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.

Photo of Colin W. Walsh Colin W. Walsh







3. What kind of clients do you like best?






6. Who is your favorite Supreme Court Justice?

Justice William Brennan.





9. What is your favorite food?


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

All of the outdoor festivals.  And the Longhorns.
