Seven factors are considered by the Equal Employment Opportunity Commission (EEOC) in determining whether misconduct was committed with malice or reckless disregard:
- the nature and egregiousness of the misconduct; that is, whether it is shocking or offends the conscience;
- the nature, extent, and severity of the resulting harm;
- the duration of the discriminatory conduct;
- the existence and frequency of past discriminatory conduct by the respondent;
- evidence of the respondent’s intent or efforts to conceal the discriminatory conduct;
- the respondent’s actions after receiving notice of its agents’ or employees’ discriminatory conduct; and
- evidence of the respondent’s retaliatory action against the claimant.