Seven Factors to Prove Malice or Reckless Disregard

Seven factors are considered by the Equal Employment Opportunity Commission (EEOC) in determining whether misconduct was committed with malice or reckless disregard:

  1. the nature and egregiousness of the misconduct; that is, whether it is shocking or offends the conscience;
  2. the nature, extent, and severity of the resulting harm;
  3. the duration of the discriminatory conduct;
  4. the existence and frequency of past discriminatory conduct by the respondent;
  5. evidence  of the respondent’s intent or efforts to conceal the discriminatory conduct;
  6. the respondent’s actions after receiving notice of its agents’ or employees’ discriminatory conduct; and
  7. evidence of the respondent’s retaliatory action against the claimant.

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