Sometimes the complainant could suffer for weeks, months, or years until the claim is accepted and awarded. The final agency decision could take years.
Without the complainant being moved away from a hostile work environment, or if the agency retaliates for prior eeo activity, the pain and suffering can last a long time. How much can the complainant be awarded for such damages? What if the complainant committed suicide because of sexual harassment that included fondling?
The Hard and Fast rule holds no water at the EEOC or the Agency
The Commission has held that there are no “hard and fast” rules governing the amount of non-pecuniary damages to be awarded. Robison-Matheson v. Social Security Admin., EEOC Appeal No. 01961574 (Oct. 23, 1998).
The Commission has explained, however, that “non-pecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible and should take into account the severity of the harm and the length of time that the injured party has suffered from the harm.” Smith, EEOC Appeal No. 01943844 (citations omitted). For a proper award of non-pecuniary damages, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. Id. (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC V. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993)).
So what we’ve been presented is several contradicting citations. Where the hard and fast rules suggest that you should be awarded the maximum if you deserve it, whereas the next citation says wait a minute. What have we awarded complainants in similar cases?
The Commission has awarded non-pecuniary compensatory damages in several cases somewhat similar to complainant’s case.
Similar cases related to suffer with Sleep disturbances
Robison-Matheson, EEOC Appeal No. 01961574 ($2,000 in non-pecuniary damages for reported sleep disturbances, lack of appetite, and tearfulness, caused by agency’s undermining of complainant’s authority with complainant’s staff)
Similar cases related to suffer with emotional stress
Pruette v. United States Postal Serv., EEOC Appeal No. 01951567 (Mar. 10, 1998) ($3,000.00 in non-pecuniary damages for emotional distress caused in part by harassing statements by EEO Counselor interfering with EEO process)
Similar cases related suffer with migrains
Young v. Social Security Admin., EEOC Appeal No. 01955120 (Jan. 30, 1998) ($5,000.00 in non-pecuniary damages for migraines, emotional distress, humiliation, embarrassment caused by non selections)
Similar cases related to suffer with weight loss
Pailin v. Department of Defense, EEOC Appeal No. 01954350 (Jan. 26, 1998) ($2,500 in non-pecuniary damages for weight loss, fatigue, lack of motivation, sadness, and diminished self esteem caused in part by discrimination)
Similar cases related to suffer with frisking
DeMeuse v. United States Postal Serv., EEOC Appeal No. 01950324 (May 22, 1997) ($1,500.00 in non-pecuniary damages for emotional distress from frisking constituting a hostile environment).
After considering the nature and severity of the harm to complainant, the actual duration of the harm, and limiting the award to those damages caused by the discrimination in claims 1, 2, 3, 4(a), and 4(c), we find that complainant is entitled to an award of non-pecuniary damages in the amount of $2,000.00.
The Commission finds that such an award is consistent with other awards as cited supra, is not “monstrously excessive” standing alone, and is not the product of passion or prejudice.
While the above examples are very different, the one commonality is the severe undervaluing of the claims, and maybe even the mis-labeling of the offense against the complainant. In the above example of frisking in the DeMeuse v. USPS citation, are they referring to physical sexual advances, fondling and inappropriate behavior by co-workers? If this is the case, they cannot possibly use this as a similar case to give a small award.
This also proves that hostile work environments awards must be monetarily increased, and equal to the punishment and jail time that the employee would receive for sexual harassment/raping a co-worker.
