Examining the Efficacy of the Common Law Tort of Intentional Infliction of Emotional Distress and Bullying in the Context of the Employment Relationship

Abstract

The common law tort of intentional infliction of emotional distress (IIED) is a frequently occurring lawsuit. It seems that in almost every wrongful discharge suit by a terminated employee at-will, or lawsuit to redress bullying-like conduct at work, or lawsuit pursuant to civil rights act for discrimination or harassment there appears a count for the IIED tort. As such, there are many, many IIED cases; however, this article demonstrates that there are only a handful of cases that are successful due to the various elements to the tort as well as the high evidentiary hurdles to sustain those elements. This article explicates the elements of the tort and illustrates those elements in the context of wrongful discharge, bullying, and discrimination/harassment lawsuits. The authors discuss the implications of the tort, particularly for management; and provide recommendations to employers on how to avoid liability, especially by bully-proofing the organization, and also to employees on how to sustain an IIED cause of action.