Using the IIED Tort to Address Discrimination and Retaliation in the Workplace

Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an “especially strict approach” in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, the IIED tort currently has a limited role to play in the fight against workplace discrimination and harassment. At the same time, a few courts—almost undetected in the literature on the subject—have recognized that one form of employer conduct may merit special treatment when assessing an IIED claim against an employer. According to these courts, the fact that an employer has engaged in retaliatory conduct may be “a critical and prominent” factor in assessing an employer’s behavior, particularly where it is in response to complaints of underlying discriminatory conduct. Drawing upon social science research into the phenomenon of retaliation, the Article 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.

Williford Gragg Distinguished Professor, University of Tennessee College of Law. Thanks to Nicole Buonocore Porter for comments on an earlier draft. Thanks also to Morgan Webber, Michael Trotter, and Will Hitchcock for their research assistance.

The full text of this Article is available to download as a PDF.