employment discrimination

Punitive Damages in Employment Discrimination Cases — 25 Questions to Elicit Helpful Testimony

employment discriminationIn claims under Title VII (and the ADA and 42 U.S.C. §1981), a significant portion of a plaintiff’s jury verdict can be comprised of punitive damages. To obtain these damages for your client in an employment discrimination case, you must present evidence sufficient to establish that: (a) the employer acted with reckless disregard for your client’s federal rights; and (b) the individual(s) who discriminated against your client was a managerial employee, acting within the scope of his employment.

One way to establish these facts is through the testimony of the alleged harasser and the decision-maker. Here is a checklist of questions, excerpted from Eugene Hollander’s Employment Evidence, to help elicit the facts you need to support a punitive damages award:

Reckless Disregard of Plaintiff’s Rights

Q:  Did your employer provide you any training in the area of sexual harassment?

Q:  Is there any written documentation to demonstrate that you attended this training?

Q:  What is the company’s policy on sexual harassment?

Q:  Under the company’s policy, is it sexual harassment if a supervisor gropes a female subordinate, but later apologizes?

Q:  Under the company’s policy, if a manager learns that a subordinate groped a female employee, what is the manager’s responsibility?

Q:  During the investigation of the Plaintiff’s complaints of sexual harassment, did you tell the truth about your involvement to the EEOC?

Q:  During the company’s investigation of the Plaintiff’s complaints of sexual harassment, did you tell the Plaintiff the truth about the results of your investigation?

Managerial Responsibilities

Q:  What are your job duties?

Q:  Do you have a lot of discretion in the performance of your day-to-day job duties?

Q:  Do you have authority to implement discipline under the company’s progressive disciplinary policy?

Q:  Do you have the authority to terminate employees?

Q:  Can you hire employees?

Q:  Do you conduct performance appraisals for the Plaintiff or any other employees?

Q:  Do you have authority to give the Plaintiff a raise?

Q:  Do you have the authority to direct the Plaintiff where to work?

Q:  Did you have the authority to reassign the Plaintiff to another division?

Even if the Plaintiff can establish these two elements, the employer still can avoid punitive damages if it made a good faith effort to implement an anti-discrimination policy and comply with Title VII. Ask the Human Resources representative these questions to undermine the employer’s claim of good faith:

Failure to Implement Policies in Good Faith

Q:  How often did the company meet to discuss its zero-tolerance policy?

Q:  Did the alleged harasser attend any of these meetings?

Q:  How was the company’s zero-tolerance policy disseminated to its employees?

Q:  Did the alleged harasser receive the zero-tolerance policy?

Q:  Were posters or other signage displayed in the workplace, describing the company’s zero-tolerance policy?

Q:  Was there a different investigation policy in reality compared to what was described in the company manual?

Q:  Once the Plaintiff complained of being sexually harassed, how long did it take for Human Resources to initiate an investigation?

Q:  What steps did upper management take once it learned of Plaintiff’s sexual harassment complaint?

Q:  Once the company took disciplinary action against the alleged harasser, did the sexual harassment against the Plaintiff continue?


Eugene Hollander is a principal in the Law Offices of Eugene K. Hollander, in Chicago, Illinois. Mr. Hollander is a 1986 graduate of IIT Chicago Kent College of Law. A trial veteran, Mr. Hollander has tried approximately 100 cases in state and federal court over the course of his career. He is a member of the National Employment Lawyers Association and a frequent lecturer on employment issues. Mr. Hollander has been recognized as an Illinois Super Lawyer. His book, Employment Evidence, is a practice guide that provides foundations, objections, responses, tactics, jury instructions, motions in limine, and supportive authority for admitting and excluding dozens of specific types of evidence.