When someone gets treated unlawfully at their job because of that person’s race, age, gender, sex, sexual orientation, disability, religion, national origin, or color that person suffers more than just loss of income.  A person’s job is often tied to their identity, their reputation, their sense of worth, and sense of purpose.  Losing a job, not getting a promotion, not getting hired, or being subjected to severe or pervasive harassment causes very real pain and suffering.  It can strain friendships, estrange family members, break up marriages, and ruin lives.  Because unlawful employment discrimination causes that kind of actual damage, most employment laws allow a person to recover money for those things.  In employment law, these damages are called compensatory damages and can be recovered in lawsuits against private employers, state and local government employers, and federal agencies.

The Fifth Circuit pattern jury instructions, which are the model jury instructions used by most federal trial judges in Texas and the Fifth Circuit, describe compensatory damages as “pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other noneconomic losses.”  The Texas pattern jury instructions, which are used by most state court trial judges, are similar, defining compensatory damages as “economic losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other noneconomic losses.”

So now that we know what they are, how do you prove them? The Fifth Circuit pattern jury instructions tell us how:

To recover compensatory damages for mental and emotional distress, Plaintiff [name] must prove that he has suffered a specific discernible injury with credible evidence. Hurt feelings, anger and frustration are part of life and are not the types of harm that could support a mental-anguish award. Evidence of mental anguish need not be corroborated by doctors, psychologists, or other witnesses, but Plaintiff [name] must support his claims with competent evidence of the nature, extent, and duration of the harm.    

The key to proving mental anguish damages is specificity.  In the cases where mental anguish damage awards have been upheld by district courts and the Fifth Circuit, the common thread is that the plaintiff presented specific evidence of specific incidents illustrating the mental anguish they went through.  General assertions about general feelings are not enough.

A case that my firm won last in year illustrates the evidence required to prove such damages.  In our case, Johnson v. Sw. Research Inst., 5:15-cv-297, 2019 WL 4003106 (W.D. Tex. Aug. 23, 2019), the court awarded the plaintiff $300,000 in compensatory damages, which is the maximum amount of compensatory available under the law.  In our case, the plaintiff presented testimony from her husband and a coworker about the effect her termination had on her.  The key was how specific that testimony was.  In confirming the compensatory damages award, the Court described the evidence that supported it:

Her husband explained the termination “sent her into a deep depression,” necessitating antidepressant medication as well as frequent doctor visits, and triggering emotional breakdowns whenever she would run into someone connected to Southwest Research in public. He specifically discussed an episode where Johnson began uncontrollably sobbing in a Whataburger, and another where Johnson couldn’t bear to stay at a friend’s funeral after encountering some former colleagues also in attendance. A former colleague further described how Johnson’s termination “devastated” her.

We used a similar approach in another trial later that same year against the government.  In that case, the plaintiff and his wife told specific stories about how the unlawful retaliation he had experienced changed their lives and continued to affect them.  It was powerful stuff and the jury awarded us every dollar that we asked for after less than two and half hours of deliberation.

As I’ve said a couple times above, compensatory damages are real losses and if you have been unlawfully treated by your employer, you are entitled to them.  Of course, no amount of money can undo the strain on family and relationships caused by unlawful treatment.  But both the law and juries understand that unlawful employment practices cost an employee or applicant much more than lost wages.  And the employer should be held responsible for those losses.  If you have been discriminated or retaliated against in your job, you should contact a Texas Employment Attorney to discuss what option you have and what potential damages you can pursue, including the toll the unlawful conduct has taken on your well-being outside the office.

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.