Evil Plots, Dirty Tricks, Carelessness, and Apathy What Facts Lead to Large Damage Awards And What Steps Can You Take To Avoid Them Tamara Gerrard tmg@torkildson.com Torkildson Katz Moore Hetherington & Harris

Right Idea, Wrong Tactics

Sometimes the allegations are extreme. Novartis Sex Discrimination Class Action: $250 Million Award

Sometimes the facts reflect apathy. Employee complained about harassment by customers. Supervisors called her a crybaby and said they didn’t want to risk losing the business. HR did nothing for four months. In February 2014, jury awarded the employee $2.5 million.

Where did these companies go wrong? Recurrent theme: Valuing money more than people

Common Components of Damage Awards in Employment Cases Back pay Front pay Emotional distress Punitive damages Attorneys fees

Tips: Back Pay / Front Pay Toll back pay by making an unconditional offer of reinstatement. EEOC v. Ford Motor Company. What won’t work: “As long as you promise not to sue the company, you can have your job back.”

Kolstad v. American Dental Ass’n “[I]n the punitive damage context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”

Good Faith Efforts Have a policies that prohibit harassment and discrimination in the workplace. Have a complaint procedure. Train supervisors regarding how to identify harassment and respond to complaints. Respond to complaints when they are made.

But Be Careful Having policies, but not enforcing them, will not provide a defense.

A word about attorney fees Novartis case in which the jury awarded $250 million has settled on appeal for an amount closer to $175 million. About $16,173 for each of the class members representing roughly $2,000 per year for an eight year period of disparate pay. Named plaintiffs and plaintiffs who testified will get about $217,391 each. About $6,499 set aside for claims that might be submitted for medical expenses.

$42.5 million in attorney fees $625,000 to each of the 68 lawyers who worked on the case.

$22 Million Awarded in 2013 Employee had panic attacks Her supervisor implied she was faking it Employee asked her husband (who also worked for company) to let the company know she couldn’t come in to work Company fired her for failing to personally call in sick $16.5 million in punitive damages.

When in doubt, call your lawyer for advice . . .

Thank you The information presented at this conference is intended for educational purposes and is not intended to substitute for legal advice regarding specific actual situations. If you require legal advice, please contact: Tamara Gerrard tmg@torkildson.com 808-523-6000.