When valuing civil claims in employment lawsuits, many attorneys start by calculating economic damages. This is a reasonable starting place for assessing claims involving a termination, failure to hire/promote, or accommodation failure that results in unpaid leave. But what about claims where the employee experienced no obvious wage loss, such as in claims involving harassment?  Where does one even start in forming a valuation? 

A potential starting place is jury verdicts. But one must be careful in relying only on those verdicts receiving publicity or being appealed, since both tend to be significantly higher than the average award. For example, in Carranza v. Los Angeles, a California jury awarded the plaintiff $4M in non-economic damages after coworkers circulated a topless picture of a woman who was falsely said to be Carranza. On the “spectrum” of harassment cases (where one end is derogatory remarks and the other is nonconsensual forcible touching), this seems to fall close to the middle.  Yet the $4M verdict would suggest particularly extreme harassment.

The Carranza case is also noteworthy in stressing the importance of employer’s subsequent remedial efforts. The court held that, “[c]ompounding Carranza's distress was the fact that, despite her repeated requests, the Department did not order LAPD officers to stop sharing the photo, advise them that it was not Carranza in the photo, or discipline anyone involved in the distribution of the photo. That the LAPD allowed the distribution to continue unchecked not only speaks to the sufficiency of the LAPD's response to the harassment, but also to the pervasiveness and severity of the harassment itself and the impact on Carranza's work environment.” In other words, an employer’s response to inappropriate conduct (or lack thereof) could transform conduct that does not rise to the level of harassment into actionable harassment.

The court’s decision is also a reminder to employers that they could be liable for harassment even if the plaintiff did not personally witness the harassment. As long as the employee learns of the harassment, it can affect their working conditions so may support a harassment theory.