Benedict Morelli is the founding partner of Morelli Law Firm in New York City. He represented Andrea Mackris in her sexual harassment suit against Bill O’Reilly.
Last year, an Illinois jury awarded Danya Davis and Bernessa Wilson $6.45 million, agreeing that the two women were sexually harassed in their office and were terminated for speaking out. But two months later, an Illinois federal judge cut the judgment to just $100,000.
The judge wasn’t being cruel; he was just following the law. As per the Civil Rights Act of 1991, sexual harassment at a company such as Davis and Wilson’s — no matter how damaging to your career — entitles you to only $100,000.
In what was one of the most glaring failures of our federal government, the 1991 legislation implemented caps on the amount of compensation victims of workplace harassment or discrimination could receive. In fact, the maximum is just $300,000 — and that is only if your company has 500 or more employees. For those who work at a company with 15 to 100 employees, only $50,000 is available. These insufficient caps apply to all damages, those that cover lost compensation and punitive damages intended to penalize employers for particularly outrageous behavior.
Some states have implemented their own laws to give victims of sexual harassment a fair shot at appropriate compensation. New York, for example, has a Human Rights Law that allows victims to bypass the caps. But in many states, the federal statute is the only option available to victims.
The 1991 legislation was supposed to reflect a positive step toward protecting victims of sexual harassment and discrimination. And it was, as it gave victims the right to pursue financial damages through a jury trial for the first time. But lobbyists and lawmakers marketed widespread fear by claiming the legislation would cause a flood of sexual harassment claims, so Congress added caps, which have remained unchanged for more than 25 years.
The caps have a daily and devastating impact on victims. Those who decide to bring cases — usually women — are stigmatized and often never work in their professions again. They need to ensure that they can obtain enough money to weather the impact to their careers. And unfortunately, because of this disincentive, many decide that $300,000 (at most) is not enough to put their livelihoods on the line.
Consider, too, the message Congress is sending about what’s important when judging cases of harassment. With arbitrary caps based on the size of the company and not the degree of abuse, Congress makes it clear they are more concerned with the financial well-being of employers rather than protecting victims.
Recently, we have become accustomed to seeing high-profile predators such as Bill O’Reilly face multimillion-dollar settlements. But this type of settlement is the exception, not the norm. The federal caps are one of the major barriers preventing victims from receiving fair compensation.
Take, for example, the story of a Texas woman who claimed that, during a smoke break with her boss, he exposed himself and pushed her head toward his crotch. Despite the egregious nature of her allegations, at the time she could only collect $300,000. That’s because Texas is one of the few states with no additional state laws allowing victims to receive compensation beyond the caps. If her supervisor had hit or physically fought her, she would have been able to sue for millions. But because her claims were considered sexual harassment, she was out of luck. Her case eventually made its way to the Texas Supreme Court, which ruled she could sue for assault with no caps on damages.
Even in cases where a more progressive state law exists, federal caps can produce unjust and unreasonable outcomes. Often, a lawyer brings forward a case under both a state law and the federal law — but there’s a catch. Lawyers are not permitted to tell the jury that the federal damages cap exists. That means if a jury delivers a judgment of $10 million and decides the appropriate way to apportion the money is entirely under the federal statute, the judge will be obligated to reduce the verdict to a maximum of $300,000. This make no sense, and takes significant power away from juries.
Earlier this month, the House of Representatives passed legislation that would prevent lawmakers from using public funds to settle their own charges of sexual harassment. But while Congress pats itself on the back, federal legislation remains in place preventing thousands of victims from receiving sufficient justice.
Now, more than ever, as the public has become aware of the systemic harassment that women face, we need to address these caps.