Emotional Distress Damages in Employment Discrimination Cases

One of the various types of damages available in an employment discrimination case is so-called “emotional distress” damages, which are a species of “compensatory” damages. Such damages are available under (for example) Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).^[1]Other statutes, such as the Age Discrimination in Employment Act (ADEA), do not provide for emotional distress damages, but rather provide for “liquidated damages.”

In certain cases – particularly where economic damages (back pay & front pay) are low – emotional distress damages may be the critical component of an employment discrimination victim’s recovery. However, damages for emotional distress tend to be more difficult to assess, because they are not amenable to mathematical computation. That said, the courts have issued some guidelines for assessing them.

“Under Title VII, NYSHRL and NYCHRL, a plaintiff’s recovery of damages for mental anguish is limited to compensation for actual and proven injury,” and “[d]amages for emotional distress … cannot be assumed simply because discrimination has occurred.”^[2]Makinen v. City of New York, 167 F. Supp. 3d 472 (SDNY March 1, 2016). That said, “[a] compensatory award for emotional distress in a discrimination action may be based on testimonial evidence alone and is not preconditioned on whether [the plaintiff] underwent treatment, psychiatric or otherwise.”^[3]Makinen v. City of New York, 167 F. Supp. 3d 472 (SDNY March 1, 2016).

Emotional distress damage awards in the Second Circuit are generally grouped into three categories of claims, in increasing level of “severity” (and, hence, dollar value): (1) “Garden Variety”; (2) “Significant”; (3) “Egregious”.^[4]Makinen v. City of New York, 167 F. Supp. 3d 472 (SDNY March 1, 2016).

Below are some examples of emotional distress awards:

• $10,000, on default – Rodriguez v. Express World Wide, LLC, No. 12 Civ. 4572 (RJD) (RML), 2014 WL 1347369 (E.D.N.Y. Jan. 16, 2014) (M.J. Levy) (sexual harassment) (“Plaintiff’s allegations of emotional distress are significant, but are stated as conclusions drawn by plaintiff herself, and do not address the duration of her emotional distress. Based on plaintiff’s submissions and testimony, the unquestionable severity and intensity of the sexually harassing behavior, the brief duration of her employment, and the applicable case law, I find that an award of $10,000 is reasonable to compensate plaintiff for her emotional distress claim.”), report and recommendation adopted, No. 12 Civ. 4572 (RJD) (RML), 2014 WL 1350350 (E.D.N.Y. Mar. 31, 2014) (J. Dearie).

• $30,000, remittitur from $125,000 – MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 561–63 (S.D.N.Y. 2012) (J. Gardephe) (noting, e.g., that there was “no evidence that McMillan ever sought medical or psychological treatment, that he missed work, that he had any difficulty sleeping, that he lost his appetite, or that his alleged emotional distress had any physical manifestation or disrupted other aspects of his daily life”).

• $75,000, jury verdict upheld – Makinen v. City of New York, 167 F. Supp. 3d 472 (SDNY March 1, 2016) (J. Carter) (plaintiff “testified that she suffers from continuing anxiety, depression, restless legs, sleeplessness, and panic attacks as a result of Defendants’ conduct” and “that she had been prescribed anti-anxiety medication to treat her symptoms and that she continues to take the medication.”).

• $75,000, remittitur from $200,000 – Legg v. Ulster County, et al, 2017 WL 3668777 (N.D.N.Y. Aug. 24, 2017) (“Plaintiff … produced only vague testimony regarding her alleged emotional distress. Importantly, there was no testimony from a medical professional or any other person to corroborate Plaintiff’s allegations. Nor did she establish that the medication she took was directly related to the hostile work environment she suffered. Thus, none of the quintessential calling cards of a significant emotional distress claim are present in Plaintiff’s case.”)

• $100,000, jury verdict upheld – Patterson v. Balsamico, 440 F.3d 104, 120 (2d Cir.2006) (upholding the jury’s $100,000 compensatory damages award where “the plaintiff offered testimony of his humiliation, embarrassment, and loss of self-confidence, as well as testimony relating to his sleeplessness, headaches, [and] stomach pains”).