Compensatory Damages in the Federal Sector: An Overview
By: Nicole M. Thompson
A Brief History
Title VII of the Civil Rights Act of 1964 1 is a powerful tool used to eliminate discrimination in the workplace. Under the Act, courts have the power to issue an injunction against an employer once the employer is found to have engaged in unlawful employment practices. In addition, the statute provides that a court may order “such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay, or any other equitable relief as the court deems appropriate.”2 The protections of Title VII were extended to employees of the federal government in 1972, and the Commission was granted the authority to enforce the prohibition against discrimination in the government through “appropriate remedies.” 3
In 1991, Congress found that additional legislation was required to prevent unlawful harassment and intentional discrimination in the workplace. The Civil Rights Act of 1991 added a new section to the Civil Rights statutes that dramatically changed the damages available in cases of intentional discrimination. Under § 1981A(a)(1), a complaining party pursuing a claim under Title VII, the Americans with Disabilities Act or the Rehabilitation Act could now recover compensatory damages against a respondent that engaged in intentional discrimination.4 Since damages were made available in addition to any relief authorized under § 706(g) of Title VII, the remedies of back pay, front pay and other previously available remedies were not affected. Subsequently, in West v. Gibson,5 the Supreme that the Commission had the legal authority to require federal agencies to pay compensatory damages when they are in found in violation of Title VII.
Types of Damages
Compensatory damages, which are intended to remunerate an individual for harm or injury, consist of two types: pecuniary and non-pecuniary. Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer’s unlawful conduct. Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint. Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses. Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.6
Nonpecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Due to their intangible quality, nonpecuniary losses are more difficult to prove than their pecuniary counterparts. A finding of discrimination does not carry a presumption of emotional harm. There must be proof of the existence, nature and severity of the emotional harm. Examples of how the emotional harm may manifest include sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. The harm may also manifest itself physically, for example the development of ulcers, hair loss and headaches.7 Nonpecuniary damages may also be awarded if an individual experiences considerable inconvenience, damage to professional reputation and loss of future earning capacity. The statute specifically limits awards of future pecuniary damages and non-pecuniary damages to $300,000 for employers of 501 or more employees, and provides that punitive damages are not available against the federal government or a government agency.
Proof of Damages
The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury and proof that the unlawful conduct caused the harm or injury.8 The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency. The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent’s illegal conduct and the complainant’s injury.9
While pecuniary damages can be proven with such evidence as bills and receipts, evidence required to prove non-pecuniary damages (e.g., emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy,10 the Commission described the types of evidence that would support a claim of emotional harm, including a statement from the complainant describing her emotional distress, and statements from witnesses, on and off the job, describing the stress. To properly explain the emotional distress, the Commission reasoned that the statement should include specific information regarding the physical or behavioral manifestations of the distress, duration of the stress and examples of the impact of the distress while at work and while not at work. The Commission also concluded that other evidence linking the distress to the unlawful discrimination was necessary. The Commission has concluded, however, that evidence from a health care provider is a not a mandatory prerequisite for recovery of compensatory damages for emotional distress.11
Complainants with a pre-existing condition are not foreclosed from pursuing a claim for emotional harm. If the complainant had a pre-existing emotional condition and his or her mental health deteriorates as a result of the discriminatory conduct, the additional harm may be attributed to the employer.12 On the other hand, where the complainant’s emotional harm is due in part to personal difficulties that were not caused or exacerbated by the discriminatory conduct, the employer is liable only for the harm caused by the discrimination.13
The Commission’s Enforcement Guidance acknowledges that damage awards for emotional harm differ greatly, and there are no clear rules governing the amounts to be awarded. When determining these types of awards, however, it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. Though different methods of computing damage awards may be appropriate in certain cases, generally, the method for computing nonpecuniary damages should be based on consideration of the duration of the harm and the nature and severity of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm.14 The Commission also strives to ensure that awards are not monstrously excessive standing alone, nor are they the result of passion or prejudice.15
Overview of Nonpecuniary Damage Awards of $100,000 or More
In one of the Commission’s highest nonpecuniary awards, Estate of Nason v. United States Postal Service,16 the complainant committed suicide, leaving a suicide note that blamed the agency for her stress. The Administrative Judge found that the agency had discriminated against the complainant on the basis of disability and in reprisal for prior EEO activity, and awarded $150,000 in nonpecuniary compensatory damages. The evidence in the record included testimony from the complainant’s husband that her work situation caused a loss in her ability to interact with him and their children, and caused feelings of hopelessness and extreme depression. The complainant’s mother testified that the complainant was “extremely depressed and upset on a constant basis.” The Commission recognized that the complainant’s estate did not offer any medical evidence beyond a report issued by the physician who conducted the complainant’s fitness for duty exam. Nevertheless, the Commission concluded that the record disclosed that the agency’s conduct produced far-reaching symptoms of emotional distress, which strained relationships and contributed to the complainant’s decision to end her life.
When the complainant in Franklin v. United States Postal Service17 was denied a request for light duty due to his degenerative knee condition and also denied reassignment several months later, he filed an EEO complaint. The Administrative Judge found that the agency had discriminated against complainant on the basis of disability, and awarded $150,000 in non-pecuniary compensatory damages. The Commission noted that although the complainant offered no medical evidence of his depression, the record did disclose a causal link between the agency’s conduct and the complainant’s emotional distress, which affected his relationships and his personality, and decreased his enjoyment of life. The complainant suffered humiliation at not being able to find a comparable job and experienced such shame and despair that interaction with his family became strained.
In Ellis v. Department of Defense,18 the complainant alleged that she was subjected to a hostile work environment created by her supervisor. The complainant retired approximately one year after her supervisor left the facility. The agency found discrimination on the basis of gender and disability, citing numerous incidents of harassment, including criticism of her work, ridicule of her physical and emotional condition, statements to the complainant that she should kill herself and ostracism in the workplace. The complainant indicated that her existing medical condition (fibromyalgia) was exacerbated by the supervisor’s conduct. The complainant submitted a statement that detailed the changes in her life as a result of the discrimination, which included sleeping problems, destruction of her self-image, financial problems, mental anguish and loss of health. The complainant also revealed that a doctor had diagnosed her with Post Traumatic Stress Disorder (PTSD). Another physician also stated that the complainant’s movement was noticeably restricted, she had grief issues surrounding loss of her health, she had difficulty concentrating and she had feelings of helplessness. The Commission awarded $125,000 in non-pecuniary damages. The Commission took note of complainant’s pre-existing medical condition, but found that the nature, severity, and duration of complainant’s suffering justified the award.
In Hendley v. Department of Justice,19 the complainant alleged discrimination on the basis of sex and retaliation when the agency disciplined her for inappropriate behavior after she raised claims of harassment. The agency argued that it was only responsible for aggravation of the pre-existing condition and that an award for non-pecuniary harm related to complainant’s emotional distress should be reduced by 25 percent due to the presence of the pre-existing condition. The Commission rejected this argument, and concluded that the complainant’s treatment was due in large part to the agency’s discrimination. When the complainant became aware of the agency’s decision to discipline her for the incidents of sexual harassment that she had reported, complainant recounted having an initially severe reaction. Prior to the agency’s decision to discipline, the complainant was receiving treatment for the sexual assault, but had improved to the point that she was ready to resume work. Complainant stated that she became distraught, anxious, depressed and filled with despair. In addition, the complainant became fearful, paranoid, anti-social and suffered from sleep problems. The complainant’s treating psychiatrist confirmed that several of these symptoms were related to inappropriate sexual advances made towards her at work, but the symptoms reoccurred as a result of the agency’s actions. The psychiatrist opined that complainant would require treatment for the rest of her life. The complainant also submitted a statement from a psychotherapist who stated that complainant’s need for continued therapy was due partly to the agency’s actions. In granting a non-pecuniary damages award of $125,000, the Commission took into account that seven years after the agency’s actions, the complainant continued to receive therapy and take medication and was expected to need an additional two years of treatment. The Commission also considered the fact that the complainant’s career pursuits had been reduced.
The complainant in Hughes v. Department of Veteran Affairs,20 alleged that his supervisor sexually harassed him for a period of 15 years, including inappropriately touching and fondling complainant, and threatening and intimidating him in order to prevent him from reporting the harassing behavior.21 The Commission awarded complainant $125,000 in compensatory damages. Evidence in the record consisted of medical documentation that supported the conclusion that there had been emotional harm. The complainant suffered from PTSD, extreme stress, nightmares and depression. The complainant’s doctor listed numerous medications that were prescribed for the physical effects of the harassment. The Commission also found credible the complainant’s assertion that he would require treatment for the rest of his life. In granting this award, the Commission considered the observations of the complainant’s doctors, the evidence of harm sustained, the elapsed and expected period of the harm, the complainant’s diagnosis of PTSD, the sexual dysfunction that the complainant experienced, the failure of his marriage and the continuing social phobias.
In Holland v. Social Security Administration,22 the complainant alleged discrimination on the basis of mental disability (Depression and Obsessive Compulsive Disorder) and reprisal for prior EEO activity. Nearly ten years prior to working for the agency, complainant began receiving treatment for his psychiatric disorders. The complainant, who answered telephones and inputted data into the computers, requested time to perform non-telephone duties for several hours each day as a reasonable accommodation. The agency rejected the complainant’s request as well as the complainant’s subsequent request for use of three hours of leave without pay per day. Upon denial of both requests, the complainant applied for and was granted disability retirement. Relying on medical evidence submitted by the complainant, the Administrative Judge concluded that the complainant experienced a “severe emotional injury” due to his constructive discharge. The evidence consisted of the complainant’s statement and the statements of the complainant’s treating psychiatrist, who confirmed that the complainant experienced feelings of worthlessness and low self-image in the five years following the discrimination. In addition, the Administrative Judge concluded that the granting of $100,000 in nonpecuniary damages was justified by the severity of the harm, which included exacerbation of the complainant’s pre-existing mental disorder, and feelings of rejection, shame and anger, and the duration of the harm, that is on-going for at least five years. The Commission noted that the extent of the agency’s liability was restricted to the additional harm caused by the agency’s illegal conduct. Nevertheless, the emotional symptoms described by the complainant and confirmed by both of the complainant’s treating doctors justified the award.
The complainant alleged discrimination on the basis of reprisal for prior Title VII EEO activity in Leatherman v. Department of Navy.23 Incidents of harassment included a letter of reprimand, humiliation during a staff meeting and criticism concerning a job task. In its decision, the Commission noted that in cases where the Commission has awarded non-pecuniary damages that exceed $40,000, the evidence demonstrated that the “emotional or psychological injuries that resulted from the agency’s conduct either had permanent or substantially long term effects, or were so catastrophic that no inquiry into long-term effects was necessary.” The complainant was hospitalized on two occasions, and took various anti-depressants and psycho-tropic medications for over one year. She stated that she was unable to sleep, experienced suicidal thoughts and was anxious. In addition, the complainant’s psychiatrist diagnosed the complainant’s condition as severe major depression. Noting the serious nature and the duration of the complainant’s suffering, the Commission awarded $100,000 in nonpecuniary damages.
Footnotes
4Section 102 of the Civil Rights Act of 1991 was codified as 42 U.S.C. 1981 and hereinafter will be referred to as § 1981A.
6EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14, 1992) (hereinafter referred to as Enforcement Guidance).
10EEOC Appeal No. 01922369 (January 5, 1993).
11Economou v. Department of Army, EEOC Appeal No. 01983435 (August 5, 1999).
12Enforcement Guidance, supra n.6.
15Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir.).
16EEOC Appeal No. 01A01563 (June 21, 2001).
17EEOC Appeal Nos. 07A00025 and 01A03882 (January 19, 2001).
18EEOC Appeal No. 01A13314 (April 29, 2003).
19EEOC Appeal No. 01A20977 (May 15, 2003), request for reconsideration denied, EEOC Request No. 05A30962.
20EEOC Appeal No. 07A10095 (August 30, 2002).
21Though the harassment spanned a period of 15 years, the Commission assessment was based on the period of November 21, 1991 to 1995 since compensatory damages only became available to complainants after the effective date of the CRA of 1991, November 21, 1991.
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