Factors affecting emotional distress damages

Although you, as the plaintiff-employee, are entitled to emotional distress damages under all federal anti-discrimination laws, there is no specific scientific or mathematical formula for calculating the amount of emotional distress damages. In order to estimate what a jury will award in emotional distress damages, you should consider the following factors:

  • How strong your underlying case is, and how bad the defendant-employer’s discriminatory conduct was;
  • The type of emotional distress you suffered, and whether there were any physical signs;
  • How much and what kind of counseling and/or other medical treatment you sought as a result of the defendant-employer’s discriminatory conduct;
  • Whether you had any preexisting injuries that are similar to the injuries you suffered as a result of the defendant-employer’s discriminatory conduct;
  • Whether there were other “stressors” that the defense may be able to argue caused or contributed to your emotional distress (examples include divorce, marital difficulty, death of a spouse or family member, and similar events);
  • The length of time you worked for the defendant-employer before losing your job;
  • The disruption to your personal life as a result of the discrimination;
  • Your credibility;
  • The likeability and believability of witnesses (such as family members, friends, and co-workers); and
  • The defendant-employer and whether the jury is likely to perceive it favorably or unfavorably.

In some cases, you might want to consider getting a psychological or psychiatric evaluation for severe emotional distress. This will create a medical record that will support your claim for emotional distress damages and rule out any factors other than employment-related harassment or discrimination. Note that some defendants and nearly all insurance carriers are hesitant to pay more than the bare minimum amount for emotional distress if you do not have any documentation to support your claim.

If appropriate, your attorney may have you immediately examined by an expert witness, who can give his professional opinion as to your emotional distress. This might be helpful in mediation to add support to your claim for emotional distress.