What’s Harm Got to Do With It, Got to Do With It? – Or, Determining Compensatory Damages

By Meghan Droste, July 18, 2018

I apologize/you’re welcome for putting that 80s classic in your heads. It may have been the recent debate in my office about the relative merits of other great 80s artists that made me think of it, but that Tina Turner hit is also somewhat related to the idea of compensatory damages. It’s all about emotions, and broken hearts and how to heal them. Tina Turner’s suggestion seems to be to try to avoid falling in love so that you don’t get your heart broken. Of course, in EEO cases, the harm has already happened. Until someone invents a time machine, we can’t avoid it. What we can do is compensate complainants for the harm. Pecuniary damages are usually straightforward — simply reimburse the complainant for her out-of-pocket expenses — but non-pecuniary damages can be more complicated. How can we really put a price on emotional distress?

Sometimes both the pecuniary and non-pecuniary damages are complicated by preexisting conditions and other factors. The Commission’s decision in Stephanie A. v. Department of Defense, EEOC App. No. 0120161052 (June 5, 2018) lays out some of the important factors to consider. In the underlying complaint, the Commission found the Agency subjected the Complainant to sexual harassment and retaliation. Following the Commission’s first decision, the Agency issued a Final Agency Decision on damages.  The Agency found the harassment “severely affected” the Complainant and exacerbated several health issues for an extended period of time (10 years passed between the initial harassment and the appeal). The Agency determined that the appropriate award was $60,000 in non-pecuniary damages and $3,113.64 in pecuniary damages, along with the restoration of 91 hours of leave. The Complainant appealed the FAD on the grounds that the pecuniary and non-pecuniary awards were insufficient.

In its decision, the Commission noted that “[t]here is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm.”  Although the Commission declined to increase the award to $300,000 as the Complainant requested, it did consider her testimony that she “suffered nightmares, developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux.” The record also contained statements from family members who described the significant impact of the harassment on the Complainant’s physical and mental health. The Commission found the harm was severe and long-lasting, and awarded the Complainant $100,000 in non-pecuniary damages.

The Commission also increased the award of pecuniary damages. The Commission found that the Agency improperly reduced the out-of-pocket expenses by dismissing most of the $50,000 in prescription medications as being connected to chronic conditions that the Complainant suffered from before the harassment. The Agency further reduced the award by considering what the Complainant’s insurance covered for appointments and testing. The Commission found these reductions to be improper.   Although the Agency was correct that the Complainant’s conditions began before the harassment, the Agency failed to consider the evidence in the record that the harassment significantly exacerbated these conditions. The Agency could not avoid compensating the Complainant for the notable increase in prescription medications and appointments just because its actions were not the initial cause of the conditions. The Agency also could not reduce its liability based on insurance payments. As the Commission reiterated, under the collateral source rule, an agency may not reduce pecuniary damages awards based on the portion of the full costs an insurance carrier covers. It must instead pay the full cost of the healthcare.  As a result, the Commission increased the pecuniary damages award to $107,381, over $100,000 more than the Agency’s original award.

In a perfect world, we will prevent harassment from occurring and address it immediately, if and when it does occur. In our imperfect world in which harassment still goes on and complainants are still harmed, be sure to do the math correctly when considering an award of damages. After all, the answer to “What’s the harm got to do with it?” can be a lot. Droste@FELTG.com