KPWH Attorney Cathy Harris was interviewed on the subject of mental health and the legal system. Ms. Harris discussed the strain that sexual harassment places on victims, whether in the workplace or on a college campus. You can watch the interview with Jennifer Mann, LCSW by clicking here.
If you have been a victim of sexual harassment, please consider contacting KPWH for a free consultation to discuss your legal options.
Proving you were subjected to discrimination or retaliation is only the first step in obtaining relief. Once you have proven your case, it is critical to present evidence of your non-pecuniary damages for your mental pain and suffering. Non-pecuniary compensatory damages are one of the main ways that the EEOC can compensate you for an agency’s discriminatory actions. While having a doctor or other expert testify about your damages can be helpful, it is not necessary. The EEOC has stated that it focuses on three main factors in determining an award of non-pecuniary compensatory damages: (1) duration of harm; (2) extent of harm; and (3) consistency with amounts awarded in similar cases 1 deposit casino canada.com.
With respect to the duration of the harm, the focus is on the length of time that a complainant suffered from the harm, and not the duration of an agency’s discriminatory or retaliatory actions. The EEOC has explicitly noted that a complainant who has suffered from severe depression for one year has obviously endured more damage than a complainant who has suffered severe depression for two months. EEOC Notice No. N915.002 (July 14, 1992). Indeed, if you have subjected to a discriminatory action, for example sexual harassment, the impact of that will likely last long after the sexual harassment has ceased. In evaluating a claim for compensatory damages, the EEOC looks at the length of the period that a complaint has suffered and/or is likely to continue suffering harm as a result of an agency’s discriminatory actions. A doctor’s prognosis that the harm is likely to a certain amount of time into the future can be considered as evidence of the ongoing harm. It is also helpful to establish the time periods you have experienced different symptoms as a result of the discrimination or retaliation as not all symptoms are experienced for the same duration.
The severity or extent of the harm suffered by a complainant also impacts the award of compensatory damages. The EEOC has explained that the extent, nature, and severity of harm must be considered when determining an award for non-pecuniary damages. See Glockner v. Dep’t of Veterans Aff., EEOC No. 07A30105 (Sept. 23, 2004). EEOC cases explore how severe the harm was, and whether the harm was persistent and long-lasting, or transitory or intermittent. As the EEOC’s “Enforcement Guidance” puts it, when determining extent of harm, “consider, for example, whether the harm consisted of occasional sleeplessness, or a nervous breakdown resulting in years of psychotherapy.” This factor focuses on the individual symptoms experienced and the severity of each of those symptoms.
A diagnosis of anxiety or depression or other similar condition, or a exacerbation of a pre-existing diagnosis, would support an award of damages. But with or without a medical diagnosis, other types of harm also support an award of compensatory damages. Frequently observed symptoms of stress and/or anxiety in these types of cases are stress related physical ailments (such as headaches or stomach ailments), weight gain/loss, shortened tempers, frequent tearfulness or crying, panic attacks, distancing oneself from friends and family, sleeplessness, nightmares, and decreased energy. The details of how often you experience such symptoms or how severe the symptoms are can also impact an award. Testimony by friends and family about the observable changes in behavior can bolster a complainant’s testimony and further support an award for damages.
KPWH’s attorneys are experienced at developing cases in support of compensatory damages and helping you articulate the full extent of harm you have experienced as a result of discrimination, retaliation, and/or harassment. For a free consultation about your case, please contact us.
The COVID-19 pandemic has accelerated the general workplace trend toward greater use of telework (also known as telecommuting, work from home, tele-work, or remote working). After the expiration of social distancing mandates, some employers may choose to extend the availability of telecommuting for their workers. After all, there are many valid business reasons for employers to expand telework as an option. But workers need to be aware that telecommuting is not a legal right, except in very limited circumstances.
In the field of employment law, it always a good idea to remember that worker rights are limited. Employers are very much aware of this fact. The bottom line is this: if an employer does not want to provide telework as an option, then the law generally supports the employer’s decision.
But there may be a legal right to telework if an employee with a disability needs telework as a reasonable accommodation. As explained by the EEOC, “Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.” (EEOC Guidance, “Work at Home/Telework as a Reasonable Accommodation,” Feb. 3, 2003.)
But what about requesting telework as an accommodation in connection with COVID-19? If an employee has a documented medical condition making the employee particularly susceptible to infection, and if the job in question can be successfully performed remotely, many employers are likely to provide telework as a temporary accommodation during the pandemic, especially if the request is supported by a note from the employee’s doctor. There are likely to be other medical situations where telework provides a reasonable accommodation during the pandemic.
Telework as a reasonable accommodation is well established legally, but not all employers will quickly agree to such a request. For example, the employer may express doubt that the employee has a disability. Or the employer may claim that the essential functions of job in question cannot be performed remotely. And it is very common for employers to require medical documentation to support a requested disability accommodation.
Workers with a medical issue may want to explore with their doctor and their employer the possibility of telework as an accommodation. An additional resource for employees and employers is the Job Accommodation Network (JAN), which provides free consultations to assist with accommodation issues. JAN provides a specific webpage with discussion of telework issues.
