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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
In addition to IIED's failure on its face as a weapon in the fight against workplace bullying, it also suffers from infirmities brought about by its relation with other doctrines of law. In particular, problems come about by the interrelation of IIED with sexual harassment law, at-will employment, and workers compensation. These problems are discussed further below.
2. Discrimination, Harassment; and IIED
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The most successful types of workplace-related IIED claims are grounded in factual allegations of severe status-based harassment or discrimination.163 Some of these cases included behavior that virtually anyone would consider extreme and outrageous. To illustrate, in Soto v. El Paso Natural Gas Co.,164 the Texas Court of Appeals held that summary judgment for the defendant was improperly entered on both statutory harassment and IIED counts where plaintiff Emma Soto alleged that she was subjected to ongoing physical and verbal conduct of a sexual and highly personal nature.165 In addition to alleging the creation of a hostile work environment rife with crude and vulgar sexual remarks, Soto, a secretary, claimed that her supervisory coworker, Tom Trujillo, ridiculed her and touched her breast following her return to work from a second mastectomy for breast cancer and reconstructive surgery.166 In fact, "she heard Trujillo referring to her as `lopsided' at a department meeting" for supervisors and administrators, who "smiled and laughed at this heartless comment."167
Sato was diagnosed as having "severe depression and post-traumatic stress syndrome as a result of the hostile environment at her workplace."168 Surely her symptoms were indicative of severe emotional distress, as they included "bouts of crying, intense feelings of helplessness and loss of control, fear of retaliation, and . . . difficulty concentrating and failing asleep."169 On these pleaded facts, the Texas appeals court found that summary judgment was improper as to both the IIED and statutory harassment claims.
A more typical example is Kanzler v. Renner,170 in which the Wyoming Supreme Court held that summary judgment for the defendant was improper where the plaintiff's IIED claim was grounded in allegations of "physical attack, persistent harassment and severe emotional injury."171 Sharon Kanzler, a police dispatcher. developed a friendship with a police officer, David Renner, who then allegedly engaged in a course of conduct that included following her, grabbing her, attacking her in a utility closet, and rubbing his crotch against her leg.172 Kanzler sought therapy as a result and "was diagnosed as suffering from depression and post-traumatic stress disorder as a result of the incidents at work."173 Despite the doctor's diagnosis, the trial court granted summary judgment for Renner.174 In holding that summary judgment was improperly entered, the Wyoming Supreme Court stated that it is "in accord with numerous jurisdictions which have determined that inappropriate sexual conduct in the workplace can-, upon sufficient evidence, give rise to a claim of intentional infliction of emotional distress."175 To do otherwise: reasoned the court; "would amount to an intolerable refusal" to recognize the severe effects of sexual harassment.176
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