Intentional Infliction of Emotional Distress Claims Arising from Workplace Abuse, Race Discrimination and Sexual Harassment – IIED’s Time Has Come in the “Me Too” Era
Even before the “Me Too” era, Illinois courts provided protection for extreme acts of sexual and racial harassment in the work place separate and apart from the protections provided under the civil rights laws and the Illinois Human Rights Act. Civil Rights statutes only permit pursuing suit against the employer and not against a supervisor who engages in the horrible misconduct. The tort of Intentional Infliction of Emotional Distress (“IIED”) in the right circumstances provides a tort remedy for injured employee. IIED claims have a steep burden of proof but that burden is often, if the right facts are present, far lower in the employment context in situations where a lower level employee such as woman is being subjected to unwanted sexual advances of an extreme and outrageous character. Conduct which goes “beyond all possible bounds of decency and [would be] regarded as intolerable in a civilized society” in what is needed to pursue an IIED claim. Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 21 (1992).
Employer defendants often misstates the law regarding IIED in an attempt to argue that plaintiff bears a steeper burden of pleading outrageous conduct in the employment context as would be the case in other contexts These defendants ignore that the Illinois Supreme Court held in McGrath v. Fahey, 126 Ill. 2d 78 (1988), that “[t]he more control which a defendant has over the plaintiff, the more likely that defendant's conduct will be deemed outrageous ... Illinois cases in which intentional infliction of emotional distress has been sufficiently alleged have in fact very frequently involved a defendant who stood in a position of power or authority relative to the plaintiff.
Conduct which might otherwise be considered merely rude or abusive may be deemed outrageous where the defendant knows that the plaintiff is particularly susceptible to emotional distress. Doe v. Calumet City, 161 Ill.2d 374, 392 (1994).
The notion that there is a lower “outrageousness” threshold where the defendant exploits a position of power is well known to Illinois courts. Doe, 161 Ill. 2d 374, 641 N.E.2d 498 (1994); Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90 (1976); Robertson v. Travelers Ins. Co., 100 Ill. App. 3d 845 (5th Dist. 1981). Contrary to most employer defendants’ typical arguments, in the employment context, “the severity of the conduct that plaintiff need allege decreases as the defendant’s level of control increases.” Piech v. Arthur Anderson, 841 F. Supp. 825, 831 (N.D. Ill. 1994) (emphasis added) (an “abuse of position of power, such as that of an employer over an employee, lowers the outrageousness hurdle”); Spahn v. International Quality & Productivity Center, 211 F. Supp. 2d 1072 (N.D. Ill. 2002).
The cases that employer defendants often rely upon are generally distinguishable when an employer abuses a position of power over the employee. For instance, Lundy v. City of Calumet City, 209 Ill. App. 3d 790 (1st Dist 1991) involved IIED claims against a defendant police department which had relieved the two plaintiff officers from uniformed duty, prohibited them from wearing their guns and badges, reassigned them to the record division, and told several other people who needed to know such information that plaintiffs had mental problems after the results of their psychological tests were indeterminate. The Court found the police department had a legitimate interest in assuring the mental stability of its officers before allowing them to return to active duty, and therefore concluded that no claim for IIED could arise from the department’s actions in ascertaining the officer’s mental fitness.
Likewise, in Briggs v. North Shore Sanitary District, 914 F. Supp. 245 (N.D. Ill 1996) are generalized alleged racial slurs which were not specifically directed at plaintiff did not rise to the level that could result in IIED claim. The alleged offensive comments in Briggs were made against African Americans in general. The comments were “blacks practice vodoo” and “blacks keep chickens in their refrigerators.”
Those comments do not compare in offensiveness to an IIED claim our Chicago employment discrimination attorneys successfully litigated where the employee’s supervisor, asked the employee to perform oral sex on him, and engaged in offensive unwanted touching of her most private areas, even after she told him he was upsetting her and to stop it. Briggs also did not involve allegations of assault and battery and unwanted sexual touching. Most of the alleged offensive conduct alleged in that case involved supervisors subjecting an employee to ordinary work day stresses such as being required to perform repetitive tasks the employee did not like to perform.
Unlike in Lundy and Briggs, where a plaintiff can pursue an IIED claim when the plaintiff alleges “incidents of inappropriate and offensive sexual comments, unwelcome and unwanted sexual advances, and numerous occasions of harmful and offensive touching by her superior,” which Illinois courts, as Spahn observed, have consistently held state an IIED claim. Sutton, 251 Ill.App.3d 737 (unwanted sexual touching in the workplace, even of the type which doesn’t given rise to a battery, combined with vulgar sexual remarks and unwanted sexual advances, gives rise to an actionable IIED claim.)
Finally, as with his other assertions, Ahlgrim’s claim that Foster must allege a physical manifestation of the alleged emotion distress to state an IIED claim lacks merit, and has long been rejected by the Illinois courts. More than a decade ago, the Illinois Supreme Court rejected any requirement to detail the physical ailments that accompany emotional distress in a complaint or at trial, holding that:
Corgan v. Muehling, 143 Ill. 2d 296 (1991)
The requirement of physical manifestation of emotional distress is over inclusive because it permits recovery for mental anguish when the suffering accompanies or results in any physical impairment, regardless of how trivial the injury. More importantly, the requirement is under inclusive because it arbitrarily denies court access to persons with valid claims they could prove if permitted to do so. Additionally, the requirement is defective because it 'encourages extravagant pleading and distorted testimony.’ To continue requiring proof of physical injury when mental suffering may be equally recognizable standing alone would force victims to exaggerate symptoms of sick headaches, nausea, insomnia, etc., to make out a technical basis of bodily injury upon which to predicate a parasitic recovery for the more grievous disturbance, the mental and emotional distress she endured.
Based on far less evidence then Foster intends to submit to the jury on the extent of her emotional distress, Illinois courts have approved six figure emotional distress awards. Gibson v. Phillip Morris, Inc., 292 Ill. App. 3d 267, 685 N.E.2d 638 (5th Dist 1997), in approving a $100,000 emotional distress award (where no expert medical testimony appears to have been presented) stated:
The court also awarded plaintiff $100,000 for “personal humiliation, mental anguish and suffering.” ... At trial, plaintiff testified that he was unable to sleep as a result of his discharge and that he was afraid he would not be able to provide for his family. Plaintiff's wife confirmed these problems and stated that plaintiff sought medical help. A friend of plaintiff's, Jack Stork, testified that plaintiff was devastated and was not the same person after his discharge. This evidence was uncontradicted and supported plaintiff’s claim for emotional distress, and the court’s award of $100,000 for this element of damages is affirmed.
If you have been defamed in the workplace or over the internet with extreme and outrageous accusations or other been subjected to extreme abuse, our Chicago defamation slander and libel lawyers and Chicago employment litigation attorneys can bring a claim for intentional infliction of emotional distress on your behalf. Our Chicago defamation slander and libel lawyers and our Chicago employment litigation attorneys, in the right case, which meets the high bar for such claims or where there is an abuse of power, have successfully prosecuted claims for intentional infliction of emotional distress. We have brought IIED claims on behalf of women or African Americans subjected to horrible and repeated racial or sexual abuse and assaults or batteries in the work place and obtained substantial settlements. You can view our record here. For a free consultation call us on our toll-free number at 833-306-4933 or locally at 630-333-0333. You can also contact us online.