Emotional Distress Damages – What Are They and Who Can Claim Them?

Written by Jennet Zapata and Galen T. Shimoda

What are emotional distress damages?

In some cases, an employer may be held liable for emotional distress, mental anguish, and other psychological or psychiatric injury an employee suffers as a result of employer wrongdoing. While emotional distress may be more difficult to measure than other financial losses, such as lost wages, emotional distress is real and may also be compensable in certain cases. For example, in a sexual harassment case, a plaintiff may claim symptoms such as headaches, dizziness, vomiting, diarrhea, weight loss, sleep disturbance, teeth grinding, a facial twitch, crying spells, depression, or loss of enjoyment of life as a result of the discrimination that he or she experienced. Some individuals experience humiliation and embarrassment as a result of their work experiences, and this too can constitute emotional distress.

When can someone recover emotional distress damages?

Damages for emotional distress may be recoverable under both state and federal anti-discrimination statutes. For example, the California Fair Employment and Housing Act, commonly known as “FEHA,” permits recovery of emotional distress damages in civil actions for (1) harassment, (2) retaliation, or (3) discrimination because of age, sex, religion, race, national origin, physical or mental disability, medical condition, marital status, sexual orientation or for belonging to other protected categories. Indeed, an employee may recover emotional distress damages if an employer refuses to hire an employee, discharges an employee, or discriminates against an employee, because that employee belongs to a protected category.

An individual may also recover emotional distress damages for other claims, such as (1) wrongful termination in violation of public policy; (2) defamation; (3) fraud or misrepresentation; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress, among others.

How are emotional distress damages measured?

There is no mathematical formula in determining how much one should receive for emotional distress. A jury can make an award for emotional injuries caused by discriminatory conduct or other illegal conduct. In determining an amount, a jury will consider how the employer’s discrimination affected the employee’s physical and mental wellbeing, personal integrity, dignity and privacy, personal and professional reputation, family relationships, and ability to associate with peers and coworkers. A jury will also consider the duration of the emotional injury, and whether that injury was caused or exacerbated by the employee’s knowledge of the employer’s failure to respond adequately to the discriminatory practices. The jury will also consider the egregiousness of the discriminatory practice and attribute a dollar amount to such suffering.

“Garden-variety” emotional distress and the right to medical privacy

At times, an individual who claims to have suffered emotional distress may rely on medical or psychological records to support his or her claim. While using these records is permissible, doing so also waives a party’s right to privacy regarding his or her medical affairs to a large extent. Defense counsel may seek to review medical records to evaluate the level of emotional distress actually suffered by an individual. For instance, if a party claims to suffer a specific injury as a result of the emotional distress, such as clinical depression, post-traumatic stress disorder, or other disabling condition, a court will likely find waiver of the right to medical privacy and order that the employee’s medical records be disclosed. On the other hand, providing documentation of the emotional distress suffered may actually add value to a particular case.

In other instances, a party may only claim to have suffered “garden-variety” emotional distress damages. In doing so, the party consents to limit his or her emotional distress damages to common humiliation and embarrassment caused by a discriminatory termination or other adverse employment action. In such cases, medical or psychotherapy records will continue to remain confidential.

Thus, a party to a lawsuit will generally have to decide whether he or she will make a claim for “garden-variety” emotional distress damages or whether he or she will claim other specific injuries. Every case and every individual is different. Each person must make a determination of whether he or she is comfortable opening the contents of her medical history to all the parties involved in a case.

If you have potential employment law or personal injury claims that you wish to be evaluated, please contact our office.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

Back to Articles