Employee Can’t Claim Emotional Distress Based on Workplace Harassment

The Seventh Circuit recently took on, and eventually barred, an emotional distress claim for sexual harassment in the workplace in Richards v. U.S. Steel, 88 F.3d 557 (7th Cir. 2017).  The Plaintiff could not file a claim under the Illinois Human Rights Act (the Act), so instead filed a common law claim for intentional infliction of emotional distress.  The court threw out the emotional distress claim, because the Act preempted it.

The Richards facts

After fourteen years at the defendant company, Plaintiff employee Richards participated a four-month electrician training rotation program.  It was at that point that the harassment allegedly started.  The department supervisor told her she would never be able to meet his standards as an electrician.  After that rotation, she transferred to another department, where Richards testified she was subject to inappropriate comments and behavior by the supervisor.  She complained of a variety of conduct, testifying that the supervisor pulled her jacket open and made a vulgar comment; jerked her radio off her chest, where it was attached to her bra; commented on whether something she was standing on would hold her weight; dared Richards to call him an insulting name; and told lewd jokes in her presence.  When she complained of the conduct and filed a discrimination complaint with the company, she was told she needed to adjust to the supervisor’s rough management style, that she was too emotional, and that she should see a psychiatrist.

After most of Richards’ claims against U.S. Steel were dismissed as filed too late, Richards was left with only her claim for intentional infliction of emotional distress under Illinois common law.  The employer won summary judgment in the trial court, and Richards appealed.

The appellate court decides Richards’ distress claim is preempted

The Act provides that claims brought under it preempt claims for the same conduct at common law.  On appeal in Richards, the court had to determine whether the facts alleged by Richards, specifically, were preempted – a case-by-case analysis.

The only way a plaintiff could bring an emotional distress claim for sexually harassing conduct is if the conduct was “extreme and outrageous.”  However, if an employee’s acts were “extreme and outrageous” sexual harassment, or constituted assault, they could not be attributed to the employer under common law, because they did not “serve” the employer under agency principles.  So, any part of the claim based on “extreme and outrageous” conduct had to be dismissed, since the case was brought only against U.S. Steel.

The parts of Richards’ emotional distress claim that were based on conduct that was not “extreme and outrageous” – or, conduct that actually did serve the employer – likewise had to be dismissed.  The Act created a new duties, for example, not to engage in sexually harassing behavior, even where the behavior did not arise to “extreme and outrageous” conduct actionable at common law.  The law defines “extreme and outrageous” as going beyond “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” and “beyond the parameters of the typical workplace dispute.”  Where the acts are these “mere insults” or “indignities,” and the duty with respect to the conduct arises out of the statute, the claim for distress caused by that conduct is preempted.

Practice pointers for dismissing distress claims based on Richards

The key in the Richards case was that Plaintiff did not have an Act claim.  US Steel’s appellate victory was merely because Richards waited too long to file some of her claims, and was barred from proceeding under the Act.  In practice, this could be because the statute of limitations ran on an Act claim, or Plaintiff for whatever reason decided not to bring a claim under the Act.  Where there is only a tort claim, the Richards case provides a road down which counsel could pursue dismissal.

This is a fact-intensive inquiry, and is most likely to be successful after the facts have been developed in depositions, as in Richards, where the Plaintiff had already given her deposition testimony.  The court will look at the specific conduct testified to at deposition.  Does the conduct meet the court’s high standard for “extreme and outrageous” conduct?  If it is, such conduct by an employee cannot “serve the master,” so can’t be the basis of an emotional distress claim against the employer.  If the conduct is not extreme and outrageous, counsel can argue it should be preempted, because the statute creating the duty also demands preemption.

A warning about Illinois Human Rights Act claims

Looking beyond the court’s holding, the decision is a warning to employers.  The Court commented that, had Plaintiff been able to proceed under the Act, it may have required a different response from management, and the employer may have faced a less favorable result in court.  The court’s repeated admonishments of the employer’s conduct are a clear signal that this type of conduct isn’t actionable against the employer as emotional distress, but with a timely filed Complaint could certainly be a source of liability for employers under the Act.