Retaliation, Humiliation, and Extreme and Outrageous Conduct: IIED in the Workplace

Abstract

Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an “especially strict approach” in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, it is notoriously difficult for employees to prevail upon IIED claims against their employers. At the same time, a few courts have recognized that one form of employer conduct may merit special treatment when assessing an IIED claim against an employer. According to some courts, the fact that an employer has engaged in retaliatory conduct may be “a critical and prominent” factor in assessing an employer’s behavior. This Article argues that other courts should also recognize retaliatory conduct as a weighty factor when considering whether such conduct meets the threshold of “extreme and outrageous” conduct for purposes of an IIED claim. Drawing upon social science research into the areas of humiliation and retaliation, this Article generally agrees with courts that have concluded that workplace retaliation often has a greater detrimental impact upon the victim than other forms of non-actionable employer conduct and, therefore, should be given special weight in the analysis of the extreme and outrageous nature of employer conduct.