Issue Briefs

Following is a summary prepared by the EEOC on its policies regarding compensatory damages that can be awarded to federal employees who prevail in complaints brought there.

Types of Damages
Compensatory damages are awarded to compensate complainants for harm or suffering due to discriminatory acts or conduct. Federal employees may seek compensatory damages for discrimination, but cannot be awarded punitive damages. Compensatory damages consist of either pecuniary or non-pecuniary damages.

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 and 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.

Non-pecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other such intangible losses that are incurred as a result of the discriminatory conduct. 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. Emotional harm may include such things as 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. Non-pecuniary damages may also be awarded if an individual experiences damage to professional reputation or damage to interpersonal relationships.

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 harm or injury was caused by the unlawful discrimination. 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.

While pecuniary damages can be proven with evidence such as bills and receipts, evidence required to prove non-pecuniary damages (i.e. emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy, 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. To properly explain the emotional distress, the Commission reasoned that the statements 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 evidence linking the distress to the unlawful discrimination was necessary. The Commission has found, however, that evidence from a health care provider is a not a mandatory prerequisite for recovery of compensatory damages for emotional distress.

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 deteriorated as a result of the discriminatory conduct, the additional harm may be attributed to the employer. 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.

When determining the amount of a compensatory damage awards it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. An award of compensatory damages cannot be punitive in nature. Though different methods of computing damage awards may be appropriate in certain cases, generally, the method for computing non-pecuniary damages should be based on consideration of the severity of harm, length of time and nature of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm. The Commission also strives to ensure that awards are not monstrously excessive standing alone, or the result of passion or prejudice.