Lack of Uniformity in Emotional Distress Damages in Pennsylvania Housing Discrimination Cases

by Riley Frank, Staff Writer

Photo courtesy of

Under the Pennsylvania Human Relations Act (“PHRA”), complainants can be awarded emotional distress damages in cases involving housing discrimination. Although this is the case, it is often very difficult to determine an appropriate amount of such damages since Pennsylvania has not yet established a system by which to determine this. 

Emotional distress damages, which include humiliation and harassment, are often sought by complainants bringing housing discrimination claims under the PHRA. In Pennsylvania, once a finding of housing discrimination is made, the decision as to the appropriate amount of award for embarrassment and humiliation damages is extremely fact-specific, making evidence of both the discriminatory conduct and the victim’s reaction essential.[1]

Though the Third Circuit and Pennsylvania state courts do not have a system by which to calculate emotional distress damages, the Second Circuit does. In the Second Circuit, courts have generally cited a 1999 Brooklyn Law Review article that prescribes a tiered system which more easily classifies discrimination into categories that correspond with dollar amounts, starting with employment discrimination and eventually broadening to include housing discrimination cases.[2]The tiers are as follows: Tier One (“Garden Variety”), for vague emotional distress without medical corroboration, from $5,000 to $35,000; Tier Two, for significant emotional distress resulting from offensive conduct, with some medical testimony, from $50,000 to $100,000; and Tier Three, for egregious emotional distress resulting from outrageous conduct, where the complainant’s physical and mental health was affected and corroborated by medical testimony.[3]

The Second Circuit has repeatedly cited the 1999 article as persuasive authority, with other courts in turn citing those decisions as authoritative while entirely ignoring repeated Second Circuit, and other relevant, precedents to the contrary, awarding higher amounts of damages than the tiers prescribe.[4] This results in profoundly inaccurate and undervalued emotional distress awards. As often becomes the pattern, courts, including those of Pennsylvania, prefer to cite to other decisions and rely upon them to determine a range of damages within each tier than conduct their own research to establish their own formula. This pattern has not only occurred in the Second Circuit, where a formula has been established, but in other federal courts and state courts that do not have guidelines to use when approaching damages. 

Though it has been proven through multiple Pennsylvania Commonwealth Court opinions that emotional distress damages are both awarded and upheld on appeal, there is a lack of uniformity with which courts and the PHRC use to damages. It would be most helpful to conceptualize a similar approach to that utilized by the Second Federal Circuit, first brought about by the 1999 Brooklyn Law Review Article that prescribed a tiered scheme for emotional distress damages. Though the Second Circuit’s scheme is outdated and flawed, Pennsylvania, and perhaps even the Third Federal Circuit, could adjust the scheme to reflect inflation and reevaluate the tiers. This may also help to solve the problem of both the PHRC and Pennsylvania courts’ reliance on opinions where complainants were awarded emotional distress damages in housing discrimination cases that may not have accurately reflected their deserved compensation. If Pennsylvania adopted a system modeled after the one utilized by the Second Circuit, complainants bringing claims under the PHRA would be more accurately compensated for the emotional distress they endured. 

[1] New Corey Creek Apts. v. Pa. Human Relations Commission, 865 A.2d 277, 282 (Pa. Commw. Ct. 2004).

[2] Evaluating Emotional Distress Damage Awards to Promote Settlement of Employment Discrimination Claims in the Second Circuit, 65 Brooklyn L. Rev. 393.

[3] Id.

[4] Nothing Garden Variety About It: Manifest Error and Gross Devaluation in the Assessment of Emotional Distress Damages, 70 Syracuse L. Rev. 701.

Comments are closed.