How are damages determined in a sexual harassment lawsuit?

By Jack Tuckner, Esq.

Well, if we’re talking about a lawsuit that proceeds to trial and you prevail (you win), and the jury finds for you, then they have to consider basically four types of damages.


  1. Back Pay: How much money did you lose? Were you fired as a result of the sexual harassment? What did it cost you before you found another job, a comparable position? And it is the requirement of the law that the employee, the sexually harassed employee, mitigate her damages, which is a fancy way of saying, you have to prove that you did everything you can to get back in the saddle and get another job. So, if you were out of work, for example, for a year after you were terminated in the sexual harassment claim, the jury can award you a year’s pay that’s your back pay, and there may also be some front pay, but it’s really about the compensation for the fact that you lost your job for no legitimate reason, based on sexual harassment.


  1. Emotional Distress: The second type of damages is emotional distress, sometimes called pain and suffering. In order to obtain the most that a jury would give you [for emotional distress] (and those numbers don’t tend to be particularly large), you need to be in treatment, meaning that you have consulted with a therapist, a psychologist, a psychiatrist (a mental healthcare professional), who has determined that you have anxiety, major depression, post-traumatic stress disorder, for example, and it resulted from your [workplace] experiences and the degradation that you suffered in the workplace due to the (severe) sexual harassment.


  1. Punitives: The third type of damage are punitive damages. That of course requires a jury verdict. And if a jury determines that your company was so outrageous in its response to your sexual harassment complaint situation, and that it shocks the conscience of the jury, and they determine that no civilized nation should condone this type of corporate conduct, they (the jury) can punish the company. And these are sometimes where you read the bigger numbers come into play, because a company with much revenue will be punished typically with a larger number to send a message to this company and to other companies like it, to not allow these things to happen.


  1. Attorneys’ Fees: And the fourth type of damages–attorneys’ fees to you if you win–your lawyer gets paid by the company. And that also saves you, and provides much more award (and saves you a lot of money), because otherwise those attorneys’ fees would’ve come out of your win, or your settlement. Here, the company is paying your lawyers.


So, back pay damages, emotional distress, punitive damages, and attorneys’ fees; these are the universe of monies that you could obtain after a successful jury verdict, but keep in mind, the vast majority of cases, so likely your own is not going to make it to trial, because most cases, the vast majority of cases, either settle at some point or they’re dismissed by a federal or state court.

So, it is best to…if by the time you’ve gotten to trial, presumably you’ve had much advice and you have tried many times to resolve your claim, but when you do settle a claim, it’s a compromise based on the same factors, except not generally punitive damages, or even the attorney’s fees. It’s really based on two things, the money that you lost (back pay) and maybe you’re continuing to lose, as a result of the discrimination, the sex discrimination, and damages for your emotional distress. If you have any questions at all about your own sexual harassment case and want to discuss it with us for a first or second opinion in terms of the value of your claim, please reach out to us.

My name is Jack Tuckner, the firm is Tuckner, Sipser Weinstock & Sipser, LLP based in New York. We’ve been doing this since 1999, representing and advocating for women’s rights in the workplace, and we will consult with you at no charge to you, and in total confidence. Take care.