Hostile Work Environment: Intentional Infliction

By Lindsey Novak

March 18, 2021 5 min read

People have heard of and often use the term "hostile work environment" as if it were an easy condition to identify in a workplace. Many employees would like to think anything from ill-tempered conversation to harsh criticism could be considered a hostile work environment. While this type of behavior is unpleasant, and for many, it is hard to ignore, it does not usually meet the legal standards needed to become an actionable legal claim. In no way does that mean an employee was not and is not affected by rude, harshly authoritative and unprofessional behavior. It simply means that employees may not find the legal support for their claims.

According to Jason Krellenstein, an attorney with The Boyd Law Group, most states also recognize a category of extreme and abusive conduct in the workplace based on a civil law model called "intentional infliction of emotional distress." This kind of hostile work environment need not involve attacks on a constitutionally protected class; that is, no discrimination need be present or alleged. Instead, it requires intentional or reckless, and entirely outrageous, conduct toward another employee. This is the rarest form of hostile work claims because the conduct must be so extreme, alarming, daunting, menacing, disturbing — and deliberate — as to adversely affect the victim's psyche. This is an extremely high, almost unattainable, threshold to pass. State laws acknowledge that workplaces may, without court regulation or interference, be difficult or stressful, disputatious, pressure-charged or unpleasant. Only purposefully or recklessly inflicted abusive behavior resulting in severe emotional damage will suffice under this legal theory.

One court has framed the threshold as "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious." Another court referred to behavior as "utterly intolerable in a civilized society." A successful claim for "intentional infliction of emotional distress" by means of a hostile work environment will involve specific, unusual and shocking facts, without the requirement of a constitutional or discriminatory component. Highly unprofessional and improper behavior without such shocking or extreme additional elements will not hold up under this high standard.

For example, as New York and Connecticut licensed attorney Stephen Bourtin states, even highly objectionable conduct or treatment, such as an employer rudely reprimanding or terminating an employee in the presence of co-workers, even in a grossly humiliating or embarrassing way, without such shocking or extreme additional elements is still not enough to state an actionable intentional infliction claim. The standard for intentional infliction of emotional distress is quite different. Rather than consider the abuser's impetus (disdain for a protected class), the victim's emotional trauma is measured. This more nuanced inquiry emphasizes how the victim has been affected instead of the attacker's motivation. It is not uncommon for Texas or New York courts to cite external manifestation of the distress such as weight loss or other physical symptoms as evidence of intense emotional trauma.

Federal law is clearly not the only law to consider. State laws vary, which can make filing charges for a hostile work environment daunting, requiring experienced law firms to avoid any missteps in an employee's career. Some states' laws are more tolerant in accepting actions most would recognize as bad or toxic behavior, while other states take a more protective approach to employees. Often times, local municipal employment discrimination laws, such as the New York City Human Rights Law, offer a much broader range of protection against workplace misconduct of significantly less severity.

The bottom line is when an employee is in a situation he or she thinks in intolerable, sometimes the only alternative is to find another job and quit as soon as possible. When in one of those situations, keep notes on the words, conversations and actions (and the dates they occurred) of the bosses or co-workers involved and consult with an attorney experienced in employment law. For example: Don't ask a lawyer friend who focuses on real estate closings for an opinion. In the field of law, experience within a specific area matters greatly.

Email career and life coach: [email protected] with your workplace problems and issues. Ms. Novak responds to all emails. For more information, visit www.lindseynovak.com, and for past columns, see https://www.creators.com/features/at-work-lindsey-novak.

Photo credit: succo at Pixabay

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