Employment & Labor Insider

Under the federal anti-discrimination laws, a plaintiff who wins may be able to recover “compensatory damages,” which can include damages for emotional distress resulting from the alleged discrimination.

A claim for intentional infliction of emotional distress is different.

Intentional infliction claims are based on state common law, and they are decided under a different -- and much more employee-unfriendly -- standard than the one that applies to claims for compensatory damages under federal law.

Illegal? Maybe. Intentional infliction? No way.

A case decided this week makes that clear. The plaintiff (we’ll call her “Carla”) was a nurse, and she claimed that her hours were taken away from her and assigned to a junior, less-competent nurse.

That was bad enough. But on top of it, she alleged that in an employee meeting, the operations manager went on and on about how great it was that Carla was working less and this junior, less-competent employee was working more. Carla found this upsetting and humiliating.

Also, Carla was a 66-year-old white female, and the junior employee who took over her duties was a Black female in her 30s. So Carla believed she was being discriminated against because of her race and age.

(The only allegations we have now are Carla’s. The employer has generally denied her allegations but has not yet provided specifics.)

Anyway, Carla sued for race and age discrimination, among other things, including a claim for intentional infliction of emotional distress. The employer filed a motion to dismiss the intentional infliction claim right off the bat.

"Did somebody say 'bat'?" (Congratulations, Milwaukee Brewers!)

On a motion to dismiss, the court has to assume that the allegations in the lawsuit are true. The entire case or certain claims can be thrown out at the get-go if the court finds that, even assuming the allegations are true, they don’t state a valid claim under the law.

If you are hungry for some educational reading while you're between trick-or-treaters tomorrow night, you can read more about motions to dismiss here.

The employer argued that, even if everything Carla said was true, she didn't have a valid intentional infliction claim. The court agreed and threw out that claim.

“Extreme and outrageous”

A valid intentional infliction claim requires “extreme and outrageous” behavior on the part of the defendant.

You’d think taking away an employee’s duties and reassigning them to someone else, and then humiliating her about it in front of her peers, would fit the bill.

But, no. The courts understand that these actions are very unpleasant and even traumatic. But they are generally not “extreme and outrageous” enough in themselves to support an intentional infliction claim. Even if they're discriminatory. And even if they result in termination.

Here is the way Carla’s court defined “extreme and outrageous” for purposes of an intentional infliction claim:

[T]he conduct alleged must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. . . . Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, and trivialities.

And here is the way the court described it in the context of an employment-related claim:

Nor does a claim for intentional infliction of emotional distress lie in an ordinary employment dispute. Most workplace conduct, including demeaning comments, unfair criticism, demotion, termination or other harassment, is not sufficiently extreme and outrageous, however deplorable it may be . . . even where the evidence suggests that those acts are based upon an illegitimate factor such as race, age or disability and are therefore illegal. IIED claims are instead limited to situations where the distress is more than a reasonable person could be expected to endure and the offending conduct is intended or calculated to cause severe emotional distress.

(With both excerpts, ellipses and italics are in court’s decision; quotations and citations are omitted.)

You may be thinking, “Well, this judge was completely out in left field.”

"Did somebody say 'left field'?"

But you’d be wrong. Most courts apply this, or a similar, standard.

Have the courts ever recognized an intentional infliction claim in the employment context? Sure, but only if there is something beyond an unfair, or even discriminatory, employment decision.

The court in Carla’s case cited one case from the 1990s where the employer allegedly demoted a vice president to warehouse “supervisor,” where his duties were janitorial (he didn't even supervise the janitors). A regular demotion, maybe to manager, or even a termination, wouldn’t have been “extreme and outrageous” enough. But forcing a VP to work as a custodian -- assuming it was done for a wrongful reason -- was.

In another case cited by the court, the employer denied a promotion to the plaintiff allegedly because of her sex, and allegedly did some other unlawful things. None of that gave rise to an intentional infliction claim. The employer didn't cross the line until it allegedly tried to frame the plaintiff for theft by planting company checks in her purse.

I’ll add that severe workplace harassment can give rise to a valid intentional infliction claim, especially if it involves a sexual assault or other violence.

Only Strike 1 for Carla's lawsuit

"Did somebody say -- well, you know."

Carla still has potentially valid claims under the anti-discrimination or other laws. And, again, she may be able to recover compensatory damages if she prevails.

Warning for employers

Employers, if you’re unhappy with an employee, take responsibility. Address the issues, and take appropriate action if there is no (or not enough) improvement. You may get sued anyway, but you should be able to defend yourself. And, like Carla's employer, you are likely to get an early dismissal of any intentional infliction claim.

If you instead try to make work unpleasant enough to induce a "voluntary" resignation, or (heaven forbid) try to fabricate an "airtight" ground for termination for cause, you are much more likely to face valid intentional infliction claims in addition to a slew of other claims. Being devious doesn't help. You’ll be making things worse for yourself. (See also “constructive discharge.”)

Happy Halloween!

I hope you all have a fun and scary-but-not-too-scary Halloween tomorrow. If you’re in the mood for a Halloween-themed employment law blog post, you can’t go wrong with the latest from Max Bernas. Better than a free six-pack of Old Milwaukee, and that’s saying something! (Also much more entertaining than my post about motions to dismiss.)

Yay, Rays!

I’ve been focusing on the Brewers for obvious reasons, but congratulations also to the Tampa Bay Rays for making it to the World Series. That is no mean feat!

Said the Detroit Tigers fan. *sob*