Managing the work environment, from a legal perspective, can be a daunting task. A delicate balance must often be maintained between ideological extremes. Take for instance the differences between political correctness and what is often termed the “good ol' boys” environment. One theory says, “Do your work any way you want and let the chips fall where they may.” The other subscribes to doing your work after you ensure that nobody could be offended by your work. One side chides, “Suck it up and get your work done,” while the other side responds, “I'll be glad to do that as soon as you take your hand off my knee.” Managing and surviving within this diverse work environment with employees who range from Chromagnum man to Susan B. Anthony is a constant battle. The legal problems that arise from this diversity are as old as the workplace itself.
Some think that social mores and political correctness have gone way too far these days. As Jerry Seinfield says, “Ya know, I don't get it. I'm not allowed to ask a Chinese person where a Chinese restaurant is? I mean, aren't we all getting a little too sensitive? I mean, somebody asks me which way is Israel , I don't fly off the handle.” 3Others counter noting that corporate morality today is far too loose. Upon being asked by his employer whether he slept with the cleaning lady, George Costanza responds, “Was that wrong? Should I not have done that?” 4The blending (or clashing) of these conceptual extremes in the workplace environment is fertile ground for labor and employment lawyers.
Imagine how many lawsuits have resulted from an “old school” employer trying to flex his muscle at the expense of a sensitive employee. A cause of action that is frequently alleged in Texas in suits arising out of the employment context is the tort of intentional infliction of emotional distress (“IIED”). A critical element of this tort is that the conduct involved must be “extreme and outrageous.” Conduct that is “extreme and outrageous” must go “beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community.” 5Mere rude behavior or behavior that is tortious does not alone amount to outrageousness. 6Likewise, simply being insulted, treated indignantly, annoyed, threatened, or oppressed does not rise to the level of extreme and outrageous conduct. 7“[P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” 8However, what is extreme and outrageous outside the workplace is not necessarily extreme and outrageous in the context of the workplace. Or is it?
Texas Courts have taken the approach that the standard of extreme and outrageous behavior supporting an IIED claim is somewhat heightened in the workplace environment. 9The Texas Supreme Court recognized this distinction in the landmark case of GTE Southwest, Inc. v. Bruce . That court noted the prevailing view in Texas that an “employer must have latitude to exercise these rights [supervise, criticize, demote, transfer, and discipline employees] in a permissible way, even though emotional distress results.” 10However, that line of distinction may be blurred, and appears to be less significant in today's Texas jurisprudence.
The case of Jackson v. Creditwatch, Inc. illustrates the decline in the distinction between extreme and outrageous conduct in and out of the workplace. In that case, an employer told his employee, Jackson, that he “wanted to f*** her brains out” and exposed himself to her while using sexually explicit language. 11He also yelled at Jackson in front of other employees saying “he was sick and tired of [her] smart anecdotes,” and told her to “go to her room.” While on vacation, Jackson learned that she had been demoted. When she asked about the demotion, she was fired and her employer refused to provide any references. In the face of this inexcusable behavior, the court held that these actions by the employer were not sufficiently extreme and outrageous to support a claim for IIED. The story continues: two months after the termination, the employer also threatened to fire a co-worker who shared an apartment with Jackson unless the co-worker evicted Jackson . Under the threat of being fired herself, the co-worker reluctantly forced the unemployed Jackson to move out. The Fort Worth Court of Appeals held that coercing an eviction was “extreme and outrageous.” The critical distinction here was that this particular conduct occurred after Jackson had been fired. Hence, the reason that this incident was extreme and outrageous, as opposed to the prior harassment, was because of the difference in how courts assess behavior under the tort of IIED.
The Texas Supreme Court, however, disagreed, and reversed the Fort Worth Court of Appeals in Creditwatch, Inc. v. Jackson . 12From the Supreme Court's opinion, two points of emphasis emerge. First, the court reaffirmed that the tort of IIED is merely and exclusively a “gap filler,” because the alleged conduct could fall under another recognized statutory or common-law cause of action (even though not plead, or legally barred); then, the tort of IIED cannot apply as a matter of law. “Even if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.” For example, as in Creditwatch , if the plaintiff sues under the TCHRA for sexual harassment but that claim is barred by the statute of limitations, the plaintiff cannot also sue for that same conduct under the tort of IIED. The tort of IIED is available if there is any “outrageous” conduct that is not already covered by any conceivable cause of action that could be pled.
The second and more subtle point from Creditwatch is the changing line of demarcation between conduct inside and outside of the employment context in an IIED analysis. The Texas Supreme Court addressed the plaintiff's eviction, which took place two months after her employer terminated her. The court recognized that this was “callous, meddlesome, mean-spirited, officious, overbearing, and vindictive,” but was not extreme and outrageous. This comes on the heals of the court's statement that “‘ordinary' post-termination disputes are insufficient to support liability.” Here the line grows dim, or possibly a new standard flickers to light. After an employee is terminated, there is an indeterminate period of time which allows for “post-termination disputes” in which this heightened workplace standard, apparently, still applies in defining what is extreme and outrageous in Texas . Moreover, the court went on to note that the gap-filler character of the tort of IIED applied to the post-termination conduct because the plaintiff could still bring a cause of action for wrongful eviction or tortious interference with contract. 13
All of this begs an obvious and practical question: “Just how bad does it have to be?” More precisely, to what extreme level of outrageousness does conduct have to rise (or, more aptly, sink) to create a fact issue on the “extreme and outrageous” element of IIED in the workplace?
Defining Extreme And Outrageous Conduct
The seminal case on IIED in the Texas workplace is GTE Southwest, Inc. v. Bruce . 14In that case, the Texas Supreme Court for the first (and only) time held that there was some evidence to support a claim for IIED in an employment setting. There, several employees brought IIED claims against GTE based on the behavior of a GTE supervisor, a former Army supply sergeant. The supervisor's conduct included using the harshest, most vulgar obscenities; continual physical and verbal threats and terrorizing employees; running toward employees with balled fists and stopping uncomfortably close to them while yelling; pounding fists on a table; flying into a rage over employees leaving a purse or umbrella laying around the office; repeatedly threatening to terminate employees for no reason; forcing an employee to stand at attention before him (as if he were a drill sergeant) for as long as thirty minutes while he reviewed papers and talked on the phone; shouting over a spot on the carpet and forcing an employee to clean floor-spots on her hands and knees; forcing employees to vacuum even though GTE employed a janitor to clean the floor; and requiring an employee to wear a note on her shirt that said, “Don't forget your paperwork.” Rather than looking to each isolated incident to determine if it was extreme and outrageous, the court held that when the alleged harassment is severe and continual, courts must evaluate this conduct as a whole to determine whether it is extreme and outrageous. 15The court described this workplace environment as a “den of terror” for the employees. This abusive conduct was the order of the day, not merely isolated occurrences. The court held that this purposeful humiliation and intimidation, and fear for one's physical well-being at the hands of a supervisor, raises a fact issue and constitutes some evidence to support a claim for IIED. Keep in mind, the Bruce court did not hold that the facts of that case were the new minimum threshold for extreme and outrageous conduct, but simply that those facts in that particular case were some evidence to support the jury's findings.
Since the Texas Supreme Court held in favor of the plaintiff, many wondered if this was in fact a plaintiff-friendly decision—far from it. The bar for what constitutes extreme and outrageous conduct appears to have been set rather high (almost unreachable) under Bruce . But would courts in the future treat Bruce as an absolute minimum threshold for extreme and outrageous conduct, or continue to engage in their own analysis and treat Bruce as an example of extreme and outrageous behavior, but recognize that less offensive conduct could still be extreme and outrageous? The line of IIED cases in Texas following Bruce is very telling.
What Is Not Extreme And Outrageous
Since 1999, when the Texas Supreme Court decided Bruce , nearly every court to address IIED in the workplace has held that the conduct was not extreme and outrageous. Of the few that held that certain conduct was extreme and outrageous, most were reversed by the Texas Supreme Court. Reversal also befell Texas federal district courts holding that conduct was extreme and outrageous with just a few exceptions. Because there are so many post- GTE cases holding that workplace conduct is not extreme and outrageous, the following cases will simply serve as examples.
In Tiller v. McLure , 16 a widow of a concrete contractor (who was running her husband's business while he was dying from a brain tumor) sued a project owner for IIED. While the husband was suffering from the tumor and after his death, the project owner would call the widow and constantly complain about the progress on the project. After the widow decided to shut down construction on the site on the day of her husband's funeral, the project owner called the widow and informed her that if all construction ceased on that day, he would terminate the contracts. The plaintiff prevailed in the court of appeals, but the Texas Supreme Court reversed and held that this rude behavior was not extreme and outrageous. The basis for the decision was that the acts of the project owner (viewed individually and collectively) were nothing more than rude, curt, and insensitive displays, but not extreme and outrageous. The court looked to and relied on other similar cases, and held that the conduct in this case simply did not rise to the level of extreme and outrageous behavior under the tort of IIED.
In response to the question, “How bad does it have to be?” the answer is, “ Really bad.” In Dillard Department Stores, Inc. v. Gonzales , Mr. Gonzales was the subject of continuous s ame-sex harassment involving his supervisor caressing Gonzales, calling Gonzales “his little pumpkin,” wrapping his arm around Gonzales's midsection, coming up from behind and affectionately hugging Gonzales, making comments to Gonzales with overt sexual innuendo, and repeatedly rubbing his genitals up against Gonzales. 17After Gonzales noticed that his supervisor was on his same flight on his vacation, Gonzales feared that he was being stalked by his supervisor. The court held that this conduct was not extreme and outrageous after merely comparing it to the facts of Bruce and noting that the behavior here is “not even close to the ‘den of terror' described in Bruce.” This is the extent of the Gonzales court's analysis, further demonstrating that courts have interpreted Bruce as the minimum threshold of what constitutes extreme and outrageous behavior.
The bottom line is that the bar is almost overwhelmingly high to maintain a cause of action for IIED in the workplace, but not altogether impossible.
What Could Be Extreme And Outrageous
There have been just a handful of cases since GTE that have held there is some evidence or a fact question on the element of extreme and outrageous conduct that can go to a jury for a final determination on the facts. However, these cases have their problems.
Probably the strongest such case demonstrating a fact question on extreme and outrageous conduct is Fields v. Teamsters Local Union , in which the court held there was some evidence of extreme and outrageous conduct. 18The salient facts were that the employee was a single mother who needed her job, and her supervisor knew this and held it over her head. He forced the employee to dance with him at a club, asked her over to his apartment for “pizza, beer, and a hot tub,” repeatedly asked her out and flirted with her on a continual basis, implied that her job was contingent on having a physical relationship with him, stated that he knew she was a single mother who was critically dependent on her job and benefits, and kept in view in his office an unclothed sex doll. The court held that these actions, taken together, were some evidence of extreme and outrageous behavior. The court focused on two distinct factors that led to this conclusion. First, the extreme and outrageous nature of the conduct was magnified due to the position of authority that the supervisor wielded over the plaintiff. 19However, that factor would exist in every case in which the defendant outranks the plaintiff. The court also relied on the fact that the supervisor was aware of the employee's susceptibility to emotional distress (single mother with two children dependent on her job). 20Of course, most employees are dependent on their job for the financial security of their families. The court recognized that the case was a close call, and held that there was a fact issue regarding the element of extreme and outrageous conduct.
The Subjective Nature of IIED Analysis
No doubt, some have read this article and thought that certain conduct would surely fall within the bounds of extreme and outrageous conduct only to see a court disagree with the reader's initial analysis. This simply reinforces the subjective nature of determining what is extreme and outrageous in the workplace.
A good case to illustrate this point is Gonzales v. Willis . In that case, the defendant promised to assist Willis in getting a job. 21Rather than assist her in getting a job, the defendant repeatedly used lurid and explicit language requesting Willis to engage in a number of sexual encounters with him, even engaging Willis's co-workers to relay the defendant's indecent proposals. The court in Gonzales pointed to other cases which held that similar conduct was and was not extreme and outrageous, and then concluded that Willis's allegations were sufficient to raise a fact question on the issue of extreme and outrageous conduct.
The Gonzales court prefaced its analysis and holding with the assertion that the analysis in this area of law is somewhat “amorphous.” Specifically, the court recognized Justice Hecht's concurrence and dissent in Twyman wherein he discussed the lack of guidance courts have in determining what is extreme and outrageous and “ that the test is essentially a subjective one.” 22This subjective aspect of the analysis under the element of “extreme and outrageous” is further highlighted by the fact that “the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!'” 23The Gonzales court further noted that the relationship between the victim and the tortfeasor should also be taken into consideration in the IIED analysis.
This analysis, not unique to Gonzales , raises some questions that have not yet been addressed or raised in Texas jurisprudence. Given that courts recognize that IIED analysis is subjective in nature, what subjective circumstances should be taken into consideration? For example, the community standard of what is “outrageous” will likely be different from one community to the next, just as it would from one individual to the next. What may cause an average member of the community in Tyler , Texas to cry “Outrageous!” may not raise an eyebrow in Dallas , Texas . Consequently, the court in Gonzales raises a good point when it states that similar cases have held that similar facts did and did not rise to the level of extreme and outrageous behavior; therefore, “ [n]one of these cases is binding on us; their holdings merely provide proof that the extreme and outrageous standard is somewhat amorphous.” In other words, these cases are helpful, but each case must be decided on its own merits in its own subjective context. This subjective context should include what would cause a person in that particular community to exclaim, “Outrageous!” That is, if an IIED case originates in rural Joshua , Texas and is appealed to the Fort Worth Court of Appeals, the justices should not ask themselves what is extreme and outrageous in the Fort Worth community, but rather, what would cause the average member of the small community in Joshua , Texas to say, “Outrageous!” The results may very well dictate whether the facts (in that community) raise a fact issue for the trier of fact to decide as opposed to a trial or appellate judge resolving the issue as a matter of law. It is fundamentally unfair for a single court in Austin , Texas to dictate a state-wide “outrageous” standard applicable in every city, suburb, small town, and rural setting across Texas . The reason why it is unfair is because it is impossible.
In a similar fashion, should the employment setting be taken into consideration? Obviously, what would cause a church secretary to say “Outrageous!” may be a far cry from what a checkout attendant at an adult bookstore would call “Outrageous!” What is extreme and outrageous in the women's quilting club is not likely to compare with what is extreme and outrageous on the “good ol' boys” construction crew. Similarly, what is outrageous in one court's opinion would not necessarily be controlling in another work environment or in another community. As with most articles of clothing, one size does not fit all.
An illustration from Restatement (Second) of Torts helps to demonstrate this point. Restatement (Second) of Torts section 46 “Outrageous Conduct Causing Severe Emotional Distress,” was adopted by the Texas Supreme Court in the case of Twyman v. Twyman . Since then, other Texas courts have relied heavily on the comments and illustrations in Restatement section 46 in their IIED analysis. 24Restatement (Second) of Torts section 46 references section 48 which discusses the liability of common carriers for insults by servants. 25Section 48 offers an illustration that demonstrates the distinction between those who may or may not be offended by the same conduct.
A, a mature man, and B, his ten year old daughter, are in the waiting room of the station of C Railroad, waiting for their train. Employees of C in the 26adjoining station agent's office use vulgar and profane language, knowing that it will be overheard in the waiting room, and that the passengers are there. A is accustomed to such language and is in the habit of using it himself; B is not. C Company is subject to liability to B, but not to A. 27
The Restatement clarifies here that what may be offensive to one person (given their subjective background) may not be offensive to another. Likewise, what may be extreme and outrageous in one community or in a particular work environment may be acceptable or tolerable in another community or office setting.
There are certain situations where the work environment is somewhat universally consistent which may not require any specific analysis into the particular work environment factor. Nevertheless, there are obviously some work environments where more or less crude and rude behavior may be the order of the day, and could certainly affect the court's analysis as to what is extreme and outrageous in that particular environment. However, these arguments regarding the subjective, specific community standard and work environment have not been raised or addressed in Texas jurisprudence.
It is easy to see why there is such a dearth of cases supporting a claim for IIED in the workplace in Texas . The type of facts that support the element of extreme and outrageous conduct are facts that scream “Settle!” to alert defense counsel long before an appeal is on the horizon. When the facts are lewd, lascivious, salacious, and outrageous, that might be a case in which the plaintiff can maintain a claim for IIED.
However, all is not lost for the vigilant plaintiff's attorney. Simply because the plaintiff cannot maintain a claim for IIED does not mean that he or she cannot pursue a Sabine Pilot claim, a wrongful termination claim, a TCHRA claim, a whistle-blower claim, a Title VII claim, an ADEA claim, an ADA claim, etc. Employment law is still well and alive in Texas , but the tort of intentional infliction of emotion distress is quickly going the way of George Costanza's fiancé—dead.
1Jackie Chiles in the Seinfield episode, “The Caddy.”
2Kevin G. Cain is Senior Counsel with the law firm of Martin, Disiere, Jefferson & Wisdom, L.L.P. in the appellate section.
3Jerry Seinfield in the Seinfield episode, “The Cigar Store Indian.”
4George Costanza in the Seinfield episode, “The Red Dot.”
5Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex. 1993) (citing Restatement (Second) of Torts § 46 (1965) cmt. d).
6Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) .
7GTE Southwest, Inc. v. Bruce , 998 S.W.2d 605, 612 ( Tex. 1999).
8Restatement (Second) of Torts § 46 cmt. d.
9See, e.g., Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 900-01 (Tex. App.—Amarillo 1995, no writ) ; Amador v. Tan, 855 S.W.2d 131, 135 (Tex. App.—El Paso 1993, writ denied) ; Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App.—San Antonio 1992, writ denied) (“Incidents in which a Texas court has determined the conduct to be extreme and outrageous in the employer/employee setting are few.”).
10GTE Southwest, 998 S.W.2d at 612.
11Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 399 (Tex. App.—Fort Worth 2002), rev'd, 157 S.W.3d 814 ( Tex. 2005). The court held that this particular incident could not serve as the basis of a claim for intentional infliction of emotional distress, but it could be used to establish the context of other incidents that fell within the applicable statute of limitations. Id. at 405.
12Creditwatch, Inc. v. Jackson , 157 S.W.3d 814 ( Tex. 2005). The Texas Supreme Court expressed a little distress over the growing number of IIED cases it has reversed by noting in the first sentence of its opinion, “For the tenth time in little more than six years, we must reverse an [IIED] claim for failing to meet the exacting requirements of that tort.”
13Id. at 818 (This comes after the court recognized that the plaintiff was living with a friend “gratis.” If the plaintiff was staying with the friend “gratis,” that is, without recompense, then it is not likely that the plaintiff had a contract, lease, or agreement with anyone, much less her former employer or friend, regarding her so-called rights as a so-called tenant. Consequently, there likely could not be any cause of action for wrongful eviction or tortious interference with contract as the court asserted.).
14998 S.W.2d 605 (Tex. 1999) .
15Id. at 616 (“We agree with the overwhelming weight of authority in this state and around the country that when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a whole in determining whether it is extreme and outrageous. Accordingly, we hold that the court of appeals did not err in doing so.”).
16Tiller v. McLure , 121 S.W.3d 709 ( Tex. 2003).
17Dillard Dep't Stores, Inc. v. Gonzales , 72 S.W.3d 398, 401-02 (Tex. App.—El Paso 2002, pet. denied).
18Fields v. Teamsters Local Union , 23 S.W.3d 517, 533 (Tex. App.— Houston [1st Dist.] 2000, pet. denied).
19Id. at 532 (relying on Restatement (Second) of Torts § 46 cmt. e and illus. 7).
20Id. at 533 (relying on Restatement (Second) of Torts § 46 cmt. f and illus. 11).
21Gonzales v. Willis, 995 S.W.2d 729, 732-33 (Tex. App.—San Antonio 1999, no pet.) .
22Id. at 735 (citing Twyman, 855 S.W.2d at 629 (Hecht, J., concurring and dissenting)) .
23Id. at 735 (citing Restatement (Second) of Torts § 46 cmt. d) .
24See , e.g., Fields , 23 S.W.3d at 530 (citing Restatement (Second) of Torts § 46 cmts. d, h, j); Id. at 532-33 (citing Restatement (Second) of Torts § 46 cmts. e, f, j, illus. 7, 11, 13).
25Restatement (Second) of Torts § 46 cmt. d (1965).
26Id. at § 4 8 illus. 5 (1965).