DISCRIMINATION AT WORK

Discrimination under Federal Law

The  federal law allows you to sue your employer if you lost your job on  account of discrimation or otherwise were victimized by it while at  work, or if you were refused employment opportunity on account of it.   This enabling law has so much more teeth than your ability to sue for  promised benefits under ERISA.  That is because you can sue for all  damages and can sue for attorney's fees if you are successful.   In the  more egregious cases you can be awarded punative damages and this can be  huge.  But before you can sue you must file a claim with the Equal  Employment Opportunity Commission "EEOC" and you have a very short  amount of time to do it.  If you fail to timely file you will not be  able to proceed.  You can only proceed after the EEOC releases your  claim and failed to rectify your problem.

The  areas of discrimination that you can sue for are widespread.  The first  is covered by Title VII of the US Code and covers discimination because  of race, religion, creed, national origin, or sex.  The second is on  the basis of advanced age and is covered in the Age Discrimination  Employment Act "ADEA".  The third is covered under the Americans with  Disabilities Act  "ADA".  While this act applies to employment it also  applies outside employment.  A Fourth was created under the Clinton  administration, the Family Medical Leave Act "FMLA".  


To recap covered areas include:

  •  Title VII Discrimination
  • Age Employment Discrimination Act
  • Americans with Disabilities Act
                             Family Medical
  • Leave Act

Mr.  Reiss can help your case as an expert witness by strengthening it if it  is tried, but also by likely improving the offer made to settle the  case.  He has testified in both state and federal court on the subject  matter.  Where he can offer testimony depends on where you can sue and  where your attorney decides to sue. 

An  actuary can serve you best with identifying your loses.  That is  because some of this loss is actuarially-based, referred to as  "reputational damages".  Once you file in court against your employer  you are labelled a troublemaker even after you prove the merits of your  case.   If it is as a result of the firing you also have a hole in your  resume.     So much of the loss is related to employee benefits and all  other forms of compensation.  The actuarial component of damages  involves how the reputational component sustained by suing your employer  limits future opportunities; and how this relates to the federal  definition of recovery - to return you to the same state that existed  before the injury where you could still lose your job for lawful reasons  (if the damage was the result of a firing).  Thus irrespective whether  the court orders reinstatement of emloyment in lieu of front damages or  you find other work, the replacement or reinstated job could be  terminated for legal market reasons.   The injury shows its ugly face  when you seek new work at that later time.     As this particular form  of damages is not considered front or back pay and is limited by a  $150,000 cap, it is not subject to the rule that limits front pay  damages to three years. 

You  need a pension actuary to calculate all of the lost employee benefits.   When you can establish that the employer historically awarded stock  options on annual or biannual basis  you might be able to show the court  that all of the options are awarded as back pay even though the  employee might be required to work future years to fully vest the  options.  The argument gains strength when the options fully vest on  death or disability or when they vest on a change of control of  corporate ownership.  When one or more of these factors are present  vesting has little to do with allocating what was earned but instead  serves as a penalty for terminating employment in the same way that  other employee benefits work.  We certainly would not exclude  earned  retirement benefits that vest in the future because that work effort is  incidental to what has already been earned.  Besides the future work  effort brings with it future award of stock options.  When the same  conditions that vest an unvested retirement benefit vest an unvested  stock option the entire award when made is considered fully earned.  

The  point is that when these circumstances exist, not only are all options  awarded part of back pay damages, but the historical awarding of options  has a front pay damage component  to it that includes all options  awarded in the three front years irrespective whether they vest outside  the three-year period.  Only a highly skilled benefits expert who worked  in the design of such programs knows what to look for and how to find  it so that it can serve as a theory of damages before the court.   

Retirement  benefits and vacation pay can have a seniority-based portion also and  it usually requires a skilled benefits person to be able to recognize  and calculate it.  This seniority-based portion can be more than half  the value; and even though it is fully earned in the future, it is  permanently lost on the date you were fired (classifying it as back pay  damages).  This conclusion results because when new work is found with  identical pay and identical benefits these extra benefits require the  service with the prior employer and therefore will never be paid.