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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The
Georgetown Law Journal, Mar 2000 by Yamada, David C
The Restatement of Torts, heavily relied upon by many courts for guidance in considering IIED claims, defines lIED this way: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.107
Same courts have taken the Restatement definition of IIED and broken it down into separate elements:
1. The wrongdoer's conduct must he intentional or reckless;
2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
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3. There must be a causal connection between the wrongdoer's conduct and the emotional distress; and
4. The emotional distress must be severe.108
The following discussion examines a number of cases in order to gain an understanding of modern IIED doctrine as applied to workplace disputes.109 In doing so, it will categorize workplace IIED cases based an common underlying factual scenarios-(1) cases involving "garden variety" workplace bullying; (2) cases involving status-based discrimination or harassment; (3) cases involving termination or discipline for poor job performance as a basis for the lIED claim; and (4) cases involving an employer's in-house investigatory practices. In addition, the potentially preemptive effects of workers' compensation statutes will be considered and analyzed.
1. "Garden Variety" Bullying and IIED
An analysis of case law reveals that typical workplace bullying, especially conduct unrelated to sexual harassment or other forms of status-based discrimination, seldom results in Liability for IIED. This is because the courts have tended to find workplace bullying cases lack two of the required elements for IIED liability-either that the complained-of conduct was not severe or outrageous, or that the employee did not suffer severe emotional distress.
a. Severe and outrageous conduct. The most frequent reason courts provide for rejecting workplace-related IIED claims is that the complained-of behavior was not sufficiently extreme and outrageous to meet the requirements of the tort.110 The Restatement gives courts plenty of support for such findings. Comment d to the Restatement's IIED section states that "(l)iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."111 With such a high standard suggested in the Restatement, courts have held that many typical incidents of workplace bullying fall short that standard.
The following examples demonstrate the high bar courts have set for conduct to be considered outrageous. In Turnbull a Northside Hospital, Inc."112 the Georgia Court of Appeals found that alleged conduct including "glaring at plaintiff with purported anger and contempt, crying, slamming doors, and snatching phone messages from plaintiffs hand was childish and rude," but that "it is not the type of behavior for which the law grants a remedy."113 The court found persuasive the absence of cursing, derogatory remarks about the plaintiff, and verbal and physical threats.114
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