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EEOC Awards For Pain And Suffering Have Reached An All-Time High

The National Law Journal, November 29, 2011

By Jenna Greene

The U.S. Equal Employment Opportunity Commission feels federal workers' pain - and will pay them for it. A review of commission decisions during the past decade shows an uptick in awards for emotional distress. In fiscal year 2011, the agency awarded discrimination victims an average of $106,000 for emotional pain and suffering, an all-time high. Five years ago, the average award was $84,477, according to the EEOC, and in 2002, it was $67,484.

The EEOC is tasked with reviewing appeals from federal workers who allege that they suffered discrimination in their government workplaces. The agency on appeal has often unilaterally increased workers' original emotional-distress awards, sometimes substantially. A fired U.S. Postal Service worker who lost custody of his daughter and was reduced to sleeping in his car, for example, was originally awarded $15,000 for emotional distress. The EEOC in 2010 increased the amount his agency must pay him II-fold to $165,000.

"We try to remedy the harm that's suffered by the employee, and to figure out what's necessary to compensate for nonpecuniary pain and suffering," said Dexter Brooks, who is director of the EEOC's Federal Sector Programs in the Office of Federal Operations, which oversees the appeals process.

In another recent case, a Justice Department employee who was discriminated against based on sex and race was awarded $40,000 by the EEOC to cover her out-of-pocket losses - and another $150,000 to compensate for a long list of emotional-distress symptoms, including depression, anxiety, insomnia and nightmares. The EEOC increased her award by $110,000. In another example, a Navy employee who was subject to unlawful reprisal and forced to resign suffered from problems such as weight gain, stomach distress, withdrawal, increased alcohol use and bouts of anger. An administrative judge gave him $15,000 for emotional distress, which the EEOC in November 2010 bumped up to $115,000.

THE TREND IS UP

The reason for the rise in emotional-distress awards during the past 10 years is not entirely clear. It's worth noting that the universe of cases is small - about 50 a year on average - and the increases have not come in lockstep year after year (in 2003, for example, the average award was $92,704, only to drop $10,000 a year later). But overall, the trend is unmistakably up. Brooks in an interview said, "We look to the same precedents as the federal circuits" in determining awards. But in a follow-up statement, the EEOC said, "There has been no attempt to make the awards comparable to those in the district court. "

Is it ideologically motivated? The agency isn't saying, but in fiscal year 2008 - the last year of George W. Bush's administration - the average award was $89,173. A year later, under Barack Obama, the average award increased 14 percent, to $104,000.

The nation's 3.8 million full-time and 1.5 million part-time federal workers have a choice of pursuing workplace discrimination claims in district court (after an initial internal process) or administratively, either before the agency where they work or in front of an EEOC administrative judge. Final agency decisions as well as those issued by EEOC judges can be appealed to the EEOC's Office of Federal Operations.

The agency's five politically appointed commissioners have little direct involvement in the process. "The commissioners have delegated to the Office of Federal Operations adjudicatory authority, with most federal sector appeals cases being decided" by the office, an EEOC spokeswoman wrote in an e-mail.

Punitive damages in any forum aren't allowed against the federal government, but employees can pocket up to $300,000 for emotional distress. Federal court juries in cases between private parties have handed out $300,000 emotional-distress awards (upheld by courts of appeal) a handful oftimes, but the EEOC has yet to give anyone the maximum. Still, it's getting close, said Joshua Bowers, a Silver Spring, Md.-based solo practitioner who specializes in representing federal workers and has researched EEOC awards extensively. According to Bowers, half of all EEOC awards in excess of$150,000 have been issued in the past four years.

"People used to laugh when you'd talk about bringing a serious discrimination case to the EEOC," he said. "The commission is moving aggressively to catch up with jury verdicts so equal justice can be obtained .... Intentionally or not, the commission is sending a clear signal that they're reading the same court of appeal decisions as the rest of the bar is reading."

This article is reprinted with permission from the November, 29 edition of The National Law Journal. $copy; 2011 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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