Tips from the Trenches

Compensatory Damages: Key Questions the Commission is Sure to Analyze

Dec 9, 2019 10:46:20 AM / by Deryn A. Sumner, Esq.

Every year, the Commission issues dozens of decisions where the main issue on appeal is whether the award of non-pecuniary compensatory damages to the complainant is too high or too low.

Sometimes, the Commission is reviewing awards determined by an agency, charged with issuing a Final Agency Decision. Typically, this is after the Commission has found discrimination in an earlier decision and sent the case back to the agency for a determination on remedies. Or, more rarely, where the agency has found discrimination in its own Final Agency Decision and then determined the appropriate amount of damages.

Alternatively, the Commission is addressing awards issued by its own Administrative Judges, who typically have the benefit of accepting live testimony from the complainant, family members, friends, co-workers, or even medical care providers about how the agency’s discriminatory conduct impacted the complainant’s home life, health, emotional well-being, finances, and relationships with others.

Whether reviewing a decision from an AJ or the agency, there are three key questions the appellate attorney writing the decision for the EEOC will consider when reviewing whether an award of non-pecuniary compensatory damages needs adjustment.

  1. What evidence links the agency’s actions to the harm alleged by the complainant? Although complainants are typically able to identify the bad stuff going on in their lives, they have a harder time showing the nexus, or connection, between the agency’s actions and the harm.
    Very few of us are lucky enough not to have any kind of stressors going on in our lives, whether it be health concerns for ourselves or our family members, worries about money, or stress at work other than discrimination. However, in order for a successful complainant to recover for this harm, he or she must demonstrate that there is a link between it and the agency’s actions. This can be done by showing the timing of the harm as it relates to the timing of discrimination, testimony of how someone changed because of the agency’s actions, and evidence that the harm did not exist prior to the agency’s actions.
  1. Does the complainant have medical documentation in support of the claim for non-pecuniary compensatory damages? Although medical documentation is not required in order to receive an award of compensatory damages, showing that a complainant suffered harm severe enough to warrant going to a doctor, including a psychiatrist or psychologist, demonstrates a heightened level of harm that can support a higher award of damages. Note that the Commission has awarded larger amounts where the complainant did not seek medical treatment because of concerns about their security clearance or because they couldn’t afford medical treatment because their discriminatory termination resulted in lack of health insurance.
  2. How long did the harm last? Finally, the Commission will consider the duration of the harm alleged by the complainant as a result of the discriminatory acts by the agency. Note that the Commission is not looking to the duration of the discriminatory conduct itself. Instead, the focus will be on how long the complainant’s claimed emotional or physical harm lasted. Key in presenting an effective claim for non-pecuniary damages is a focus on the details of the harm, when it started, and whether it ended or continues on and is expected to continue.

Topics: federal hr & eeo law training, compensatory damages

Deryn A. Sumner, Esq.

Written by Deryn A. Sumner, Esq.

Deryn A. Sumner, Esq. is a Partner at Gilbert Employment Law, as well as Co-Chair of the firm's Federal Sector EEOC Practice Group. She focuses her practice on representing federal employees and agencies before the EEOC and has worked on hundreds of cases involving claims of employment discrimination on the basis of disability, race, age, religion, retaliation and other bases. She also has experience representing employees and agencies in cases of whistleblower retaliation and adverse action challenges before the MSPB. Ms. Sumner graduated from American University's Washington College of Law in Washington, D.C. While in law school, she served as a Note and Comment Editor on the Administrative Law Review, as well as co-chair of the Labor and Employment Law Society. She also holds a Bachelor of Arts in Political Science from the University of Southern California in Los Angeles, California. Ms. Sumner is the co-author of several books on federal sector employment law including Representing Agencies and Complainants Before the EEOC; Federal Sector Disability Discrimination Law Deskbook; EEO Counselors' and Investigators' Manual; and an annual Consolidated Federal Sector EEO Update.


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