By: John D. Winer, San Francisco and Paul S.D. Berg, Ph.D. (1), Clinical and Forensic Psychologist, Oakland
I. Introduction
This article will focus on the psychological aspects of emotional distress damages in employment cases. It will not include an exhaustive discussion of the legal theories upon which an injured or terminated worker can collect emotional distress damages. For a detailed discussion of legal theories, see Wrongful Employment Termination Practice, CEB (2).
This article will assume that you have an underlying basis to recover general damages in an employment case. The portions of the article written by John D. Winer will discuss legal strategy considerations in proving and arguing general damages in employment cases, and, sections authored by Paul Berg, Ph.D. will discuss the psychological aspects of employment cases.
LEGAL STRATEGY CONSIDERATIONS (WINER)
II. Litigation Strategies for Establishing Emotional Distress Damages in Employment Cases.
Employment cases, whether they involve public policy violations and/or sexual harassment provide unique issues in proving emotional distress damages. The plaintiff’s attorney, treating therapist, and experts must be careful to properly walk the minefield to avoid worker’s compensation exclusions and maintain a legal basis for recovering emotional distress damages.
The monetary value of most employment cases comes from the jurors potential anger at the employer’s misconduct. Although terminated and sexually abused employees will generally make fairly sympathetic plaintiffs, they rarely suffer from the type of severe emotional distress damage which would cause a jury to award a large general damage verdict in a vacuum. Damages, even general damages, will always somehow be connected to defendant’s misconduct. The best way to work up emotional damages in an employment case is to find and define misconduct on the part of the defendant which caused the emotional distress and which will anger a jury.
Basically, as a plaintiff’s attorney, you want to hit hard on the misconduct of the defendant, and then through the testimony of the experts and the plaintiff and witnesses, give the jurors some underlying basis to give a large general damage award.
III. To Have or Not Have an Expert
In virtually any sexual harassment case, the plaintiff’s attorney must retain an expert witness. The expert must be able to explain how the harassment injured the plaintiff, why the plaintiff stayed in the harassing situation as long as she did and the extent of the plaintiff’s damages.
In sexual harassment cases in which the plaintiff and defendant engaged in something that might look to the outside world like a consensual relationship, plaintiff’s attorney must retain an expert to explain how the power imbalance and the inherently exploitive nature of an employer/employee sexual relationship, make consent difficult.
Do not underestimate the importance of expert testimony to explain to the jury the reason why the plaintiff stayed in the harassing relationship so long, and, took so long to report. In focus groups we have seen that this is a big issue for jurors. The expert must explain the importance of the workplace to the particular plaintiff, the nature of the psychological concept known as repetition compulsion, and, why the plaintiff was unable to escape the situation. Analogies can sometimes be made to battered spouses and other chronically injured individuals who are unable to escape their “tormentor.”
In other public policy violation cases it is probably less important to retain an expert witness. The first consideration should be whether or not the plaintiff has a true mental disorder caused by the actionable misconduct of the employer.
As we all know, just because somebody suffers emotional distress does not mean they are suffering from a mental disorder. If a person is suffering the same type of emotional distress that anybody would suffer under the circumstances, serious consideration should be given to not retaining an expert. If, on the other hand, the plaintiff is seriously debilitated by the wrongful conduct of the employer, then, an expert should be retained to explain, 1) why the plaintiff had the severe reaction, and, 2) the nature of the severe reaction.
Plaintiff’s attorney and, his or her expert should be very careful to make sure that the evidence indicates that the plaintiff is suffering from emotional distress due to the actionable misconduct of the employer, as opposed to the general stress in the workplace which would be worker’s compensation precluded.
In cases in which the plaintiff is not suffering from a severe mental disorder one must perform a risk benefit analysis to determine whether or not to call an expert. The risks are many. The plaintiff’s psychological history will be opened up, evidence of past misconduct on the plaintiff’s part, which would not be admissible for any other purpose could come in on a psychic injury claim. The jury could believe that the plaintiff is overreaching. The same testimony which may go to prove why plaintiff reacted so strongly to the defendant’s misconduct, could, also tend to indicate that the plaintiff was overly sensitive and incapable of working anywhere. Testimony of psychologists is generally looked on negatively by jurors, and, this could rub off on the case.
On the other hand, even in cases in which the plaintiff is not claiming severe psychological disorder, expert testimony can be helpful. In a case with a non-English speaking or inarticulate plaintiff, an expert can do a far better job than the plaintiff of explaining the plaintiff’s distress. Psychological testing can objectify the extent of plaintiff’s distress. In cases in which you believe that a jury will become angry, the psychological testimony may provide a basis upon which the jury can make a large damage award, because you will get the benefit of the doubt that you will need to prevail.
IV. Trial Considerations Before Argument
In most psychological injury cases we are of the opinion that the plaintiff should not be present except when he or she testifies. This rule should probably not be followed in sexual harassment or employment cases unless the plaintiff is suffering from a severe psychological injury.
However, consideration should be given to not calling the plaintiff as the first witness at the trial. The trial should begin with an exploration of the improper conduct of the defendant. If there are other witnesses testifying against the sexual harasser or other defendant, these witnesses should be called first. If there is a work place expert, that expert should be called before the plaintiff testifies and before there is any evidence of psychological injury or emotional distress.
Ideally, the expert psychological witness should testify before the plaintiff. The essential strategic reason for calling the expert first, is, so that the expert can explain the plaintiff, the plaintiff’s behavior, and the plaintiff’s presentation as a witness before the jury judges the plaintiff for themselves. In a sexual harassment case in which there is an issue as to consensuality or why the plaintiff stayed in a harassing situation so long, the testimony of an expert before the plaintiff is essential. In any employment case in which the plaintiff will for any reason make an unattractive witness, an expert should testify first to explain why the plaintiff is angry or other reasons why the jury may not like the plaintiff. Remember, that the focus on the trial must be on the defendant’s misconduct and not the plaintiff’s injury. The plaintiff’s injury should be somewhat understated to maintain credibility, with the recognition that general damages will be connected with the jurors anger and not their overwhelming sympathy for the plaintiff.
V. Arguing Emotional Distress Damages in Employment Cases
It would be a horrendous mistake to attempt to appeal to jurors’ sympathy in a closing argument in a sexual harassment or employment case. The key to arguing emotional distress damages in employment cases is to weave defendant’s misconduct together with plaintiff’s injury. Since the defense will almost never admit liability in an employment case, plaintiff’s attorney will have plenty of opportunity to discuss the defendant’s misconduct. The vast majority of the closing argument should be spent on liability and causation and not on plaintiff’s psychological injuries.
The emotional distress argument itself should focus upon what a job means to a person in our society. The dignity that work provides, the opportunity for people to perform small heroics, and, most importantly, the opportunity work gives people to feel good about themselves.
After emphasizing the unequal position between the profit hungry employer and the salary dependent employee, discuss with the jury the importance of the public policy that defendant violated which will give rise to emotional distress damages. Explain to the jurors the importance to society of whistle blowers. Explain the importance of not discriminating against workers based on gender and race or any other factors.
Then discuss with the jury the importance of plaintiff coming forward. The heroic nature of plaintiff’s actions in risking his or her job to help other workers and society. It is important that the focus is away from the immediate plaintiff who may be unsympathetic and, on society in general. It is important to convince the jurors, even in a general damage argument, that, they are doing themselves a favor by awarding plaintiff a large compensatory damage verdict, not to make an example of the defendant, which would be punitive damages, but rather to insure that a plaintiff is not punished for coming forward.
In all psychological injury cases we focus on the importance of peace of mind and, how, the defendant’s misconduct destroyed that peace of mind. In other personal injury or psychological malpractice cases we ask the jurors to consider the importance of a person’s peace of mind when they are away from work. An argument that we frequently give is that “we all have our problems in life, we all have our travails, we all have our tough days at work, but, if we can enjoy the special moments of life, such as a child jumping on our lap, then, life is worth living.” In an employment case the peace of mind argument must be made in a slightly different way, but it should still be made.
Assuming that the plaintiff is not working, or has not worked for a significant period of time, the argument should focus on the peace of mind that comes from having a job. The knowledge that your bills will be paid, that your family will be taken care of. The dignity of work, and the importance in our society of having a job should be discussed. Think of the different way that we think of people who don’t work versus the way we think of people who do work.
If the facts are suitable, discuss how the plaintiff’s ability to work was the only thing which held him or her together, despite a poor childhood and despite other problems in his or her life.
In a sexual harassment case argue the importance of working in a non-hostile environment. Discuss why the legislature passed laws mandating that workers have the right to work in non-hostile environments. What does it do to a person’s peace of mind when a work environment becomes hostile? Has the employer responded properly to protect the plaintiff? Has the employer created the hostility himself or herself?
What happens to somebody’s life when their work environment becomes hostile. What happens when they come home angry, depressed and hurt every day. What happens when they have to hold inside their pain. What happens to their family life?
All these factors should be discussed in fairly non-emotional terms, and, should always be tied to the defendant’s misconduct.
In other words, it would be a mistake to argue:
Plaintiff has suffered a catastrophic injury and her life has been destroyed. She can no longer function, she can no longer work, she has fallen apart. She will require psychological care for the rest of her life, and, will never be able to work again.
A much better way to get across the same point would be to argue:
Five women who also been sexually harassed by this man have come forward to testify. Defendant did not listen to their complaints. Defendant sent them away. As a result of that, plaintiff’s peace of mind and her ability to work in a non-hostile environment was also violated by the defendant. When plaintiff reported the harassment, she was ignored, defiled and labelled a trouble maker. As a result of defendant’s misconduct before, during and after the harassment she now has lost the ability to work, the ability to enjoy work and the ability to have the peace of mind that comes from having a job and having some self-esteem.
PSYCHOLOGICAL ASPECTS (BERG)
VI. The Workplace as Warplace
The workplace is a particularly ripe environment for abuse, since there is a degree of psychological captivity involved. The notion that one can simply leave their job if they find it onerous is naive, since inter-job mobility is very limited in poor economic times, and because job relationships carry much more psychological significance than simply a place to earn a living.
American workers spend nearly half their waking lives at the workplace, and aside from the sheer temporal weight, the dynamics of that workplace may be no less complex and powerful than the dynamics of the bedroom. (3)
Outside of romantic and family relationships, the workplace provides the major area for individuals to feel productive, worthwhile, and be able to affirm some sense of competence and skill. Everywhere people look, commercials, the media, the fashion industry, the message all tells them that they don’t quite measure up, and a great appetite is created for feeling worthwhile and purposeful.
The issue of personal identity is obviously a core concept and as such, may be related to the trauma of job threat or loss. When individuals are asked who or what they are, they are as likely to say, “I am a lawyer…carpenter…nurse,” as they are to say “I’m a Protestant … member of the local racket ball club” or other demographic factors which are often less central to their personal definition.
The importance of the workplace is further enhanced by the inherent psychodynamics of relationships that occur there. The very structure of the workplace replicates early childhood experiences, with the various participants playing the roles of parents (supervisors), children (the employee), and siblings (co-employees). It is not surprising to mental health experts that as tensions have increased in that arena, workplace violence has accelerated dramatically.
Aside from the inherent conflicts in relationships that develop on the job, for many people the job provides their primary if not exclusive access to interpersonal relationships. Pure socialization is common, especially for individuals who have not developed significant or satisfying relationships in the limited hours outside of their job. In certain occupational groups, peer socialization becomes the primary form of interpersonal outlet. Police and other public safety agencies are the best example of that. Police officers who develop psychological difficulties and leave their employment, and particularly those who wind up in legally adversarial relationships with their former employers often find themselves completely socially isolated from essentially the only relationships they enjoyed. Another axiom is that the more isolated an individual is in the world-at-large, particularly those with personality disorders, cultural isolationism, recent losses, the more devastating is the loss of their ability to function on the job.
VII. Real, imagined, or fake
The fact that a person develops or displays a psychological disorder coinciding with the fact that they are employed, does not automatically provide a causal relationship between the illness and the job. The proposition Post Hoc Ergo Propter Hoc must be considered. The mere fact that one event follows or coincides with another does not prove that one is caused by the other.
Since the majority of the population is employed, it cannot therefore be assumed that when an individual becomes ill, that the workplace is culpable. There are, however, many reasons why that assumption may be made, rightfully or wrongfully.
The job of the psychologist is to determine whether a person is (a) sick because of work; (b) sick at work; or (c) sick of work.
In the first case, there is direct relationship between the work situation and the development of an emotional disorder. In the second, a person develops an emotional disorder because of a variety of stressors in their life, and the fact that they are working is not responsible, and in fact may be the only salutary aspect of their functioning. In the third, the individual either fabricates an emotional illness and attributes it to the work situation, or already has an existing emotional disorder and mis-attributes it to the work situation, knowingly or not.
The difficult job of the forensic psychologist is to help determine which of these scenarios best explains the person’s condition, either singly or in combination.
It is beyond the scope of this paper to explicate all of the possibilities and combinations. The plaintiff’s lawyer should be just as interested in making that distinction as will the defense attorney when he marshals his own experts and evaluations. It is to the advantage of the plaintiff’s lawyer to find out early in the process whether he or she is dealing with a disaffected worker looking to lay blame for their misery on the job or whether there is in fact a psychologically toxic process which has caused their client to become emotionally ill.
VIII. The Reasonable Standard
The court in Ellison v. Brady (9th Circuit, 1991) 924 F.2d 872 created the “reasonable woman” standard to avoid jurors applying apparently the more lenient “reasonable man” standard. In other words, while most men might not be offended by an off-color joke, the instruction to the jury is whether or not the typical woman might be.
The court could not foresee the emergence of men as victims of sexual harassment, either by other men or by female supervisors. In order to cover such situations, perhaps it is necessary to invoke a new standard, such as the “reasonable victim” standard.
IX. Evaluation of the Client
A full and early evaluation of the client is critical, both for determining the viability of the case as well as the future conduct of the case. We deal here with so-called invisible injuries, broken hearts, wounded spirits, destroyed egos, dashed hopes and not the easily articulated fractures seen in radiographic studies.
While psychic damages are more complex and more difficult to prove, they are nonetheless more vicious and intractable than physical injuries.
If the attorney can show that there has been willful or malicious conduct by a perpetrator, or even disinterest and negligence by management, jurors can be educated as to how devastating that is and make awards appropriate to the damage.
X. Most Typical Illnesses
The most typical psychological illnesses suffered by emotionally injured workers are the various forms of either depressive or anxiety reactions. As a general rule of thumb, most employees show symptomatology of anxiety reactions during the time that they are experiencing harassment, and subsequently develop depressive reactions when they are no longer working.
The anxiety states are more prevalent during the ongoing process because the person is still engaged in the struggle to remedy their situation, is still suffering from the anticipation of further assaults on their ego, and are still in a state of alarm and vigilance and psychological combat. Once they have been rendered disabled or work-terminated, a more insidious process ensues involving feelings of inadequacy, and other vegetative symptoms of depression. They have gone from being psycho-active to psycho-inert. In the earlier anxiety-while-working stages, the more prevalent symptoms will be sleeplessness, somatic expressions, irritability, hyperactivity, work dread, impatience, anger, etc. Naturally these two periods are not distinct and there can be significant overlap of symptomatology .
The development of an actual psychosis in relationship to a job experience is extraordinarily rare, and when seen can usually be traced to an ongoing insidious process that has waxed and waned over the years, as opposed to a single episodic break.
Similarly, Post-Traumatic Stress Disorders are not common reactions to employment situations. This is a diagnosis often misplaced and should be reserved for the dramatic employment situations which include physical assault, rape or other dramatic situations which do in fact represent specific threats to the person’s life or physical safety. It is not an accurate diagnosis to make because someone’s livelihood has been threatened, or because they sometimes have dreams about their hateful employers, or because they are upset and anxious. Other diagnoses are more apt and descriptive. Inevitably your experts will be referring to the Diagnostic and Statistical Manual for their diagnosis. It is important for the attorney to be very familiar with the criteria as set out by this “psychological dictionary” in order to better understand the elements of the diagnosis.
The diagnosis of personality disorder is common in the evaluation of employment-damaged patients, typically more so by Independent Medical Examiners. Experienced plaintiff’s lawyers are not always dismayed by such diagnoses and convert the diagnosis to a “thin skull” explanation of damages.
XI. Evaluation and Treatment
Earlier we discussed the legal advantages to early evaluation. More important, psychological intervention for treatment purposes should be given the highest and earliest priority. Conditions left untreated become more difficult to treat. Workers, particularly blue collar workers and other occupational groups are often resistant to the notion of psychological therapy because it implies a weakness, craziness, and essentially an admission of guilt. The responsible attorney must be careful in trying to work with their clients to overcome such resistance. A working relationship with treating psychologists will make it much easier to discuss such issues and assist the attorney in preparing his or her client for such consultation.
XII. Vocational Issues
In sending a client for psychological evaluation, vocational questions are often overlooked, both in the referral as well as in the evaluation.
Whereas it is clear in significant physical injuries that the client requires a vocational assessment to determine what other kind of work they can be trained for, vocational evaluations are often overlooked in psychological injury cases. For example, if a worker can no longer return to his/her chosen field because of psychological inability to deal with that specific industry, alternative occupational directions may be the most practical choice. This is particularly true in “blackballing’ cases or in closed industry situations.
A psychologist who is trained in vocational assessment may be able to suggest alternative occupations for which the client is emotionally and aptitudinally suited. This kind of evaluation may be equally valuable for defendants’ counsel, as it can help to mitigate damages by moving the plaintiff out of a situation of potentially lifelong disability.
1. Dr. Berg is a psychologist in private practice in Oakland , California . He has expertise in issues of psychological damage and sexual harassment and other personal injury cases.
2. To oversimplify, for an employee to recover emotional distress damages in an employment case, there must be evidence of public policy violations, statutory discrimination violations, intentional infliction of emotional distress, defamation or invasion of privacy. Foley v. Interactive Data Corp. (1988) 47 C.3d 654, is the leading case on this issue. Also, anybody handling an emotional distress wrongful termination case should be aware of potential worker’s compensation preclusions. The leading case discussing worker’s compensation preclusions and employment cases is Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148.
3. Forum, Jan/Feb 1985 Vol. XV Number 1, pp. 8-12.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.