The Equal Employment Opportunity Commission borrows from personal injury law the notion that the wrongdoer “takes his victim as he finds him.” An employee who proves discrimination, therefore, can recover damages for the aggravation or exacerbation of his or her pre-existing condition. To recover these damages, a complainant must prove a causal nexus between the agency’s discriminatory actions and the worsening of symptoms. Once a complainant establishes this connection, it remains difficult for the EEOC to determine the extent to which discriminatory actions exacerbated the condition. See Sellers v. VA, Appeal No. 01964003 (October 3, 2000). Recently, however, the EEOC has been awarding larger compensatory damage awards to prevailing complainants with pre-existing conditions.

For example, in Ellis v. Dept. of Defense, Appeal No. 01A13314 (April 29, 2003), the EEOC awarded $125,000 to the complainant, who suffered from fibromyalgia prior to the agency’s harassment. The complainant submitted substantial evidence, including a statement from her treating physician, that the harassment exacerbated her fibromyalgia, making her unable to do basic activities such as walking and sitting without pain.

In another recent decision, Levy v. Dept. of Veterans Affairs, Appeal No. 01A01561 (May 12, 2003), the EEOC awarded $60,000 to a complainant with pre-existing head and back injuries and depression related to those injuries. At the hearing, the complainant testified and submitted medical records showing that after the agency began harassing her, she gained weight, stopped socializing, stopped exercising, and experienced mood swings. In an older decision, Randle-Harris v. USPS, Appeal No. 01A04769 (2001), the EEOC awarded only $15,000 in a similar case where the complainant suffered from sickle cell anemia. The EEOC acknowledged the complainant suffered emotional harm, but it stated “complainant has not shown the necessary nexus between the medical bills” for treatment one and a half to over three years after complainant’s termination and the earlier incident of discrimination.

While the EEOC’s decisions may show a trend of increasing compensatory damages awards for complainants with pre-existing conditions, the Commission has been consistent in demanding evidence to support large damages awards. Cases with the highest awards all involve complainants who present strong evidence, including medical records, physician statements, and testimony from treating physicians showing a connection between the discrimination and the harm.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **