March 21st, 2016
Compensatory damages may be awarded for economic injuries, such as lost wages, and non-economic injuries, such as emotional distress, pain and suffering, loss of enjoyment of life, or harm to reputation that is caused by the employer’s unlawful conduct. Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073, 1082 (6th Cir. 1999). Compensatory damages are available for common law causes of action including estoppel, quasi contract, negligent misrepresentation, negligent hiring, negligent retention, common law sexual harassment, intentional infliction of emotional distress, invasion of privacy, defamation, and violation of public policy. Many federal and state statutes, including Title VII, the ADA, the Rehabilitation Act, the USERRA, and 42 U.S.C. §§ 1981 and 1983, and R.C. Ch. 4112, R.C. § 4111.17, and R.C. § 4113.15 permit recovery of compensatory damages.
An award of damages for emotional distress must be supported by evidence of genuine injury. The employee is not required to produce medical evidence to prove emotional distress, though the employee’s relevant medical records may be discoverable. Lagenfeld v. Armstrong World Industries, Inc., 299 F.R.D. 547, 553 (S.D. Ohio 2014). However, the burden is on the employee to prove that the employer’s wrongful conduct was the proximate cause of the emotional distress or other harm. Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (S.D. Ohio, 2009). It is also important to distinguish a claim for emotional distress from the common law claim of intentional infliction of emotional distress, which must be proved by supporting testimony from other witnesses or medical documentation. Buckman-Peirson v. Brannon, 159 Ohio App.3d 12, 21-22 (2nd Dist. 2004). Certain statutory causes of action, such as the FMLA and ERISA do not permit recovery of compensatory damages for emotional distress. Rogers v. AC Humco Corp., 56 F.Supp.2d 972, 979 (W.D. Tenn. 1999) (FMLA) Longaberger v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009).