So, regardless of an attorney’s feelings about the IIED tort in employment cases, the tort is at least worth consideration. According to the Supreme Court, “[i]f properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) Code, § 12965(b).). He recently represented clients successfully before the California Supreme Court in a case involving the special employment doctrine, obtaining a reversal of a prior published decision by the Court of Appeal. The McKenna court went on to hold that the plaintiff’s anguish was insufficient to satisfy the requirements of IIED. 8. Perhaps the most obvious situation is that of a plaintiff whose FEHA claim is time barred by either a failure to file a timely administrative charge with the Department of Fair Employment and Housing, or by the failure to file a lawsuit within one year from the Department’s issuance of a “right to sue” letter. That conduct included refusing to listen to the plaintiff’s complaints about retaliation, encouraging efforts to silence the plaintiff, awarding a commendation to the harasser and participating “in the Department’s retaliation against Light (including denying promised training and shifting Light’s work location).” (14 Cal.App.5th at 102.) Depending upon the facts of an individual case, FEHA allows plaintiffs who successfully assert claims in an employment setting to be awarded back pay, front pay, reinstatement, compensatory damages for pain and suffering, punitive damages and injunctive relief. Judicial Council of California Civil Jury Instructions, California Fair Housing and Employment Act, Light v. California Department of Parks & Recreation, California Family Medical Leave Act (FMLA). Conversely, cases suggest that if an IIED claim is not tethered to conduct in violation of FEHA, that claim is likely to be deemed preempted by workers’ compensation exclusivity. For instance, if an employee suffered emotional distress as a result of facing racial harassment on the job or workplace sexual harassment, she could bring a claim under the California Fair Housing and Employment Act (FEHA) and she could likely sue for emotional distress as part of that claim. The assertion of an IIED claim greatly increases the odds that the plaintiff will be required to submit to a mental examination pursuant to California Code of Civil Procedure section 2032.310 et seq. Plaintiff Melony Light was an employee of the California Department of Parks and Recreation (the “Department”). “But where an employer’s conduct implicates considerations of substantial public policy, interests beyond those of the employer and employee are involved. He truly cares about his clients. In Wassmann v.South Orange County Community College District, No. That statute allows a defendant to move the court for an order compelling such an examination “for good cause shown.” (Code Civ. On this point, it may be appropriate to let the California Supreme Court have the final word: “A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client. 2012) 894 F.Supp.2d 1258, 1274-1275.) He knows the law and was my advocate every step of the way. ), The rationale underlying that preemption is often referred to as the “workers’ compensation bargain.” The California Supreme Court explained that “the basis for the exclusivity rule in workers’ compensation law is the ‘presumed “compensation bargain,” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.’” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708. Anguish is insufficient to meet that standard. California Independent Contractor Law – Employment Guide, ExxonMobile and Torrance Refining Company to Pay $4.4 Million in Class Action Settlement, American Income Life Insurance Settles Class Action Case with Two Compensation Funds, Albertson’s Settles California Wage & Hour Class-Action Lawsuit, Burlington Coat Factory Agrees to Settle Class Action Lawsuit, California Employment Drug Test Laws – Know Your Rights, Signs You Have a California Workplace Religious Discrimination Case. Employee May Sue Supervisor for Intentional Infliction of Emotional Distress By Joanne Deschenaux, J.D. Even if these requirements seem straightforward, they rarely are. During the course of the discussion, a supervisor repeatedly directed ugly racial epithets at the plaintiff. Your case and make sure that your claim is vulnerable to dismissal adverse employment actions of make. 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