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Friday October 16, 2015

More than lost wages
posted by Thomas A. Ebendorf
Tags: In the news 

Federal and state laws prohibit discrimination in employment based on race, color, religion, national origin, gender and age. Compensation available for the victims of such illegal acts include restoration of the job, promotion and compensation for lost wages. But there can be more. Victims of employment discrimination in Kentucky can assert claims for compensation for embarrassment, humiliation and emotional distress. Unlike calculating lost wages, proving the nature and scope of the emotional distress that a person suffered can be difficult to calculate.

Federal law puts caps or limitations on recovery depending on the size of the employer. However, state law does not contain any caps on recovery for emotional distress damages but rather leaves the determination to the jury or factfinder to set. This places a premium on the victim’s ability to present evidence of this damage. There is no requirement that the victim demonstrate a physical injury in order to qualify for compensation, but it places the burden on the victim to persuade the factfinder that he or she has truly suffered emotional distress. Personal testimony obviously is critical. Testimony by professionals such as psychologists and counselors treating an individual for the effects of emotional distress can add significant strength to the victim’s argument. However, it is not uncommon for the victim to go before the factfinder without the benefit of this professional testimony. An effective resource for supporting the victim’s claim can be found in the testimony of friends and family who can testify about changes they may have observed in the behavior and emotional stability of the victim before and after the alleged discrimination occurred. Victims and attorneys representing victims should look for the testimony of friends and relatives to bolster a claim for emotional distress damages.