phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

The presence of discriminatory animus can "boost" the strength of an otherwise marginal IIED case. For example, in Taylor v. Metzger,177 the New Jersey Supreme Court held that the utterance of a single racial slur (in this instance, "jungle bunny") could, under certain circumstances, constitute extreme and outrageous conduct.178 The court explained its position by engaging in an extensive discussion of the harmful effects of racially based harassment.179 Furthermore, noted the court, the plaintiff had been diagnosed as having post-traumatic stress disorder as a result of the incident.180

Despite the holdings in Soto, Kanzler, and Taylor, many IIED claims based upon factual allegations of status-based hostile work environments or discrimination are dismissed, even where courts simultaneously uphold the statutory claims based on the same facts.181 These IIED claims are dismissed because the defendant's conduct was not deemed sufficiently extreme and outrageous, or because the plaintiff failed to demonstrate the requisite level of severe emotional distress. For example, in Hoy v. Angelone,182 the Pennsylvania Superior Court dismissed an lIED count following a jury verdict for the plaintiff. During the trial, the plaintiff testified that her supervisor "subjected her to various forms of abusive treatment, including sexual propositions, vile and filthy Ianguage, off-color jokes, physical groping, and the posting of sexually suggestive pictures," compelling her to seek psychiatric help.183 The court stated that absent an extra factor, such as retaliation for refusing sexual advances, sexual harassment does not constitute outrageous conduct to support an IIED claim.184

In Jeremiah v. Yanke Machine Shop, Incc.,185 the Idaho Supreme Court upheld a hostile work environment claim based on national origin while dismissing an IIED claim. The plaintiff presented evidence that he was subjected to "extensive demeaning name calling, which included specific epithets regarding his national origin," the placing of an "obscene green card" on his desk, receiving "an obscene employment evaluation," and having his tires deflated and his truck scratched while he was at work.186 However; the court avoided directly addressing the issue of whether the behavior was extreme and outrageous. Instead, it found that because the evidence established that the plaintiff was merely "seriously frustrated" by what had happened to him; he did not meet the requirement of severe emotional distress.187

These unsuccessful IIED cases establish that the degree of severity of conduct and harm to the plaintiff required under hostile work environment and discrimination analyses is notably lower than that required under IIED. In effect, the courts have said that conduct that is actionable under an employment discrimination theory often does not rise to the level of IIED. At least those plaintiffs who can prove status-based harassment ar discrimination still have avenues of legal relief via employment discrimination statutes. However, for plaintiffs who are not members of a protected class, or for those who are members of a protected class but cannot establish a legally sufficient link between the complained-of behavior and their protected status, IIED may be the only possible cause of action. Unfortunately for them, the thresholds for establishing extreme or outrageous conduct and severe emotional distress are simply too high for lIED to serve as a useful weapon against workplace bullying.