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

48 Pages Posted: 13 Apr 2021

See all articles by Alex B. Long

Alex B. Long

University of Tennessee College of Law

Date Written: March 26, 2021

Abstract

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.

Keywords: Discrimination, Retaliation, IIED, Outrage, Employment

JEL Classification: K10, K13, K19

Suggested Citation

Long, Alex B., Using the IIED Tort to Address Discrimination and Retaliation in the Workplace (March 26, 2021). University of Illinois Law Review, Forthcoming, University of Tennessee Legal Studies Research Paper No. 412, Available at SSRN: https://ssrn.com/abstract=3813251

Alex B. Long (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Ave.
Knoxville, TN 37996
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
22
Abstract Views
108
PlumX Metrics