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Volume X, Number 221

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The ABC’s of Emotional Distress Damages in Employment Discrimination and Retaliation Cases

In employment discrimination cases, perhaps the most obvious form of damages is lost pay if the employee is forced to leave the company. But an equally, and in some cases more impactful, remedy is emotional distress damages.

What Are Emotional Distress Damages?

Many laws that prohibit employment discrimination, such as Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA), permit employees to recover money damages for the pain and suffering caused by their employer’s discrimination against them. Emotional distress damages arise most commonly in sexual harassment and hostile work environment claims, but can also be awarded in other types of discrimination claims, including promotion denial and retaliation.

Although the name is self-explanatory, emotional distress damages can cover a range of harms, including:

  • diagnosed psychiatric condition (such as depression or anxiety disorder);

  • sleeplessness;

  • loss of enjoyment of life and mental anguish;

  • reputational harm; and

  • strained relationships with family and friends

To receive emotional distress damages you must show that the employer’s discrimination–rather than some other life event–caused the emotional harm.

How To Prove Emotional Distress Damages

The two main ways to prove emotional distress damages are (1) for the employee (and their friends and family) to testify about how the discrimination caused psychological injury, and/or (2) have a doctor or mental health professional testify about the harm suffered. In general, when higher damages are requested then it’s more likely that testimony from a medical professional will be necessary to support the increased award.

Testimony From The Employee And Their Friends And Family

For emotional distress damages, it’s not necessary to have a doctor or psychologist testify at trial; indeed, an employee does not even have to show that they went to see a doctor, psychologist, or other counselor.

Instead, the jury can hear how the employee has been emotionally affected through their own testimony, as well as the words of their friends, families, and coworkers. Through this testimony, the jury can learn about how the employee has changed and been impacted since the employer’s discrimination, harassment, or retaliation occurred.

For this reason, it’s important to keep as much evidence as possible of the emotional distress suffered, whether it is in journals, emails/texts, etc.

Testimony From Medical Professional Testimony Or Documents

Emotional distress damages can also be proven by, for example:

  • having a treating psychologist, psychiatrist, or counselor testify about the emotional distress;

  • hiring an expert witness to explain how the discrimination harmed one emotionally;

  • presenting evidence of a diagnosis such as depression or anxiety disorder; and

  • demonstrating that medications were prescribed to deal with the mental anguish

As the amount of emotional distress damages sought climbs higher so too does the strength of evidence needed to support that award. Thus, in general, enhanced emotional distress damages can be recovered—and kept on appeal—when medical evidence and/or testimony is present, as opposed to having testimony only from the employee and their friends and family.

When trying to calculate if emotional distress damages are warranted and in what amount, a jury will consider:

  • the severity of the discrimination/harassment;

  • the duration of the discrimination/harassment;

  • the severity and duration of the emotional harm; and

  • whether one sought professional treatment for the emotional distress (from a psychiatrist, psychologist, counselor, etc.)

The Pros And Cons Of Seeking Emotional Distress Damages

When an employee asks for significant emotional distress damages in an employment discrimination lawsuit, they are essentially putting their mental health at issue in the case. This means that the employer will likely try to prove that any mental anguish was actually caused, in whole or in part, by factors besides discrimination at work.

For example, an employer may request information regarding past medical/ psychological history, probe painful life events (like divorce, death in the family, etc.), and/or attempt to show that the severity of emotional harm claimed is exaggerated.

The extent to which a court will allow an employer to obtain these types of information varies from jurisdiction to jurisdiction. And it also depends on the amount of emotional distress damages claimed. When seeking more generalized emotional harm–which usually equals a lower damage award–like sleeplessness, familial strain, and reputational harm, a court may be less likely to allow an employer access to this sensitive information.

Likewise, the amount and availability of emotional distress damages can also be impacted by, for example:

  • Under Title VII, the maximum amount for emotional distress damages is $300,000. However, other federal, state, and local laws may apply to a claim, which do not have this cap on damages;

  • Emotional distress damages cannot be used as a substitute to punish the employer for its actions (punitive damages are designed for that), nor can emotional distress damages compensate for the inevitable stress that is tied to litigating a case;

  • Emotional distress damages are not available in disparate impact (unintentional discrimination) cases or in mixed-motive cases (where the employer had both legitimate and discriminatory reasons for taking an action (for example, terminating employment) and the employer can show the employee still would have been fired even in the absence of discrimination))

Damages for emotional distress caused by employment discrimination serve an important role in remediating unlawful practices and thus should be carefully considered in all appropriate cases.

© 2020 Zuckerman LawNational Law Review, Volume X, Number 212

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About this Author

Eric Bachman, Discrimination Attorney, Zuckerman Law Firm
Of Counsel

Eric Bachman is Chair of the Discrimination and Retaliation practices at Zuckerman Law and has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action, a record-setting Whistleblower Protection Act settlement at OSC, and a $16 million class action settlement against a major grocery chain.  Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important...

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