Download This PaperModern Racism but Old-Fashioned IIED: How Incongruous Injury Standards Deny ‘Thick Skin’ Plaintiffs Redress for Racism and Ethnoviolence
28 Pages Posted: 27 Apr 2020
Date Written: December 17, 2019
Abstract
Many targets of racism and ethnoviolence seek redress in the courts for their physical, emotional, and dignitary injuries -- often through suits for intentional infliction of emotional distress (IIED). Unfortunately, however, a prima facie IIED tort includes a “severe emotional distress” injury standard that is ill-suited to address the harms of plaintiffs suffering racism and ethnoviolence. Indeed, many people of color, in response to decades of chronic racism, develop “thick skins” and consequently do not manifest the mental and emotional injuries of racist incidents in the “right way” to allege an injury cognizable within IIED law. Thus, because their experiences do not fit within the rigid confines of the pathological disorders historically used to define "severe emotional distress," they are completely barred from seeking legal remedy. But, the psychological community is increasingly moving to accept standards of traumatic stress that are uniquely responsive to the lasting harms of chronic racism -- and IIED law must follow suit. This Comment therefore proposes that, rather than blindly adhering to incongruous injury standards that deny many thick skin plaintiffs redress, IIED law should incorporate the race-based traumatic stress (RBTS) theory into its injury standard in cases involving racism and ethnoviolence.
Keywords: race, racism, tort law, IIED, ethnoviolence, discrimination, microaggressions, race-based traumatic stress, PTSD, dignitary torts
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