How Experts Determine Lost Wages in Discrimination Lawsuits: Part I

by Bill Marder on October 9, 2012

The U.S. has an “employment at will” doctrine, which means you can be fired for virtually any reason: even no reason at all.  Your employment can be terminated if the employer doesn’t like the way you part your hair, the way you decorate your desk, or just because he doesn’t like you.

How Does U.S. “Employment at Will” Doctrine Protect Employees?

However, there are a few areas where employees do have protection under the law.  It is illegal to fire or deny promotions to someone based on race, gender, or age, and in the state of California, there are many additional protections for employees.  So if you’ve been discriminated against in this way at your job, you are entitled to file a wage claim, a discrimination complaint, or you may file a lawsuit against your employer to recover your lost earnings.  When you go to court, your attorney must prove to the judge or jury that you have been the victim of discrimination, and will allege that your earnings were lower than they should have been.

 How Do I Determine My Lost Earnings?

There are many ways of determining your lost earnings.  Typically, an expert such as a labor economist will be hired to calculate what you could have earned if your employer had not denied your promotion or terminated your employment.  The economist will examine your old wage, the wage you would have received had you been promoted or retained employment, as well as take into account how long you were forced to spend looking for a new job.  In some cases, the time you spend looking for a new job will be compounded by weak job markets and fewer comparable available jobs.

Circumstances affecting your lost earnings calculation:

  • You were fired and have no income
  • You were fired and had to take a lower paying job
  • You were denied promotion, so you are receiving less $ than you deserve
  • You were denied a raise, so you are receiving less $ than you deserve

Example of “Comparables”

Sometimes the expert will examine something called “comparables.”  If your employer denies you the job or promotion and gives it to someone else instead – that’s a comparable.  Typically, you have to argue that the person who got the job instead of you is comparable to you, therefore you should have gotten the job. Then it’s very easy for the expert to calculate what you lost: if the other person got $100,000, and you only got $90,000, then you lost $10,000.

You are still expected to mitigate your loss.  If you do nothing to alleviate your lost earnings, like if you don’t take an available job in your field that might have different or less pay, then it’s unlikely the judge will say that you deserve the full amount because you failed to take reasonable steps to get another job.  If you can document that you’ve looked for a job and can’t get one, then that documentation will be very important to your case.

The good news is that you are not obliged to take a job for which you are overqualified.  If you lose a teaching job, you don’t have to take a job flipping burgers.  You are only expected to mitigate by taking a job that’s suitable and appropriate for you.

If you decide to sue your employer for discrimination, contact an experienced plaintiff’s employment lawyer for more guidance.


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