U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 7
REMEDIES IN THE EEO COMPLAINT PROCESS

When a finding of discrimination is made in an EEO complaint, the complainant is entitled to compensation for any harm caused by the discrimination. Such compensation is called remedies or relief. This section discusses the type of remedies available in different situations. The information in this section applies to remedies for both individual complaints and individual members of a class. Remedies are determined with reference to EEOC regulations, other applicable statutes and regulations, and EEOC and federal court decisions.

Remedies are awarded based on the circumstances of the complaint. The particular remedies available depend on the type(s) of harm suffered by the complainant. This varies widely depending on the type of discriminatory action and the effect of the action on the particular individual.

When remedies are awarded. In the EEO complaint process, remedies may be awarded to prevailing complainants:

• by the Department in a FAD on the merits of a complaint;
• by an EEOC AJ in a decision; or
• by the EEOC in a decision on an appeal from the Department’s FAD.

Remedies are awarded only when the Department or the EEOC finds that discrimination or retaliation has been proven.

Types of remedies. Two types of remedies are available in EEO complaints against federal agencies: equitable relief and compensatory damages.

• Equitable relief, also called “make whole” relief, is designed to restore the complainant to the employment situation s/he would have been in if the discrimination had not happened. This may include money for wages already lost (back pay), money for wages expected to be lost in the future (front pay), restoration of leave and other benefits, promotion, change in a performance rating and other types of non-monetary actions appropriate to the particular situation.
• Compensatory damages provide a prevailing complainant with monetary damages for other types of harm related to the discrimination, including:
  • Financial expenses such as medical expenses, moving expenses, and job search costs. These are called pecuniary damages.
     
  • Non-financial expenses such as emotional pain and suffering, mental anguish, injury to credit standing, injury to reputation, loss of enjoyment of life, and marital strain. These are called non-pecuniary damages.

Equitable Relief

When the Department finds that an employee or applicant for employment has been discriminated against, the Department shall provide full relief, which shall include, in the appropriate circumstances:

• commitment that corrective action will be taken or measures adopted to ensure that similar violations will not recur;
• where appropriate, an unconditional offer to each identified victim of discrimination of placement in the position s/he would have occupied but for the discrimination, or a substantially equivalent position;
• payment to each identified victim of discrimination on a make whole basis for any loss of earnings the person suffered as a result of the discrimination; and
• a commitment that the Department shall cease from engaging in the specific unlawful employment practice found in the case.

Equitable Relief for an Applicant for Employment. When the Department finds that an applicant for employment has been discriminated against, the Department, operating unit or segment thereof shall offer the applicant the position s/he would have held absent the discrimination or a substantially equivalent position unless the Department finds that clear and convincing evidence indicates that the applicant would not have been selected even absent the discrimination.

The offer of employment shall be made in writing. The offer must notify the applicant that if s/he declines the offer, s/he will still be awarded back pay. The applicant shall have 15 days from receipt of the offer to accept or decline. An applicant who fails to respond within this time period shall be considered to have declined the offer unless the applicant can show that s/he was prevented by circumstances beyond his/her control from making a timely response.

If the offer is accepted, placement shall be retroactive to the date the applicant would have been hired. Back pay shall be awarded from the date the individual would have entered on duty. The retroactive date of entry on duty shall be used for all service computations except completion of a required probationary or trial period.

If the offer is declined, the Department shall award the applicant the sum equal to the amount of back pay s/he would have received from the date s/he would have been appointed to the date the offer was declined, plus interest.

When there is a finding of discrimination, but the Department or EEOC finds clear and convincing evidence that the applicant would not have been selected, the Department shall take all steps necessary to eliminate the discriminatory practice and ensure that it does not recur.

Equitable Relief for an Employee. When the Department or EEOC finds that an employee has been discriminated against, the relief awarded may include the following:

• nondiscriminatory placement with back pay and interest, where appropriate;
• cancellation of an unwarranted personnel action;
• removal from Department or bureau records of any adverse materials relating to the discriminatory employment practice; and
• a full opportunity to participate in an employment benefit denied (i.e. training, overtime, work assignments).

When there is a finding of discrimination, but the Department finds clear and convincing evidence that the personnel action underlying the complaint would have been taken absent the discrimination, the Department shall take all steps necessary to eliminate the discriminatory practice and ensure that it does not recur.

Back pay. Awards of back pay are computed in accordance with 5 C.F.R. § 550.805. Back pay liability is limited under some statutes:

• Under Title VII and the Rehabilitation Act, it is limited to two years before the date the complaint was filed.
• In Equal Pay Act cases, it is limited to two years before the filing date, or to three years if the violation was willful.

In cases governed by the Back Pay Act or the Civil Rights Act of 1991, interest is included in an award of back pay. Interest on back pay is not available under the ADEA.

Compensatory Damages

A complainant may submit a claim for compensatory damages at any time up to and including the filing of an appeal with the EEOC.

Limitations on compensatory damages. Compensatory damages are not available under the following circumstances:

• for allegations of age discrimination or retaliation brought under the ADEA;
• in disparate impact cases, i.e., cases alleging that a policy or practice that appeared neutral had a negative effect on a protected class of people;
• in mixed motive cases, i.e., cases where an employer’s action was motivated by both illegal discrimination and legitimate non-discriminatory reasons, where it is shown that the contested agency action would have occurred absent the discrimination;
• in cases alleging failure to provide reasonable accommodation for a disability under the Rehabilitation Act where the bureau demonstrates a good faith effort, in consultation with the complainant, to provide a reasonable accommodation;
• for breach of a resolution agreement; and
• for acts prior to November 21, 1991.

Cap on compensatory damages. The maximum amount of compensatory damages that may be awarded for proven non-pecuniary losses and future pecuniary losses is $300,000 per aggrieved individual. This monetary cap does not include:

• equitable relief available under Title VII or the Rehabilitation Act, including back pay; or
• past pecuniary losses.

Proving a claim for compensatory damages. A two-part analysis is used in decided whether a prevailing complainant is entitled to compensatory damages:

• First, the complainant must show by objective evidence that pecuniary or non-pecuniary losses were incurred as a result of the discriminatory actions taken by the Department, operating unit or segment thereof.
• If the complainant meets his/her burden of proof, the burden shifts to the Department to show why all or part of the complainant’s claim should be denied.

The amount of any award shall be determined by reference to current case law, including awards in similar cases.

Mitigation of Damages

Complainants must make reasonable efforts to mitigate or minimize their damages. For example, an employee who was fired would mitigate damages by trying to find other work. If the bureau believes that a prevailing complainant failed to make reasonable efforts to mitigate damages, the bureau must prove this by a preponderance of the evidence.

Attorney’s Fees and Costs

When a finding of discrimination is made under Title VII or the Rehabilitation Act, the complainant is entitled to reasonable attorney’s fees and costs. Attorney’s fees are not available under the ADEA or the EPA at the administrative level. Attorney’s fees and costs shall be paid by the operating unit or segment thereof against which a finding of discrimination is made.

Fees that may be reimbursed. Attorney’s fees shall be allowed only for services rendered by members of the bar and law clerks, paralegals and law students under the supervision of members of the bar. Attorney’s fees will not be paid to any employee of the Federal Government.

Normally, the Department is not required to pay attorney’s fees for services performed prior to the filing of a formal complaint, except that reasonable fees may be paid for services performed in reaching a determination to represent the complainant. Written submissions to the Department signed by the representative shall be considered notice of representation. However, in the following circumstances, the Department may be required to pay attorney’s fees to prevailing complainants for pre-complaint processing:

• a hearing is requested;
• the AJ issues a decision finding discrimination;
• the agency issues a final order disagreeing with the finding and appeals it; and
• the EEOC upholds the AJ’s finding on appeal.

Processing claims for attorney’s fees awarded by the Department. When the Department awards attorney’s fees or costs, the complainant’s attorney shall submit a verified statement of attorney’s fees and costs (including expert witness fees) to the Director of OCR, within 30 days of receipt of the FAD. When the EEOC awards attorney’s fees on appeal, the attorney shall submit the verified statement to the Director of OCR, within 30 days of the appeal decision unless either party has filed a Request for Reconsideration. The statement of attorney’s fees must contain an affidavit executed by the attorney of record, itemizing charges for legal fees.

• the experience, reputation and ability of the attorney;
• the undesirability of the case;
• the length of the professional relationship with the client and awards in similar cases.

Only in cases of exceptional success should any of these factors be used to enhance or reduce an award.

The Department must pay costs to a prevailing complainant for reasonable expenses incurred during the prosecution of the complaint. The reasonableness of costs is determined in accordance with EEOC regulations at 29 C.F.R. §§ 1614.501(e)(2)(ii)(C), 1614.501(e)(2)(iii) and existing case law.

Compliance with EEOC Decisions. Except where the Department has filed an appeal or a Request for Reconsideration, the relief ordered in an AJ's decision or an EEOC decision on appeal shall be provided within 60 days after receipt of the decision.

In Departmental appeals and requests for reconsideration of decisions which order retroactive restoration of an employee in a case involving removal, separation or suspension which continues beyond the date of the final order or request for reconsideration, the Department shall comply with the decision by temporarily or conditionally restoring the employee to duty status in the position recommended by the AJ or EEOC, pending the outcome of the appeal or request for reconsideration. At the same time it appeals or requests reconsideration, the Department shall notify the employee and the EEOC that its compliance with the decision is temporary or conditional.

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