Damages for pain and suffering are much lower in the State Division of Human Rights

Not every employment discrimination gets filed in court, either state or federal. Some are filed in the New York State Division of Human Rights, which has authority to investigate and settle claims, and if settlement fails, the DHR can hold an evidentiary hearing and award damages if the plaintiff wins the case. But litigants should know that damages are limited in the DHR, including damages for pain and suffering.

The case is Town of Hempstead v. New York State Division of Human Rights, a Second Department ruling issued on April 26. This is a disability/reasonable accommodation case. The plaintiff alleged, and the DHR judge agreed, that following her work-related injury, plaintiff suffered discrimination because her municipal employer refused to accept her medical documentation that she was fit to return to work full time and eliminated her position in retaliation for her litigation before the DHR. The hearing officer awarded plaintiff damages as follows: (1) back pay of approximately $27,000 for a 10-month period (August 2013 to June 2014), (2) $40,000 in mental anguish, and (3) a civil fine against the Town in the amount of $35,000. The civil fine is similar to punitive damages. The DHR Commissioner increased plaintiff's back pay to nearly $70,000 (covering November 2012 to June 2014) but dismissed the retaliation claim. The Commissioner held firm on the pain and suffering damages and the civil fine.

Off to the Appellate Division, which affirms the finding of liability but reduces the damages. Plaintiff does not get back pay dating to November 2012 because the Town was unable to accommodate her at that time because she was unable to perform an essential job function -- typing on a computer -- at that time. She does get back pay from August 2013, when she sought reinstatement and the Town denied that request, but the Workers' Compensation benefits she received at this time should have been offset against the backpay award to prevent a double recovery. The back pay is reduced from nearly $70,000 to approximately $17,700. That's a big reduction.

The pain and suffering award of $40,000 is too high, says the Appellate Division. In federal court, a jury may award, and the judge may subsequently accept as reasonable, a much higher damages award for this kind of discrimination, perhaps up to $100,000 for what we call "garden variety" pain and suffering not involving medical or psychiatric intervention. But the state system awards much less than federal courts in my experience, and the Appellate Division thinks plaintiff should only recover $10,000. There is no federal judge in the SDNY or EDNY who will reduce a pain and suffering award to $10,000. But the Appellate Division treats this as a simple issue. The Court says that plaintiff's diagnosis of major depressive disorder occurred in March 2013, prior to the discriminatory conduct of August 2013, and was not initially related to her medical condition which gave rise to the disability discrimination claim. Even without that timeline, $10,000 is low for a discrimination case in federal court. But here we are in state court, and things are different in cases litigated in the DHR.

What about the civil fine? It drops from $35,000 to $10,000 because the retaliation claim, upon which the civil fine was partly based, was dismissed in the Appellate Division.