3.6 Remedies and Damages

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

3.6 REMEDIES AND DAMAGES

3.601 Introduction. Like the Equal Pay Act, the ADEA adopts the remedial provisions of the FLSA. ¹⁰⁷ The ADEA also provides that

[i]n any action brought to enforce this Act the court shall have jurisdiction to grant such legal or equitable relief as

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may be appropriate to effectuate the purposes of this Act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid . . . wages. ¹⁰⁸

3.602 Back Pay. Back pay is the most common element of damages for an individual who was discharged in violation of the ADEA. In that situation, the individual is entitled to back pay as a matter of right. ¹⁰⁹ Back pay is equivalent to the total amount of compensation that the employee would have received but for the discriminatory conduct.

Although back pay is required, a plaintiff has the duty to try to mitigate any lost wages. ¹¹⁰ What that duty entails depends on the circumstances of the individual case. If a plaintiff does not exercise "reasonable diligence" in looking for other employment, the amount the plaintiff would have earned if such diligence had been used may be subtracted from the back pay total. ¹¹¹

3.603 Hiring or Promotion Orders. B "hiring, reinstatement and promotions" are specifically authorized by the ADEA, that relief is ordinarily granted to prevailing plaintiffs if requested, except in certain circumstances. ¹¹² In some situations, the court will order the hiring or promotion of an individual, even when there is no opening, when the individual who was hired received the job because of the discriminatory practice. ¹¹³

3.604 Front Pay. In some situations, reinstatement or hiring orders will not be either practical or possible (for example, when no vacancy exists or when the litigation has brought about irreparable discord in the relationship between employer and employee). In those situations, the courts will generally

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award front pay until an equivalent form of employment is found by the plaintiff. ¹¹⁴

There is a split in the circuits, however, as to whether the amount of front pay should be determined by the judge or by the jury. ¹¹⁵

3.605 Liquidated Damages. If the plaintiff can prove that the discriminatory practice was willful, the court will award liquidated damages equal to the amount of back pay liability. ¹¹⁶ The plaintiff must show that the employer's conduct was "[knowing] or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." ¹¹⁷ The ADEA has been interpreted to allow employers a "good faith" exception to avoid liquidated damages. ¹¹⁸

3.606 Costs and Attorney Fees. Attorney fees and costs are awarded to successful...