THE RANGE OF EMOTIONAL DISTRESS COMPENSABLE

UNDER ANTI-DISCRIMINATION LAWS

Robert S. Mantell

Employment lawyers typically think of damages for emotional pain and suffering in a short-hand manner—“emotional distress.” Typical jury verdict forms contain a single blank for emotional distress damages, and jury instructions often lack specific definition of what types of discomfort and suffering are compensable. However, the actual range of recovery for such personal injury is as wide as the range of human feeling. Our clients should be entitled to recover for the entire negative impact on their psyches, caused by discriminatory conduct.

Provided below is a list of some of the types of emotional distress upon which damages may be awarded. Review of such a list may be important for a number of reasons:

1. It may be possible to have the judge instruct the jury on various types of emotional reactions that could be considered in fashioning an emotional distress award. See Carter v. Commissioner of Corrections, 43 Mass. App. 212 (1997) (emotional distress jury instruction stating “in that category we consider shock, anxiety, embarrassment, mental anguish resulting from the discrimination"). Thus, we can try to have the judge sensitize the jury as to which emotions they should concentrate on in their assessment of damages.

2. It might even be possible to get separate blanks on the jury verdict form for each type or each aspect of emotional distress which is important in the case. The Civil Rights Act of 1991 permits recovery for "emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of life.” 42 U.S.C. § 1981a(b)(3). Such strong statutory language may assist plaintiff’s arguments to increase the number of verdict form blanks in which this type of damages may be awarded.

3. Consideration of the various types of emotional distress may help open up areas of inquiry and self reflection for plaintiffs who are uneasy speaking about the subject. Sometimes it is easier for people to define their feelings when provided a list of various categories.

4. Finally, it should be recognized that sometimes plaintiffs can only describe their emotional distress in the broadest of terms. When a case is before an Appellate Court, the plaintiff’s demeanor at trial is only a remote memory. The transcript will not reflect the depth of emotional pain experienced by the plaintiff, and it will not communicate such things as tears, body language and facial expressions. It may be important to be able to cite precedent that a particular kind of feeling warrants recovery of damages.

With these considerations in mind, I hope the following, non-exhaustive list of the range of compensable emotional distress is helpful.

Anger	Kenney v. R&R Corp., 20 MDLR 29, 32 (1998) ($40,000)

Loss of Appetite	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000); Land v. Consolidated Freightways, Inc., 20 MDLR 91, 96 (1998) ($50,000) (loss of appetite and loss of libido)

Anxiety	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (felt anxiety); Nikolsky v. Summit Services Group, Inc., 20 MDLR 126, 129 (1998) ($100,000) (received treatment)

Career	Erewa v. Reis, 20 MDLR 36, 38 (1998) ($50,000) (caused Complainant to leave a field of work she loved and enjoyed)

Trouble Concentrating	Samuelson v. Sungard Financial Systems, Inc., 20 MDLR 197, 204 (1998) ($250,000)

Conduct Not Directed at Complainant	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (may recover for distress caused by conduct not directed toward Complainant)

Confusion	Fijal v. Kentucky Fried Chicken Food Service, Inc., 20 MDLR 45, 48 (1998) ($25,000)

Natural Consequence	Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997) (emotional distress is normal adjunct of being discriminated against)

Crying—Directly From Discriminatory Actions	Samuelson v. Sungard Financial Systems, Inc., 20 MDLR 197, 204 (1998) ($250,000)

Crying—During Hearing	Said v. Northeast Security, 18 MDLR 255, 260 (1996) ($300,000); Cook v. Town of Wakefield Municipal Light Dept., 18 MDLR 253, 255 (1996) ($30,000) (crying on stand); Bergman, 18 MDLR at 147.

Feeling Degraded	Durante v. Eastern Properties, Inc., 18 MDLR 1, 5 (1996) ($125,000) (feeling dirty and degraded, like a piece of property, after being forced to have sex to keep job)

Depression	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (felt anxiety); Nikolsky v. Summit Services Group, Inc., 20 MDLR 126, 129 (1998) ($100,000) (received treatment)

Loss of Enjoyment of Life	Samuelson v. Sungard Financial Systems, Inc., 20 MDLR 197, 204 (1998) ($250,000); Tosti v. Ayik, 400 Mass. 224 (1987) ($275,000 in defamation claim) (deterioration of social life); EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992) (loss of enjoyment of life); “The List” printed in National NELA materials provides a list of hundreds of activities, which may help employees identify the areas of their lives impacted by discrimination.

Exacerbation of Preexisting Conditions	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (exacerbated preexisting mental condition and history of alcohol abuse); Land v. Consolidated Freightways, Inc., 20 MDLR 91, 96 (1998) ($50,000) (preexisting emotional problem); Hurd v. Mass. Port Authority, 20 MDLR 11, 19 (1998) ($15,000) (distress exacerbated by fiancée expecting a child and worries about future); Chanson v. Westinghouse Corp., 17 MDLR 1293, 1300-1 (1995) ($250,000) (exacerbation of Crohn’s disease); EEOC v. AIC Security Investigations, Ltd, 55 F.3d 1276, 1286 (7^th Cir. 1995) (emotional distress of person suffering from illness is “considerably greater than that suffered by the ordinary victim of a wrongful discharge”); Rafferty v. Keyland Corp., 22 MDLR 125 (2000) (other stresses does not preclude $100,000 emotional distress award)

Fear—General	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (feeling intimidated)

Fear—Physical	Love v. Boston Housing Authority, 18 MDLR 249, 251 (1996) ($100,000) (feeling unsafe in own home); Kamara v. GM Properties, 20 MDLR 221, 224-5 (1998) (physical fear causing Complainant to move residence); Erewa v. Reis, 20 MDLR 36, 38 (1998) ($50,000) (terror from violent incident)

Resulting Finances	Durante v. Eastern Properties, Inc., 18 MDLR 1, 5 (1996) ($125,000) (forced to move into a homeless shelter when unable to pay rent after termination); Hurd v. Mass. Port Authority, 20 MDLR 11, 19 (1998) ($15,000) (insecurity about future and career and belief that career was over); Lungelow v. Boston Penal Institution, 14 MDLR 1350, 1362 (1992) ($35,000) (destitute); Tosti v. Ayik, 400 Mass. 224 (1987) ($275,000 in defamation claim) (discharge caused plaintiff to sell two homes, uproot his family, sell furniture, and borrow from relatives); Quint v. A.E. Stanley Mfg. Co., 172 F.3d 1, 14 n. 10 (1^st Cir. 1999) (worries over loss of health insurance)

Frustration	MCAD v. Franzaroli, 357 Mass. 112, 115 (1970)

Headaches	Eng v. American Pie, Inc., 20 MDLR 53, 58 (1998) ($50,000)

Helplessness	Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (feeling helpless and hopeless)

Hopelessness	Land v. Consolidated Freightways, Inc., 20 MDLR 91, 96 (1998) ($50,000) (hopeless about future)

Humiliation	Kane v. Suffolk Co. Sheriff’s Dept., 20 MDLR 135, 146 (1998) (being singled out based on handicap); Eng v. American Pie, Inc., 20 MDLR 53, 58 (1998) ($50,000) (humiliated by jokes concerning Complainant’s lawsuit); Carter v. Commissioner of Corrections, 43 Mass. App. 212 (1997) ($15,000) (embarrassment); Draghetti v. Chmielewski, 416 Mass. 808 (1994) (ridicule by coworkers)

Inconvenience	Hogan v. Bangor and Aroostook R. Co., 61 F.3d 1034, 1037 (1^st Cir. 1995) (wife who had been children’s primary caregiver was forced to work so family could have insurance); EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992)

Job Performance	Hurd v. Mass. Port Authority, 20 MDLR 11, 19 (1998) ($15,000) (unable to approach job with focus and drive)

Loneliness

Nightmares	Guth v. Fradellos, 18 MDLR 229, 231 (1996) ($100,000) (nightmares); Land v. Consolidated Freightways, Inc., 20 MDLR 91, 96 (1998) ($50,000) (suicidal dreams)

Reaction to Pretext	Said v. Northeast Security, 18 MDLR 255, 260 (1996) ($300,000) (endured listening to manufactured explanation of employer’s actions at hearing); Hurd v. Mass. Port Authority, 20 MDLR 11, 19 (1998) ($15,000) (implied accusation that Complainant stole made her feel ashamed and paralyzed)

Reaction to Proceedings	Said v. Northeast Security, 18 MDLR 255, 260 (1996) ($300,000) (cried at hearing and endured listening to manufactured explanation of employer’s actions at hearing); Kenney v. R&R Corp., 20 MDLR 29, 32 (1998) ($40,000) (exacerbation of feelings whenever Complainant faced proceedings before agency); Eng v. American Pie, Inc., 20 MDLR 53, 58 (1998) ($50,000) (humiliated by jokes concerning Complainant’s lawsuit); see Crying—During Hearing, and Inconvenience.

Invasion of Privacy	Said v. Northeast Security, 18 MDLR 255, 260 (1996) ($300,000) (using Complainant’s prayer rug to clean)

Psychological Injury	EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992) (nervous breakdown)

Impairment of Relationships	Wong v. Boston, 20 MDLR 212, 215 (1998) ($40,000) (adverse effect on relationship with wife and children); Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (irritability with wife and family); Eng v. American Pie, Inc., 20 MDLR 53, 58 (1998) ($50,000) (irritable, and trouble getting along with others); EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992) (marital strain); Draghetti v. Chmielewski, 416 Mass. 808 (1994)

Self-Esteem	Hurd v. Mass. Port Authority, 20 MDLR 11, 19 (1998) ($15,000); Kenney v. R&R Corp., 20 MDLR 29, 32 (1998) ($40,000) (self-doubt); Fijal v. Kentucky Fried Chicken Food Service, Inc., 20 MDLR 45, 48 (1998) ($25,000) (doubts of self-worth)

Shock	Carter v. Commissioner of Corrections, 43 Mass. App. 212 (1997) ($15,000)

Sleeplessness	Guth v. Fradellos, 18 MDLR 229, 231 (1996) ($100,000) (insomnia); Samuelson v. Sungard Financial Systems, Inc., 20 MDLR 197, 204 (1998) ($250,000)

Stomach Problems	Land v. Consolidated Freightways, Inc., 20 MDLR 91, 96 (1998) ($50,000); Erewa v. Reis, 20 MDLR 36, 38 (1998) ($50,000) (nausea and diarrhea); EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992) (ulcers, gastrointestinal disorders); Chanson v. Westinghouse Corp., 17 MDLR 1293, 1300-1 (1995) ($250,000) (diarrhea, stomach pains, and exacerbation of Crohn’s disease).

Stress	EEOC Enforcement Policy Guidance No. 915.002 § II(A)(2) (July 14, 1992) (fear of making a mistake at work).

Trust	Erewa v. Reis, 20 MDLR 36, 38 (1998) ($50,000) (caused loss of trust in people); Eng v. American Pie, Inc., 20 MDLR 53, 58 (1998) ($50,000)

Vague Complaints	Guth v. Fradellos, 18 MDLR 229, 231 (1996) ($100,000) (feeling of dread about going to work); Beldo v. University of Massachusetts, Boston, 20 MDLR 105, 113 (1998) ($60,000) (extremely upset); Bruning v. Marriott Hotels and Resorts, Inc., 20 MDLR 20, 27 (1998) (devastated, shocked, and disappointed in employer); Birks v. Holiday Inn, 20 MDLR 33, 36 9 (1998) (felt “really bad,” one of the hardest times of his life, did not feel like a man)

Weight	Hassan v. Boston, 20 MDLR 83, 86 (1998) ($2,500) (gained 40 pounds); Norman, 15 MDLR 1394 ($75,000) (lost 40 pounds)

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