New standard for employees seeking punitive damages in discrimination claim

In Massachusetts, when plaintiffs bring discrimination claims against their employers, they are able to recover compensatory damages as well as punitive damages, in certain circumstances. Compensatory damages are those that are meant to make the plaintiff whole, such as front and back pay awards.

Punitive damages are not related to the plaintiff's actual loss, but are awarded when the defendant's conduct is determined to be so blameworthy, that an additional sum should be awarded as punishment. Under recent guidelines handed down by the Supreme Judicial Court, employees hoping to receive punitive damages are going to have to meet a new legal standard.

Under the old standard, punitive damages could have been awarded for conduct that is deemed to be outrageous, because of the defendant's evil motive, or his reckless indifference to the rights of others. It used to be that an award of punitive damages required a determination of the defendant's intent or state of mind.

Now, to sustain an award of punitive damages, a finding of intent alone is not sufficient. An award of punitive damages requires more than just a knowing violation. Punitive damages may be awarded only where the defendant's conduct is truly outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation.

In making an award of punitive damages, courts will have to decide whether the award is needed to deter such behavior in the future, or whether the defendant's behavior is so egregious that it warrants public condemnation and punishment.

In determining whether the defendant's conduct was so outrageous or egregious to warrant punitive damages, courts will consider all relevant factors surrounding the wrongful conduct. Such factors may include:

• Whether there was a conscious or purposeful effort to demean or diminish a protected class (or the plaintiff, because he or she is a member of a protected class)


• Whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise


• The actual harm suffered by the plaintiff


• The defendant's conduct after learning of the initial conduct and that such conduct would likely cause harm to the plaintiff


• The duration of the wrongful conduct and any concealment of that conduct by the defendant.

This list, however, need only be used for guidance, and there may be other factors that a court will consider when deciding whether punitive damages are appropriate.