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Emotional distress damages in employment discrimination and harassment cases

In an employment discrimination case under Title VII of the 1964 Civil Rights Act, such as sexual harassmentor glass ceiling/promotion discrimination, you may be able to recover money damages that are referred to as emotional distress damages.  Emotional distress damages are a subset of what are commonly called “compensatory damages.”

What are emotional distress damages?

Although the name is pretty 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;
  • strained relationships with family and friends

Importantly, to receive emotional distress damages you must prove that the employer’s discrimination or retaliation–rather than some other event in your life–caused the emotional harm you suffered.

Factors to consider in evaluating emotional distress damages

Some of the key issues to consider when trying to assess if emotional distress damages are warranted and in what amount are:

  • the severity of the discrimination/harassment
  • the duration of the discrimination/harassment
  • the severity and duration of the emotional harm
  • whether you sought professional treatment for the emotional distress (from a psychiatrist, psychologist, counselor, etc.)

How do I prove emotional distress damages in an employment discrimination case?

You can recover compensatory damages for emotional distress so long as you support the claim with competent evidence.  So, for example, if you testify about how the discrimination caused you emotional injury, that can be sufficient without any medical evidence or testimony from a doctor.

But, as discussed below, if you are seeking a high amount of damages then you are more likely to need testimony from a doctor or mental health professional to support the greater award.

Proving emotional distress damages through your testimony and from that of friends and family

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

You may instead tell the jury how you have been emotionally affected through your own testimony, as well as the words of your friends, families, and coworkers. Through this testimony, the jury can learn about how you’ve been affected and changed since the employer discriminated, harassed, and/or retaliated against you.

For this reason, it’s important to keep as much evidence as possible of the emotional distress you suffered, whether it’s journals, emails/texts, etc.  Your attorney will likely want to work with you to explore other types of evidence, including, among other things, written statements from family members and friends about how you have been acting and how you’ve changed since the discrimination occurred.

Proving emotional distress damages through medical evidence and testimony

You may also show a jury that it should award you emotional distress damages by, for example:

  • having your treating psychologist, psychiatrist, or counselor testify about the emotional distress;
  • hiring an expert witness to explain how the discrimination harmed you emotionally;
  • presenting evidence of a diagnosis such as depression or anxiety disorder;
  • demonstrating that you were prescribed medications to deal with the mental anguish

As mentioned above, as the amount of emotional distress damages you seeks climbs higher so too does the strength of evidence you need to support that award.  In general, therefore, you will be able to recover (and keep on appeal) enhanced emotional distress awards when you present medical evidence and/or testimony, as opposed to having only your own testimony or the testimony of friends and family.

Potential consequences of asking for emotional distress damages

When you ask for significant emotional distress damages in your employment discrimination lawsuit, you are putting your mental health at issue in the case.  This means that if you request emotional distress damages as part of your employment discrimination, sexual harassment, and/or retaliation lawsuit, your employer will likely try to prove that your mental anguish was actually caused, in whole or in part, by factors besides discrimination at work.

To illustrate, your employer may request information from you regarding your past medical/psychological history, probe painful events in your life (like divorce, death in the family, etc.), and/or attempt to show that you are exaggerating the severity of emotional harm claimed.

Similarly, if you have a pre-existing medical or psychological condition, your employer will probably want to delve into that as well.  In certain cases, the employer may also seek to have an Independent Medical Exam performed on you by an outside medical professional.

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

Other emotional distress damages issues to consider

  • Under Title VII, the maximum amount you can recover for emotional distress damages is $300,000.  You may, however, be able to sue under different federal, state, and local laws that 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 you for the inevitable stress that is tied to litigating your 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 against you (for example, firing you) and the employer can show it still would have fired you even in the absence of discrimination);

Given the often complex nature of emotional distress damages, it’s important to do two things as early as possible in your case:  (1) preserve any evidence that tends to show the emotional harm you have suffered, and continue to suffer, including journals, emails, texts, and consider friends and family who may be good witnesses on how the discrimination has impacted you; and (2) consult with an experienced employment attorney who can help you navigate these legal and evidentiary issues.

© 2019 Zuckerman Law

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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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