Suppose an employee or tenant is the victim of housing or employment discrimination/harassment; what is the value of the ordinary (or in the court’s words “garden variety”) emotional distress that person suffers as a result of such discrimination or harassment.

I’ve actually talked about this before; back in 2021, the Appellate Court was asked to decide this very question in a case that was now just decided by the Supreme Court. The Appellate Court came to the fairly easy conclusion: “Contrary to the parties’ claims, there is not a binding or presumptive range for emotional distress damages in this state.”

Before you go further, really, just read that 2021 post; it’ll save us both a lot of time about the background of this housing discrimination case and why it’s relevant to employment law. (Indeed, the Supreme Court went out of its way to comment that the Appellate Court “did an admirable job” in its opinion.)

You would think that would be the end of things, but the Commission on Human Rights and Opportunities (the appealing party down below) was not content with the answer and decided to appeal that decision.

The Connecticut Supreme Court once again shot down the argument that Connecticut had a floor for emotional distress damages. Indeed, it notes that “we agree with that court’s resolution of the commission’s claims and no useful purpose would be served by retracing those steps here”.

Seemingly, the rest of the opinion in CHRO v. Cantillon et al was then dicta (meaning not necessarily “binding precedent” because it wasn’t necessary to the opinion itself) by noting that it was going to “take this opportunity, however, to clarify and elaborate on a few points raised by the commission.”

You could already tell that this wasn’t going to end well for the Commission.

The court noted that in its prior decision referring to a range for such garden-variety emotional distress damages, “our point…was simply that an award of damages that was squarely within the range of those that often are awarded in this part of the county will not shock the judicial conscience.”

The court then said that it wanted to emphasize four points to resolve any confusion arising from the prior decision.

First, the court noted that its quote was taken out of context and since that time, “more recent assessments…have placed a much lower floor on the prevailing range of awards…”

Second, limiting such emotional distress damages to “some permissible range by judicial fiat” would “run afoul of decades of Connecticut jurisprudence”. The Court said it wasn’t going to do so.

Third, “The commission has not identified any other area of the law in which the courts of this state have taken the extraordinary step of establishing a limit—upward or downward— on the amount of damages that presumptively can be awarded by a Connecticut jury, court, or administrative agency. And for good reason. Public sentiments regarding the range of damages that is fair and fitting in different types of legal actions can vary widely and evolve rapidly.”

For that reason, the court continued, determining whether to establish a minimum or maximum permissible award is a “quintessentially legislative, rather than judicial function”. In other words, because the Connecticut General Assembly has established minimum and maximums for damages in other cases, it was perfectly capable of doing that for emotional distress damages. But it chose not to do so.

And fourth, the court stated that it was not “persuaded” by the CHRO’s argument that there will be a “forum shopping problem” if the court doesn’t set a floor. The CHRO argued that complainants would go to federal court more than state court without a floor. But the Court found that argument less than convincing.

[T]he commission has presented no evidence that complainants have in fact been engaging in forum shopping of this sort, and there are many reasons why we believe that the concerns expressed by the commission are overstated.

The court went on to look further at the actual award here and whether the test set out in a prior case to evaluate such awards (the so-called “Harrison test”) should be revised. But the court said that it would leave to another day whether to revisit those factors saying this was not the case to do so given the “unique procedural posture” of the case.

But appellate lawyers should start their engines to find such a case given this invitation from the court: “[W]e are not entirely convinced that the Harrison test represents a reasonable framework for assessing emotional distress damages.”

For employers, the case is an important one because counsel for employees have often claimed that even a small victory could result in a sizable emotional distress damages award. The court has now rejected that as a range and it’ll be up to the courts and fact-finders to determine what that amount should be.