answers to the following:
- What are the strengths of my claim?
- What are the weaknesses?
- Given all the aspects of my claim, what would be a reasonable settlement demand on my part?
At the same time, consider whether you have the patience and emotional stamina for litigation. It can be drawn-out and draining. On the other hand, however, for those who can go the distance, it can result in not only financial compensation, but the sense of justice being served.
Zatuchni & Associates specializes in discrimination claims across all protected categories. We’ve helped countless clients who have suffered workplace bias secure financial and legal compensation from their employers. If you believe you’re a victim of unlawful discrimination, contact our offices online or call 609-243-0300 today for a free consultation.