Have you felt emotional distress at work because of the abusive way your boss treats you? Many of the people who contact me for help in dealing with a bully boss feel this way, and they want to sue their boss in court for all the workplace abuse he or she has inflicted.
When someone like this tells me they want to sue, the first thing they say is that their boss caused “a hostile work environment.” (If you still think you can sue for a hostile work environment, you need to sign up for my 7 Free Work Law Secrets Email Course). The second thing people want to sue for is “intentional infliction of emotional distress.” This also rarely works, and I don’t advise pursuing it, but…
…but a women named Gina Strong in Washington State recently has some success suing her boss for negligent infliction of emotional distress. Because she also sued her boss for intentional infliction of emotional distress (and lost on that one), her story is a great example of what legal claims can work if you want to sue your boss and which legal claims don’t (usually) work. Having a boss who did more than just call her names is where Gina’s story starts.
Gina Strong’s Emotional Distress
Gina Strong worked in a school district print shop, where Jim Terrell supervised her. Terrell screamed at Gina every day. Terrell criticized her work in a sarcastic unprofessional manner. Terrell told blond jokes in Gina’s presence, and yes Gina was blond. Terrell even ridiculed Gina’s personal life: he made fun of her new house; he mocked her husband’s job; and he told her that her son would soon realize that she was a “bum” mother.
How did Gina respond to Terrell’s workplace harassment? She responded the in the same way as many of the people who are reading this article have have responded to their own abusive work environments: she vomited, she experienced anxiety attacks, she suffer from depression, and she even began to have a heart arrhythmia.
Gina went to the school district office and filed a harassment complaint against Terrell. A district office employee, Nichollet Koch “investigated” the allegations and found (like every other in-house investigation) that nothing Terrell did to Gina “rose to the level of illegal harassment.” In other words, the organization knew that Terrell was an abusive asshole, but it wasn’t illegal abuse. So, the school district didn’t punish Terrell. It “recommended” that Terrell take some classes to improve his “management style.” Gina was not satisfied.
After the district closed it’s file on the matter, something made the investigator, Koch, look further into Terrell’s behavior. Soon after the district office recommended that Terrell be terminated. Terrell resigned before that happened.
Three months after Terrell had resigned Gina filed a lawsuit against the district officer and Terrell as individuals (not as agents of the school district). Both defendants filed motions for summary judgment – which asks the judge to throw the case out before trial. The court did throw out the case, but Gina was not satisfied. She filed an appeal.
The Appeals Court considered whether Gina could sue her boss for Constitutional violations (the court said no), whether she could sue her boss for “intentional infliction of emotional distress” (the court said no again) and whether she could sue her boss for “negligent infliction of emotional distress” (the court said yes).
The Appeals Court noted that Gina did not allege that Terrell sexually harassed her, or that his conduct created a “hostile work environment based on sex”. Instead the court observed that “the majority of her claims related to Terrell’s method and style of supervision.”
Court Acts on Gina’s “Intentional Infliction of Emotional Distress Claim”
The legal claim of “intentional infliction of emotional distress” is a “tort” (which is not a dessert in this context). A “tort” is a civil wrong – as opposed to a criminal wrong. Torts come from the history of judges writing written decisions about why the judge decided in favor of one side and against the other side.
In the state of Washington, for you to prevail against your boss on the tort claim of “intentional infliction of emotional distress” (IIED for short) you must prove that:
Your boss engaged in extreme and outrageous conduct;
Your boss intentionally or recklessly inflicted emotional distress on you; and
Your boss’s outrageous conduct actually caused you to feel severe emotional distress.
The Washington State Supreme Court adopted these elements from a publication called the Restatement (Second) of Torts sec. 46 (1965). I’ll explain the Restatement more fully in another article, but for our immediate purposes all you need to know is that most states follow the Restatement; so most States, including your state, use the same three elements above for their tort of IIED.
Most people read the elements of IIED and think “Perfect! This is how I’m going to sue my boss!!” The elements seem to fit what their boss does to them. It just sounds right. Their boss purposefully puts them through hell, and they can’t sleep, feel depressed, suffer from anxiety, and begin getting ulcers.
The problem is, most of what your boss does to put you “through hell” does not meet the very high threshold of what it takes to qualify as “outrageous.” In Gina’s appeal the court decided that the first element of IIED, outrageous behavior, must be “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
IIED, said the court “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The court claimed to be sympathetic to Gina’s plight, but said that what her boss did was more in the vein of “insults” and “indignities” and did not cross the boundary into something “beyond all possible bounds of decency” and “atrocious”.
Victory! The Court Allows Gina’s Claim of Negligent Infliction of Emotional Distress
After dismissing her IIED claim, the court turned to Gina’s legal claim against Terrell for the tort of Negligent Infliction of Emotional Distress (NIED). This time, the Appeals Court decided that what Terrell did could possibly rise to the level of NIED, and therefore allowed Gina to take Terrell to trial on the NIED claim.
NIED is more often recognized in the workplace setting when “it does not result from an employer’s disciplinary acts or its response to a workplace personality dispute.” The elements of this claim are:
Boss had a duty to refrain from conduct that would foreseeably harm you;
Boss breached the duty of #1, and did engage in conduct that would cause you forseeable harm;
The boss’s conduct in #2 directly caused you harm
You actually were harmed (you are not exceptionally tough, and didn’t manage to shrug it off);
You have objective medical evidence that you experienced emotional distress (such as your doctor had to prescribe anti-depressants, sleeping pills, or high blood pressure medication).
In Gina’s case against Terrell, she claimed that he did the following things (#2) and had a duty not to (#1) which directly caused (#3) her actual harm (#4), and she also had seen a doctor who could verify her “emotional distress” harm. So, here are the acts that made up element #2, what the boss Terrell should NOT have done:
He continuously made demeaning comments and jokes about her blond hair until she dyed it brown
He mocked the house she purchased
He mocked her husband’s job
He called her a “bum mother”
He spit in her face as he screamed at her for using the wrong bulletin board for union information
He stood so close to her while screaming in her face that she feared he would strike her and felt his spit hitting her face
He disconnected the telephone during the night shift so she could not call out of the print shop
Terrell tried to argue that these actions could not possibly amount to NIED, because they were all “workplace personality disputes” or were related to discipline in the workplace. The court didn’t buy that argument for a second.
The court pointed out that spitting in someone’s face can equal fourth degree assault. Making someone believe you are going to hit them can equal battery. Neither of these two things are a “mere workplace personality dispute.”
The court also pointed out that there was no way the boss, Terrell, could convince them that his comments were all work related. Terrell’s mocking of Gina’s personal life and taunts about her hair color were “rude, boorish, and mean-spirited and were not done in furtherance of legitimate work-related topics… Terrell’s conduct regarding [Gina’s] personal life was not a workplace dispute, although it occurred in the workplace.”
The court then reversed the lower court, and ordered that Gina be allowed to go to trial in front of a jury on the NIED claim.
Undercover Lawyer’s Take Away Tips:
Don’t believe that you can sue a jackass boss for acting like a jackass by using “intentional infliction of emotional distress;” your best bet is, and always will be, to get yourself in a protected class.
You might be able to sue your boss for negligent infliction of emotional distress, but only if your state recognizes this tort and your boss is attacking you as a person and not as an employee.
Keep a journal, take notes, write everything down. It bears repeating that you need to keep dated quotes of what your boss says and does. To pursue an negligent infliction claim you will need to show that he or she lashed out at you in ways that are completely unrelated to workplace issues.
If you want to download the full case to read for yourself, or to highlight the NIED portion and hand to your HR Department when you turn in your own boss, you can view and print it here:
Does your boss attack you as a person, and not your work as an employee? Tell us about it in the comments section below.