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What information do you have to share to prevail on an emotional distress claim?

An Important Warning About the Downside of an Emotional Distress Claim

How can you evaluate the value of pain and suffering?If you are using our online damages calculator to assess the potential value of your employment discrimination case, you may be intrigued by the idea of emotional distress damages. While plaintiffs can certainly recover a good sum from an emotional distress claim if they provide the fact-finder with clear evidence about how they suffered, there is an important warning about these damages.

Claiming emotional distress damages can make your life, including very private details about you, an open book. How is that? To win emotional distress damages, you must show that your wrongful treatment at work resulted directly in the distress. The company’s lawyer is therefore entitled, by law, to see whether there may have been other factors that contributed to your emotional distress that were not the result of what your employer did.

Let’s take a look at an example of how this might play out.

An Office-Based Sexual Harassment Scenario

For instance, let’s suppose that you got a divorce the year before you were fired. While no divorce is easy, you and your spouse separated amicably. Still, you did suffer some depression for a few months after the divorce was finalized. To treat the depression, you went to see a therapist. She recommended that you keep a journal to process your emotions around the divorce. So, for about six months, you wrote down everything you felt. The therapist also referred you to a psychiatrist, who prescribed you a three-month course of antidepressants.

While it was a rough patch, you got through it. In fact, six months after the divorce, you emerged from your depression and realized you were happier than you had been in years. You threw yourself into work like never before, rediscovering a love for your profession. You began to voluntarily spend longer hours at work.

What Happened With the Boss

Often, you and the new CEO were the last two left in the office at the end of the day. Sometimes he would ask you out for a drink, which you happily accepted.

You thought this was growing into a strong professional relationship. Your boss thought it was growing into something else. He soon started telling you dirty jokes. Because you weren’t a prude, you laughed. But then he started sending you porn. That was not so funny.

At first, you tried to just ignore it. Things were going really well at work, and you didn’t want to jeopardize your job. Then he invited you to the social media platform Snapchat, where users share pictures that are automatically deleted after a short time. In hindsight, you know it was dumb to join, but at the time, it seemed fun. Then he started sending you naked pictures of himself. That was enough. So, you sent him a nice e-mail gently asking him to stop, and he did.

Late one evening, he stopped by your office to chat. Everything seemed friendly and innocent enough until he walked over behind you and began massaging your shoulders. Momentarily shocked into silence, you just sat there. Seconds later, he had his hands down your shirt. That was enough to get you moving.

You jumped up and spun away from him. Not taking this as a sign to stop, he grabbed you and tried to kiss you. For a second you thought, “He’s going to rape me.” But he stopped when you said you were going to scream. Flustered, he said, “Sorry, I just thought…,” and he abruptly left your office.

The Aftermath

For the next couple of days, you tried to pretend like nothing had happened, hoping he had finally gotten the message. And he had, in a way. He no longer stopped by your office or asked you out for drinks. The problem was that now he was cold, and even hostile, to you. Soon, it began to affect your career. You didn’t get the promotion and pay raise that you expected. Instead, your boss noted in your review that you “needed some more experience” before rising further up the corporate chain. He gave the job to a less experienced male colleague!

You confronted the CEO again. This time, he was maddeningly smug. You said, “What happened in my office is water under the bridge. Let’s act like adults and move on.” With a sly grin, he responded, “I have no idea what you’re talking about. The truth is, you’ll never get that job. If you ever claim I said that, I’ll deny it. As far as I can tell, we are the only two people in this room. Who would believe you over me?”

You stormed out of his office, trying to hide your emotions. Shortly after you got back to your desk, a younger secretary came in and said, “I’m sorry. Maybe I’m out of line. But…is he…has he…done anything to you? Because he has to me…” With your encouragement, she went on to tell you a story similar to yours, except hers was even worse.

The Lawsuit

Within a week, you hired a lawyer to represent both you and the secretary. You initially asked for a six-month severance package with a positive reference for each of you. Despite this very reasonable request, the company played hardball, basically saying, “See you in court.” You took up the challenge and sued for a hostile work environment based on sexual harassment and assault and battery. You asked for lost wages (for the promotions you earned but were passed over for), emotional distress, and punitive damages.

Thrown for a loop again by this development, you went back to your therapist for about a month. She prescribed another short course of antidepressants as well as sleeping pills to help you get some rest.

The Records Request

It’s now a couple of weeks into the lawsuit when your attorney calls to tell you that the company wants all records related to your claim for emotional distress, including all of your medical records from the past 10 years. It also wants any records related to your mental health treatment following your divorce, including any notes that you may have kept.

What?! You’re fine turning over the medical records directly relevant to your harassment, no problem. But the divorce? Well, they are just being bullies. No dice, you tell your lawyer; they can’t have them. But are you right?

Is the company and its cadre of shark lawyers entitled to get and pore over your medical records about the treatment you received following your divorce? Unfortunately, they are.

Are You Ready for Your Life to Become an Open Book?

When you claim emotional distress, your life becomes (with some limitations) an open book. The employer is entitled to get any medical information that could be relevant to your claim of emotional distress. This information allows the company to argue to a jury that, while you may have experienced emotional distress, not all of it was because of what happened at the company. In fact, the company’s lawyer will argue that you were still affected by your divorce, not by what you claim happened to you at the office.

Fine, you say. You won’t fight the company’s access to your medical records. But the diary is too far. That is your private information. Can you refuse to hand over the diary?

Again, no. What you record in your diary would be relevant to the issue of what caused your emotional distress, and the company is entitled to review that information and use it against you in court. Like I said, your life becomes an open book.

Limitations on Personal Evidence

But the book is not completely open. There are still limits to what the company can see. For instance, I once represented a client who was raped 20 years before her wrongful termination. The company’s lawyers wanted to ask her about that in a deposition. We fought them, and the court agreed that the company was not allowed to get or use that information, because what happened 20 years ago was not relevant to her recent emotional distress.

Also, just because you have to turn your medical records over to your employer, the company may not be able to use them. The records or testimony must be admissible evidence before they can be presented in court, which is a higher bar to clear. Moreover, just because the company and its lawyers have this information does not mean that they can spread it all over town. These documents and statements are usually produced under a “protective order,” which is an order from the cousort establishing that the records are confidential and cannot be used outside of these legal proceedings. Still, portions of your medical records can become part of the public record of your case if either you or the company attaches those records to a motion or use them as evidence. In fact, you will want to introduce some of these records as they will help your case.

Summing It Up

An emotional distress claim can be a good way to increase the value of your employment discrimination case, but be sure you consider the benefits and the disadvantages before you file. You may want to talk to an attorney to be sure you understand what you’re getting into!

An emotional distress claim can be a good way to increase the value of your employment discrimination case, but be sure you consider the benefits and the disadvantages before you file. You may want to talk to an attorney to be sure you understand what you’re getting into!

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