Chapter Seven. Infliction of Emotional Distress and Other Torts the Harasser may have committed

I. Introduction

In addition to the statutory claims under California FEHA and federal Title VII, a victim of sexual harassment may also have related common law tort claims against the harasser. Depending upon the circumstances of the case, attorneys make tactical decisions as to whether to accompany a claim for sexual harassment with a claim for infliction of emotional distress, assault, battery, defamation, invasion of privacy, or some other tort that might fit the circumstances. Tort claims can be particularly useful in the event that a statutory element or prerequisite for a claim has not been met, such as when a plaintiff has failed to obtain a right to sue letter for all or part of a harassment claim.

A sexual harassment victim should be aware that mental health care records can come into play in making a claim for psychological damages under sexual harassment statutory claims or for common law tort claims for emotional distress.

When a victim suffers from sexual harassment, there are often related torts that the harasser has committed during the course of the harassment. A tort is a civil wrong recognized by the common law that has caused damage to a person or property, for which a plaintiff can sue for damages. Torts that often coincide with sexual harassment are intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of privacy.

An attorney can advise a victim of sexual harassment on any other claims which the victim may have against the employer or harasser in addition to a sexual harassment claim. The addition of alternative claims may or may not help to attain a greater award for damages, depending on the facts of the case.

Often, an attorney will decide to add a claim for a tort as a back-up devise to the central claim for sexual harassment. However, normally the damages for the harassment and the tort will be duplicative, and therefore will not result in a higher damage award for the plaintiff. If a jury does award damages to a plaintiff for emotional distress under general damages resulting from the sexual harassment, and then also awards the plaintiff damages for the tort of infliction of emotional distress based on the same harassing conduct, the damages could be duplicative, and the award could be dramatically reduced by the court.

II. Intentional Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, a victim must prove that the defendant’s conduct was outrageous and that the defendant either intended to cause emotional distress or acted with reckless disregard of the probability that the victim would suffer emotional distress, knowing that the victim was present when the conduct occurred. The victim must also prove that he or she actually suffered severe emotional distress, and that the defendant’s conduct was a substantial factor in causing the severe emotional distress.

“Outrageous behavior” has a specific legal meaning in California. Judicial Council of California Jury Instruction, CACI 1602, states that “outrageous behavior” means conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if “a reasonable person would regard the conduct as intolerable in a civilized community.” Outrageous conduct does not include trivial matters such as “indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”

A. Common Law Verses Emotional Distress as Part of Damages for Sexual Harassment Claim

Proving that conduct was “outrageous,” as is necessary to prove intentional infliction of emotional distress, is often a very difficult burden for a victim. For this reason, it can often be best for a victim of sexual harassment not to include a common law claim for intentional infliction of emotional distress and instead rely on proving damages for emotional distress as a part of the sexual harassment claim.

In addition to creating jury instructions, the Judicial Council of California has also created official verdict forms for use in California courts. While they are not mandatory, these forms are often used in sexual harassment cases. There is a different verdict form for each cause of action claimed in any given case. Included on the verdict form, there is a list of possible damages suffered by the plaintiff. The jury is instructed to fill out the dollar amount they believe the plaintiff suffered as a result of each item of damages on the list. Included on the list of items of damages on these verdict forms for sexual harassment cases are past and future noneconomic loss, including physical pain or mental suffering. It is under the category of pain and suffering that the jury can award the plaintiff damages for emotional distress as the result of the sexual harassment claim.

B. Emotional Distress and Workers’ Compensation Law

Although a cause of action for infliction of emotion distress arising from sexual harassment can generally be added to a victim’s complaint, an employee that has suffered from emotional distress at work cannot always bring a civil lawsuit. An employee suffering from emotional distress generally will need to bring a workers’ compensation claim instead of a civil lawsuit. In workers’ compensation law, the exclusive remedy provisions state that a workers’ compensation claim is the exclusive remedy available for injuries that occur at the workplace. This includes both physical and psychological injuries. The court in Accardi v. Superior Court explained:
Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers’ compensation law.

However, the court in Accardi recognized that a civil lawsuit for emotional distress which is caused by discrimination or sexual harassment in the workplace is not barred by the workers’ compensation exclusive remedy provision.

In Accardi, the plaintiff suffered emotional distress because of a pattern of discrimination and brought a civil lawsuit for both sexual harassment and an additional cause of action for infliction of emotional distress. The Accardi court stated that the plaintiff’s cause of action for emotional distress was “founded upon actions that are outside the normal part of the employment environment and violate this state’s policy against sex discrimination.” As such, the plaintiff’s claim for emotional distress was not barred by the exclusive remedy provisions of workers’ compensation laws.

III. Negligent Infliction of Emotional Distress

To establish a claim of negligent infliction of emotional distress, the victim must prove the defendant was negligent, that the victim suffered serious emotional distress, and that the defendant’s negligence was a substantial factor in causing the serious emotional distress.

Judicial Council of California Jury Instruction, CACI 1620 states that emotional distress includes:
suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.

A. Emotional Distress and Discovery

Victims of sexual harassment claim general damages; that is they make a claim for damages based on the pain and suffering that is generally associated with the injury. In addition, many sexual harassment victims claim emotional distress. Claims for emotional distress are supported by particular psychiatric symptoms that the victim suffered as a result of sexual harassment.

When psychiatric symptoms come into play that are beyond the normal pain and suffering associated with the incident and the victim makes a claim for emotional distress, the attorneys for the employer in a sexual harassment lawsuit will make a demand for production of the mental health care records of the victim and may request that the victim undergo a mental examination by an independent psychiatric health care practitioner.

Although a plaintiff in a sexual harassment case may be able to say that his or her general mental suffering is limited to that which is usually associated with the harassment he or she suffered, it is not always advisable for a plaintiff to limit his or her damages in this way in a sexual harassment lawsuit. The core of the claim of damages in a sexual harassment lawsuit for the plaintiff is usually the emotional distress that the plaintiff suffered as a result of being subject to harassment. It is true that the downside of making such a claim is that the victim’s mental health care records come into play as an item of discovery and the defendant employer may request an independent mental examination. However, a plaintiff’s attorney can seek stipulations or in the alternative make motions to the court for protective orders. A typical protective order will limit the exposure of the plaintiff’s mental health care records and mental examination to legitimate uses within the particular lawsuit only.

IV. Assault and Battery

Battery is intentional conduct which results in a harmful or offensive contact with another person. Assault occurs when someone causes you to think that they are about to commit battery against you.

If you are subjected to unwanted touching which is harmful or offensive, then you may have a claim of battery against your harasser. If you are afraid that this kind of unwelcome contact is going to immediately occur, then you may have an assault claim.

For example, if a supervisor intentionally fondles a female employee’s breast as a condition of keeping her job, then on top of having a claim for sexual harassment, the employee may also sue for battery.

V. Conclusion

A sexual harassment victim should discuss the additional common law torts that an attorney might bring as a practical matter to accompany a sexual harassment claim. Victims of sexual harassment should particularly talk to their attorneys about the possible exposure of their mental health care records in relation to claims for psychological damages as a result of sexual harassment. Steps can be taken to obtain protective orders that will minimize who will see the psychological records of the victim.

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