Best Employment Discrimination Attorneys Answers: Do I need medical testimony to get emotional distress damages for wrongful terminations and hostile work environment claims under Title VII? Can I sue my employer for emotional distress caused by race discrimination or sexual harassment? How do you prove emotional distress damages? How much money can you get for emotional distress?
The damages available for unlawful discrimination and wrongful termination are controlled by the specific law that your employer violated when firing or you. There are economic damages (front pay, back pay, wage differential, loss of benefits), which are pretty straight forward. Additionally, non-economic damages for emotional distress can also be awarded.
But emotional distress or non-economic damages for a successful wrongful termination claim will only be available in certain kinds of claims. Specifically, under both Title VII of the Civil Rights Act of 1964 and Ohio R.C. § 4112.02, employees who prevail on claims of discrimination and/or harass based on their race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, and disability are entitled to emotion distress damages. However, emotional distress damages are not available it all claims, such as for violation of the Family and Medical Leave Act (“FMLA“), Fair Labor Standards Act (“FLSA“), Uniformed Services Employment and Reemployment Rights Act (“USERRA“), nor for a claim of Workers’ Compensation retaliation under Ohio R.C. § 4123.90. Claims for age discrimination are a little tricky as the age discrimination in employment act of 1967 (“ADEA“) does not provide for emotion distress damages, but Ohio’s age discrimination statute does, which means that it best for you to consult the law in your state to determine your rights for emotional distress damages in age discrimination cases.
So, what emotion distress damages are available in discrimination cases? The best way our employment discrimination attorneys have found to educate employee clients regarding how emotional distress damages are calculated is by pointing to the form jury instruction given to the jury before they deliberate. It provides:
NONECONOMIC DAMAGES: You will also determine whether to award [employee’s name] non-economic damages for his discrimination and retaliation claims, in addition to any back-pay award. In deciding this amount, if any, you will consider the nature, character, seriousness and duration of any emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life [employee’s name] may have experienced.
That’s it. Not much guidance is given to the jury, who will exercise their collective discretion to determine how much emotion distress was incurred and what it is worth.
I personally used this jury instruction in Kassay v. Niederst Mgmt., Ltd., 2018-Ohio-2057, ¶ 22, 25, 113 N.E.3d 1038, 1046–47, in which the Eighth District Court of Appeals affirmed the jury’s award of noneconomic damages in the amount of $248,900 based on the fact that John Kassay was fired after his employer would not let him wear a brace on his left wrist, which Kassay testified was necessary due to a chronic issue. The Eighth District Court of Appeals held:
R.C. 2315.18(A)(4) defines “noneconomic damages” as “nonpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, [or] assistance, * * * mental anguish, and any other intangible loss.” Here, the trial court’s instructions to the jury, which both parties agreed to, stated that when deciding an amount for noneconomic damages the jury should “consider nature, character, seriousness and duration of any emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life Kassay may have experienced.” … A plaintiff’s own testimony, in combination with the facts and circumstances of a particular case, can suffice to sustain an award of compensatory damages based on emotional distress.
The Eighth District Court of Appeals held that once the employee meets this threshold is present some evidence, the amount should be left to the discretion of the jury, and that such threshold was met in our case:
Kassay testified that after losing his job at Niederst, he felt like “[l]ess of a man” and that he was letting his family down. He testified that the loss of his job and income “caused a lot of arguments * * * because of [the lack of] money[.]” See Klesch v. Reid, 95 Ohio App.3d 664, 676, 643 N.E.2d 571 (8th Dist.1994) (“If lay witness observers can testify about changes they observe, we see no reason why the plaintiff herself cannot testify as to the changes that had occurred in her …”). He testified that his family’s credit was severely impacted, he rarely slept, and his relationships with his daughters suffered because of the time he spent trying to find another job.
Obviously, had the circumstances of the termination been worse, such as the use of racial slurs, sexual harassment or overt discrimination, the damages could be much greater that being fired for not being allowed to wear a wrist brace (or it could be lower depending on the venue and jury). No one knows what a jury may award in each case.
A key case addressing this issue on the federal level, and still binding authority in the United States Sixth Circuit Court of Appeals, which has jurisdiction over federal appeals arising from the states of Kentucky, Michigan, Ohio and Tennessee, is Turic v. Holland Hospitality, Inc., 85 F.3d 1211 (6th Cir.1996). In that case, the United States Court of Appeals for the Sixth Circuit upheld a Title VII award of emotional distress damages for $50,000 against an employer which fired a pregnant employee because she contemplated having an abortion. Id. at 1215-16. The Court of Appeals for the Sixth Circuit held that the employee carries the burden to prove that the employer’s unlawful discrimination, harassment, or retaliation actions caused the employee’s emotional distress. Id. at 1215 (citing Carey v. Piphus, 435 U.S. 247, 263–64, 98 S.Ct. 1042, 1052–53, 55 L.Ed.2d 252 (1978)). Critically, the United States Court of Appeals for the Sixth Circuit expressly held that a “plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden in this regard.” Id. (Emphasis added)(citing Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir.1994). Ending all confusion of the proof needed, the Sixth Circuit plainly and unequivocally held: “It is well settled that Title VII plaintiffs can prove emotional injury by testimony without medical support.” Id. (Emphasis added)(citing Moody v. Pepsi–Cola Metropolitan Bottling Co., 915 F.2d 201, 210 (6th Cir.1990); Williams v. Trans World Airlines, 660 F.2d 1267, 1273 (8th Cir.1981).
Based on this standard, the Sixth Circuit held that the employee met her burden of proof: “Witnesses testified that Turic was extremely upset and frightened after being discharged, and that she ran from the meeting in tears. The Supreme Court in Carey [v. Piphus] instructed that such witness testimony bolsters a finding of emotional distress: ‘Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others.’ Carey, 435 U.S. at 264 n. 20, 98 S.Ct. at 1052 n. 20. Further, Turic testified that she continued to suffer nightmares, weight loss during her pregnancy (an undesirable occurrence often leading to low birth weight of the baby), and excessive nervousness.”
The Sixth Circuit recently affirmed the standard set in Turic in Barrow v. City of Cleveland, 773 F. App’x 254, 265 (6th Cir. 2019), a case where the employee was awarded $55,900 in emotional distress damages after the jury determined that he had been fired in retaliation for reporting and opposing race discrimination in violation of Title VII. In that case, the employee’s only evidence to support an emotional distress award was his testimony that he “really only sleep[s] about maybe two hours a night. Just happened to be always on edge, never having been secure in any position that I really held on the Cleveland Police Department;” and that he “had to see the police psychiatrist a number of months, but, you know, it’s something that you deal with.” The psychiatrist did not testify.
The United States Court of Appeals for the Eighth Circuit further strongly rejected any argument that expert or medical testimony was needed under Title VII to obtain compensatory damages, including emotional distress damages by affirming an emotional distress award of $165,000:
Gopher News’ assertion that Mathieu was obliged to offer expert testimony to justify an award for emotional distress misses the mark. In Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir.1997), we held that “[a] plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden.” Id. at 1065 (citing Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir.1996)). As the magistrate judge recognized, the import of this holding is that the testimony of a medical expert is not a prerequisite for recovery for emotional harm. At trial, Mathieu’s testimony in this regard apparently was effective. … Mathieu lost his job of thirty-four years, was forced to reduce his standard of living, and had become depressed. … [T]hose facts, presented through Mathieu’s testimony, were “more than sufficient to support the jury’s emotional distress award.” … [T]he award was not simply for emotional distress, but was made for a combination of factors including emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.
Likewise based on this standard, the United States Court of Appeals for the Ninth Circuit in DeNieva v. Reyes, 966 F.2d 480, 487 (9th Cir.1992), affirmed a $50,000 compensatory damage award based solely on the employee testifying to having suffered emotional distress, which manifested insomnia, dizziness and vomiting. In Secretary of HUD v. Blackwell, 908 F.2d 864, 872–73 (11th Cir.1990), the United States Court of Appeals for the Eleventh Circuit affirmed a $40,000 emotional distress award where the employee presented testimony concerning humiliation, insomnia and headaches. In Moore v. KUKA Welding Systems & Robot Corporation, 171 F.3d 1073, 1081 (6th Cir.1999), the Sixth Circuit Court of Appeals affirmed a jury award of $70,000 in emotional distress damages in favor of a Black employee who testified that “he was ‘angry’ and ‘upset’ about the jokes and slurs and that he ‘just couldn’t take it anymore,’” and also presented further evidence of he eventually quit his job due largely to his inability to cope with the isolation imposed by his employer after complaining of race discrimination. In Mys v. Michigan Dep’t of State Police, 886 F.3d 591, 603 (6th Cir. 2018), the Sixth Circuit affirmed a compensatory damages award of $210,000 based solely on the employee’s testimony that testified “she suffered from the Department’s response to her sexual-harassment complaints, the insensitive way in which it notified her of her temporary assignment to the Rockford post, and the TRB’s indifference to the circumstances that motivated her fight to remain in the Sixth District,” as well as “that retiring early prevented her from achieving her dream of becoming the longest-tenured female employee of the Department.”
It is important to recognize that the more evidence presented of emotional distress gives the jury more reason to award more damages. To illustrate this point, in Rouse v. Michigan Dep’t of State Police, 2011 WL 3924495, at *5–6 (W.D. Mich. Sept. 7, 2011), an Americans with Disabilities Act (“ADA“) claim, the court held:
[T]he Court concludes that a damages award of $300,000 is not excessive and is fully supported by the evidence. Defendant concedes that a claim of emotional damages may be based solely on a plaintiff’s testimony, but Defendant argues that Plaintiff’s allegations of emotional harm are vague and devoid of specific references to discernable injury to his emotional state. The Court disagrees. Plaintiff testified that he suffered severe emotional distress from being discharged by Defendant after having worked as a Michigan State Police officer for more than thirty years, and he “just felt like they threw [him] out like last week’s trash”. He also testified that the discharge caused him shame to the extent that he was unable to tell his elderly father, who also had been a Michigan State Police officer for many years, what had happened. Plaintiff became depressed and began drinking alcohol.
Additionally, Plaintiff’s wife testified that he suffered severe emotional distress from his discharge and that being a Michigan State Police officer was her husband’s life. Her testimony detailed the change in Plaintiff following his discharge, including that he suffered from depression and that the discharge had negatively impacted their lives and Plaintiff’s emotional well-being: “He’s been depressed. It’s like he’s half of a man. He has no motivation. He just—he just finds it very hard to get up every day. He just doesn’t really want to go on. He [sic] just really sad, depressed, very broken hearted.”
Thus, it is best to paint a picture of how the unlawful conduct truly impacted the employee.
Compare these cases to Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250, 1259 (6th Cir. 1985), where the United States Court of Appeals for the Sixth Circuit reversed an emotion distress award for $10,000 with an instruction to enter nominal damages on remand because “plaintiff’s only proof of emotional harm consisted of his statements that he was ‘highly upset’ about the slurs and that ‘you can only take so much.’ His conduct in complaining to management on a regular basis also demonstrated a high level of concern.” Likewise, in Betts v. Costco Wholesale Corp., 558 F.3d 461, 472–74 (6th Cir. 2009), the Sixth Circuit reversed an award of $10,000 for emotional distress where the employee only testified during trial that the racially hostile work environment felt like “a smack in the face,” and that she “felt something wasn’t right,” but introduced no other evidence she had been affected physically or suffered mental or emotional anguish. In doing so, the Betts Court held that “generalized comments are not sufficient to support an award for emotional distress.” Id. at 473.
More recently, in Dingus v. Tennessee Dep’t of Safety, No. 16-6520, 2017 WL 4574623, at *3 (6th Cir. June 23, 2017), the United States Court of Appeals for the Sixth Circuit affirmed a $100,000 award of emotion distress, holding:
a plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden of establishing entitlement to compensatory damages. … Dingus’s testimony concerning the impact of the TDOS’s conduct on his psychological and emotional well-being was limited to an explanation that “it [was] disheartening and [that] it hasn’t been an easy thing.” [H]e did not testify during trial that he felt humiliated by the defendants’ conduct or despondent after their attempts to label him a possible terrorist.
As such, the amount of testimony to pass the threshold limit to be awarded emotional distress damages is very low and certainly does not need medical testimony but does need to be met. Given that the threshold line may be subjective from court to court, it is important to identify as many ways — emotionally, physically and socially — in which the unlawful discrimination, retaliation, or wrongful termination impacted the employees life. These are issues that your employment attorney best address with you right from the beginning of the case.
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