In an employment discrimination case under Title VII of the 1964 Civil Rights Act, such as sexual harassment or 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.”
Although the name is pretty self-explanatory, emotional distress damages can cover a range of harms, including:
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.
Some of the key issues to consider when trying to calculate if emotional distress damages are warranted and in what amount are:
You can also view the FAQ section on How to quantify emotional distress.
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.
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.
You may also show a jury that it should award you emotional distress damages by, for example:
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.
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.
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.
Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.
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