Experiencing harassment, bullying, or discrimination can be detrimental to a victim’s mental state. Fortunately, legal relief is available to those who have been severely impacted by these incidents in the form of emotional distress.
Emotional distress is a type of non-economic damage recoverable for significant mental suffering following a defendant’s harmful conduct. Types of mental suffering that fall under the umbrella of emotional distress can include:
- Mental Health Disorders;
- Fear;
- Humiliation;
- Insomnia;
- Headaches; and/or
- Damage to reputation.
Emotional distress may follow a specific “tort” and New Jersey law recognizes two independent emotional distress claims. They are Intentional Infliction of Emotional Distress (IIED), and Negligent Infliction of Emotional Distress (NIED).
This post will focus primarily on the recovery of emotional distress damages from claims of harassment, bullying, or discrimination, such as under the New Jersey Law Against Discrimination. New Jersey courts have long recognized emotional distress damages awarded in cases involving various intentional tort claims.
Under the New Jersey Law Against Discrimination (LAD)
The New Jersey LAD protects many protected classes from discrimination and bias-based harassment in places of employment, housing, and places of public accommodation. In 1990, the New Jersey Legislature amended the LAD to allow for the recovery of emotional distress damages for discrimination claims. These damages are intended to be available to all people protected by the Act.
In discrimination cases under the LAD, which necessarily involve willful conduct, the victim may recover all natural consequences of that willful and wrongful conduct. This includes emotional distress damages arising out of embarrassment, humiliation, and other intangible injuries.
After the 1990 amendment allowing for emotional distress damages, the New Jersey Supreme Court upheld damages for female plaintiffs who brought an action under the LAD for wrongful termination based on pregnancy, even in the absence of expert medical testimony. Therefore, lay (the victim’s) testimony is allowed for recovery where humiliation, embarrassment or indignity are involved. The Court reasoned a less stringent standard of proof for claims under the LAD (as opposed to a tort-based emotional distress cause of action such as IIED) is required because of the special harm caused by discrimination in the workplace. Victims of discrimination, our Courts have decided, should not be limited to emotional distress damages only where they had severe emotional or physical ailments, but they should be able to obtain relief for the mental anguish, embarrassment, and/or humiliation they experienced. Expert testimony is required, however, for an award of future damages for emotional distress, as it must attest to the permanency or reasonable duration of the injury.
Other Instances of Emotional Distress Damages
Emotional distress damages may be awarded in other instances, such as employment and civil rights cases, where the effects of bad acts, like retaliation or other violations of constitutional rights took a toll on the plaintiff’s mental health.
Depending on the circumstances, non-medical testimony may also be sufficient here. The Court allows for lay testimony under “special circumstances” where the harmful conduct was so severe, the further evidence of experts is unnecessary. However, given the subjectivity of emotional distress, expert testimony is often required.
Available Damages in Response to Emotional Distress
In attempt to “make the plaintiff whole again” the fact finder must determine would be adequate damages for the distress endured. Most often decided by a jury, emotional distress damages are typically monetary and based on the nature, character, seriousness, and duration of the distress. For example, in a wrongful termination case, a victim may receive back pay to supplement what they would have otherwise earned.
Although emotional distress is not always obvious, it is a very real consequence of traumatic experiences. Seeking damages for emotional distress is available and can be achieved with an attorney’s assistance.
Makayla Newman is a law clerk at Kates Nussman Ellis Farhi & Earle. She is a rising second-year law student at Rutgers Law School in Camden, NJ. She will be an Associate Editor for the Women’s Rights Law Reporter for the upcoming school year.
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