Feds open the door for employer’s liability for intentional infliction of emotional distress by mid-level managers.
Editor’s comment: Be sure to try to head this one off at the pass. While in certain settings, employers have always been potentially liable for the intentional torts of their employees, it is not the norm. Usually these situations are reserved to where the employee is authorized to forcefully contact third parties, to “place hands on” another – as in the case of bouncers or security guards at a night club. A recent federal court ruling from earlier this summer, while not specifically holding such, left open the possibility that a new situation could give rise to employer liability for another type of intentional tort – Intentional Infliction of Emotional Distress.
In Virginia Curran v. JP Morgan Chase, a recent case from the U.S. District Court for the Northern District of Illinois, Plaintiff Curran filed a multi-count complaint against both her individual supervisor and JP Morgan Chase as an institution alleging various violations of statute and various tort claims. While the majority of the decision simply addresses the failings of Plaintiff’s complaint, there are several pieces of dicta (statements of law that are not applicable to the case at hand, but nonetheless, potentially precedential) that offer a very intriguing and novel approach in regard to claims of Intentional Infliction of Emotional Distress (IIED).
IIED is not simply an act that embarrasses or frustrates a person. The actual language used as benchmark for what conduct is actionable is “extreme and outrageous.” Only conduct that shocks the conscious is the type of conduct upon which one would be able to base an IIED claim. One interesting thing addressed in Curran was whether this type of claim was pre-empted by the Illinois Human Rights Act when the defendant was the employer of Plaintiff. The court held as to individual persons, extreme and outrageous conduct would create a potential claim independent of the statute, which safeguards employees from various workplace abuses such as discrimination. While certain conduct could satisfy the requirements to be actionable under both the Act and under an IIED claim, that fact should not pre-empt and thereby preclude the filing of a common law tort claim. Only in settings where the actions giving rise to the claim were “inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the [IHRA] itself” are such claims preempted.
A far more interesting and potentially costly issue was raised in relation to the employer, here JP Morgan Chase. The Federal court in Curran held, as to the employer of the manager, who was the actual intentional actor; there was potential liability under a respondeat superior theory. Respondeat superior is the legal name given to the idea that principals are liable for the tortious conduct of agents, as in the case of employers being liable for the car collisions caused by their employees. One of the key elements of the employer having liability in these settings is whether the employee was “acting within the scope of his or her employment.” The issue was only addressed in passing dicta in Curran due to the fact Plaintiff expressly pled her supervisor was acting outside the scope of his employment. Nonetheless, the court stated “Chase could theoretically be held liable for [manager’s] conduct under this theory … if [manager] were alleged to have committed the offending acts within the scope of his employment.”
Up to this point it has always been presumed extreme and outrageous conduct by a supervisor giving rise to an IIED claim would naturally be outside the scope of the supervisor’s employment. Take heart though, as our reasoned legal opinion is if a plaintiff were to prove enough facts to evidence the outrageous actions were within the scope of a manager’s employ, there may be little doubt the employer was not at least partially at fault. Proving it was within the scope of employment would involve demonstrating the employer seasonably knew of the actions of the supervisor and likely either approved or did nothing. That said, defense costs for every claim such as the one brought here will once again rise in the great state of Illinois.
Please remember our longstanding advice in all employment law claims including claims involving IIED—have your defense case-in-chief built before contacting counsel. Have a clear path for your line employees to report harassment, discrimination and “infliction of emotional distress” to your company watchdogs. Document, document, document investigation and curative action. Prepare for litigation at the earliest stage and you will be ready when and if a lawsuit or EEOC/IDHR charge arises.
This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, or would like the citation to the case, please send a reply to ahetue@keefe-law.com.
