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Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __ U. Ill. L. Rev. __ (forthcoming), available on SSRN.

The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the original Restatement of Torts, published in the 1930s, did not recognize IIED; it first appeared in a supplement in 1948. More importantly, the intentional torts tend to focus on delineated forbidden conduct. The gist of battery is contact; of assault, it is apprehension; of false imprisonment, it is confinement. IIED is broader, vaguer than the other intentional torts. Although vagueness has the advantage of flexibility, it creates significant difficulties in application.

Alex Long’s recent article, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, provides concrete guidance on a specific and important fact pattern.

In spite of Title VII and other antidiscrimination statutes, discrimination and harassment in the workplace remain a problem. Long wants to use tort law to help. Mindful of courts’ reluctance to use the tort of IIED in the employment context, Long singles out a limited set of circumstances for liability. He argues that “courts should recognize retaliatory conduct as an especially weighty factor in deciding whether conduct is extreme and outrageous for purposes of IIED claims, particularly where it is coupled with discriminatory conduct.” (P. 4.) Long’s reasoning is partially instrumental; deterring retaliation would arguably incentivize people to complain about and, thus, reduce harassment. He focuses primarily, however, on the harm to the victim, using social science research to support his argument.

Long begins by covering the basics of IIED and its vague standard of extreme and outrageous conduct. He notes that the lack of a clear standard is one of the defining traits of the tort, creating the danger of unpredictable outcomes. Concerns about limiting the tort are as old as the tort itself. Recognizing the dangers of vagueness, courts have set a demanding threshold for liability and attempted to find concrete circumstances under which liability is imposed. The Restatement (Third) of Torts lists potential indicators of extreme and outrageous conduct, including: “the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor, and whether the conduct was repeated or prolonged.”1

As reluctant as courts are to allow liability in general, some are particularly leery of liability in the employment context. Many courts there take an “especially strict approach” to the extreme and outrageous standard, and Long provides the case examples to prove it. To the extent courts justify this tightening of the standard, they tend to do so on the grounds of preserving the employment at-will rule and employer discretion. Significantly, discrimination and harassment, by themselves, rarely meet the extreme and outrageous standard, and again Long documents this admirably. For example, Long describes a 2012 case in which a supervisor referred to a Black man as a monkey, sent a KKK-themed text depicting a noose to another employee, and used racial epithets on a nearly daily basis. An Illinois federal court held that this behavior did not reach the level of extreme and outrageous conduct.2

Title VII and other antidiscrimination statutes also make it illegal to retaliate for exercising certain rights, such as opposing unlawful discrimination. Yet it is a rare case in which retaliation creates a jury issue on the question of extreme and outrageous conduct, even if the retaliation is unlawful. A few jurisdictions, however, recognize that discriminatory or harassing conduct combined with retaliation may be extreme and outrageous. Focusing on Pennsylvania and Illinois, Long cites cases containing both factors that at least survive motions to strike. The key is that these courts do not view the discrimination or harassment and the retaliation as isolated, but as inextricably linked.

Long advocates for the further adoption of this minority approach. He notes that one potential benefit of expanding liability on these facts is that retaliation may decline. If retaliation declines, arguably more victims would feel comfortable reporting harassing and discriminatory conduct, which misconduct itself would decline. Long largely relies on the fact that retaliation stemming from opposition to harassment or discrimination is a “special kind of wrong” that has a “greater detrimental impact upon victims.” (P. 38.) To establish that harassment and discrimination are particularly harmful, Long reviews social science research linking harassment and discrimination victims to feelings of humiliation, which Long ties to powerlessness. Humiliation, and the sense of powerlessness, is aggravated if there is no way to express the grievance. Retaliation often cuts off the avenue for voicing grievances.

You know a paper is enjoyable when you wish the author had expanded it. I am intrigued by the similarities between Long’s article and a recent piece by Cristina Tilley.3 In that article, Tilley attempts to fortify IIED using neuroscience. She argues the gist of outrageous conduct is based in biology, and is, therefore, objective. The “fight or flight” response in human beings is positive in that it serves to aid survival. When the response is triggered, but external impediments prevent a person from acting, antisocial emotional distress is created. Tilley argues it is the purposeful creation of this antisocial emotional distress that is the crux of outrageous conduct.

Both Long’s and Tilley’s articles use scientific research to reduce the vagueness of the extreme and outrageous requirement by identifying circumstances under which liability is particularly appropriate. Moreover, it seems that Long’s category of liability would qualify as objective under Tilley’s taxonomy. An employee with power over another employee harasses or discriminates against them and then retaliates for protected opposition to that conduct. The employee with power is an external impediment to action, leaving the other employee feeling, and actually being, powerless. Is there a formula here? Can we map liability in IIED beyond the category identified by Long?

Regardless of whether further advances are possible, Long’s article is a good and convincing read. Long has articulated a discrete and concrete set of facts under which liability should flow. He is helping to fill the gaps in the vagueness of IIED.

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  1. Restatement (Third) of Torts: Phys. & Emot. Harm § 46 cmt. D (2012).
  2. Golden v. World Sec. Agency, Inc., 884 F. Supp.2d 675, 683-84, 697 (N.D. Ill. 2012).
  3. Cristina Carmody Tilley, The Tort of Outrage and Some Objectivity About Subjectivity, 12 J. Tort L. 283 (2019).
Cite as: Christopher J. Robinette, Filling the Gaps in IIED, JOTWELL (April 14, 2021) (reviewing Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __ U. Ill. L. Rev. __ (forthcoming), available on SSRN),