Chapter Seven. Infliction of Emotional Distress and Other Torts the Harasser may have committed

I. Introduction

In addition to the statutory claims under California FEHA and federal Title VII, a victim of sexual harassment may also have related common law tort claims against the harasser. Depending upon the circumstances of the case, attorneys make tactical decisions as to whether to accompany a claim for sexual harassment with a claim for infliction of emotional distress, assault, battery, defamation, invasion of privacy, or some other tort that might fit the circumstances. Tort claims can be particularly useful in the event that a statutory element or prerequisite for a claim has not been met, such as when a plaintiff has failed to obtain a right to sue letter for all or part of a harassment claim.

A sexual harassment victim should be aware that mental health care records can come into play in making a claim for psychological damages under sexual harassment statutory claims or for common law tort claims for emotional distress.

When a victim suffers from sexual harassment, there are often related torts that the harasser has committed during the course of the harassment. A tort is a civil wrong recognized by the common law that has caused damage to a person or property, for which a plaintiff can sue for damages. Torts that often coincide with sexual harassment are intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of privacy.

An attorney can advise a victim of sexual harassment on any other claims which the victim may have against the employer or harasser in addition to a sexual harassment claim. The addition of alternative claims may or may not help to attain a greater award for damages, depending on the facts of the case.

Often, an attorney will decide to add a claim for a tort as a back-up devise to the central claim for sexual harassment. However, normally the damages for the harassment and the tort will be duplicative, and therefore will not result in a higher damage award for the plaintiff. If a jury does award damages to a plaintiff for emotional distress under general damages resulting from the sexual harassment, and then also awards the plaintiff damages for the tort of infliction of emotional distress based on the same harassing conduct, the damages could be duplicative, and the award could be dramatically reduced by the court.

II. Intentional Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, a victim must prove that the defendant’s conduct was outrageous and that the defendant either intended to cause emotional distress or acted with reckless disregard of the probability that the victim would suffer emotional distress, knowing that the victim was present when the conduct occurred. The victim must also prove that he or she actually suffered severe emotional distress, and that the defendant’s conduct was a substantial factor in causing the severe emotional distress.

“Outrageous behavior” has a specific legal meaning in California. Judicial Council of California Jury Instruction, CACI 1602, states that “outrageous behavior” means conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if “a reasonable person would regard the conduct as intolerable in a civilized community.” Outrageous conduct does not include trivial matters such as “indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”

A. Common Law Verses Emotional Distress as Part of Damages for Sexual Harassment Claim

Proving that conduct was “outrageous,” as is necessary to prove intentional infliction of emotional distress, is often a very difficult burden for a victim. For this reason, it can often be best for a victim of sexual harassment not to include a common law claim for intentional infliction of emotional distress and instead rely on proving damages for emotional distress as a part of the sexual harassment claim.

In addition to creating jury instructions, the Judicial Council of California has also created official verdict forms for use in California courts. While they are not mandatory, these forms are often used in sexual harassment cases. There is a different verdict form for each cause of action claimed in any given case. Included on the verdict form, there is a list of possible damages suffered by the plaintiff. The jury is instructed to fill out the dollar amount they believe the plaintiff suffered as a result of each item of damages on the list. Included on the list of items of damages on these verdict forms for sexual harassment cases are past and future noneconomic loss, including physical pain or mental suffering. It is under the category of pain and suffering that the jury can award the plaintiff damages for emotional distress as the result of the sexual harassment claim.

B. Emotional Distress and Workers’ Compensation Law

Although a cause of action for infliction of emotion distress arising from sexual harassment can generally be added to a victim’s complaint, an employee that has suffered from emotional distress at work cannot always bring a civil lawsuit. An employee suffering from emotional distress generally will need to bring a workers’ compensation claim instead of a civil lawsuit. In workers’ compensation law, the exclusive remedy provisions state that a workers’ compensation claim is the exclusive remedy available for injuries that occur at the workplace. This includes both physical and psychological injuries. The court in Accardi v. Superior Court explained:
Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers’ compensation law.

However, the court in Accardi recognized that a civil lawsuit for emotional distress which is caused by discrimination or sexual harassment in the workplace is not barred by the workers’ compensation exclusive remedy provision.

In Accardi, the plaintiff suffered emotional distress because of a pattern of discrimination and brought a civil lawsuit for both sexual harassment and an additional cause of action for infliction of emotional distress. The Accardi court stated that the plaintiff’s cause of action for emotional distress was “founded upon actions that are outside the normal part of the employment environment and violate this state’s policy against sex discrimination.” As such, the plaintiff’s claim for emotional distress was not barred by the exclusive remedy provisions of workers’ compensation laws.

III. Negligent Infliction of Emotional Distress

To establish a claim of negligent infliction of emotional distress, the victim must prove the defendant was negligent, that the victim suffered serious emotional distress, and that the defendant’s negligence was a substantial factor in causing the serious emotional distress.

Judicial Council of California Jury Instruction, CACI 1620 states that emotional distress includes:
suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.

A. Emotional Distress and Discovery

Victims of sexual harassment claim general damages; that is they make a claim for damages based on the pain and suffering that is generally associated with the injury. In addition, many sexual harassment victims claim emotional distress. Claims for emotional distress are supported by particular psychiatric symptoms that the victim suffered as a result of sexual harassment.

When psychiatric symptoms come into play that are beyond the normal pain and suffering associated with the incident and the victim makes a claim for emotional distress, the attorneys for the employer in a sexual harassment lawsuit will make a demand for production of the mental health care records of the victim and may request that the victim undergo a mental examination by an independent psychiatric health care practitioner.

Although a plaintiff in a sexual harassment case may be able to say that his or her general mental suffering is limited to that which is usually associated with the harassment he or she suffered, it is not always advisable for a plaintiff to limit his or her damages in this way in a sexual harassment lawsuit. The core of the claim of damages in a sexual harassment lawsuit for the plaintiff is usually the emotional distress that the plaintiff suffered as a result of being subject to harassment. It is true that the downside of making such a claim is that the victim’s mental health care records come into play as an item of discovery and the defendant employer may request an independent mental examination. However, a plaintiff’s attorney can seek stipulations or in the alternative make motions to the court for protective orders. A typical protective order will limit the exposure of the plaintiff’s mental health care records and mental examination to legitimate uses within the particular lawsuit only.

IV. Assault and Battery

Battery is intentional conduct which results in a harmful or offensive contact with another person. Assault occurs when someone causes you to think that they are about to commit battery against you.

If you are subjected to unwanted touching which is harmful or offensive, then you may have a claim of battery against your harasser. If you are afraid that this kind of unwelcome contact is going to immediately occur, then you may have an assault claim.

For example, if a supervisor intentionally fondles a female employee’s breast as a condition of keeping her job, then on top of having a claim for sexual harassment, the employee may also sue for battery.

V. Conclusion

A sexual harassment victim should discuss the additional common law torts that an attorney might bring as a practical matter to accompany a sexual harassment claim. Victims of sexual harassment should particularly talk to their attorneys about the possible exposure of their mental health care records in relation to claims for psychological damages as a result of sexual harassment. Steps can be taken to obtain protective orders that will minimize who will see the psychological records of the victim.

CHAPTER EIGHT. SO I HAVE A CASE, WHAT NOW?

I. Introduction

For sexual harassment and discrimination claims, before an employee can bring a lawsuit for damages, an employee must first exhaust administrative remedies by filing a claim with the California DFEH or the federal EEOC. The filing of the administrative claim is required by the statutes, FEHA and Title VII, as a necessary step before one can bring a lawsuit. The complaint to the California DFEH or to the federal EEOC must contain sufficient facts to support the eventual claims in the lawsuit for either harassment, discrimination, or retaliation in order for the claim in their lawsuit to survive legal scrutiny.

Under California FEHA, a complaint must be brought to the DFEH within one year from the date of the last incident of harassment or discrimination. Under Title VII, the victim has 180 days from the incident, but that period is extended to 300 days if the victim also institutes a complaint with the DFEH.

This chapter discusses the statutes of limitations and the manner in which the courts deal with continuing violations, such as where the incidents of sexual harassment occur over periods of years.

Many employers are now requiring employees to sign mandatory arbitration agreements, which can be enforceable for arbitration of sexual harassment claims if the employer follows all of the requirements for an arbitration agreement.

II. Consulting an Attorney

If after reading the material in the previous chapters you believe that you have a valid sexual harassment or discrimination claim, or you need clarification on whether your claim is viable, an appropriate next step is to consult an attorney who specializes in sexual harassment and discrimination.

It is best to get an attorney involved in your case as early as possible. Attorneys will often make a demand for settlement before the victim files an administrative complaint with the DFEH or EEOC. An attorney can help you prepare to file a complaint with the DFEH or EEOC to make sure that all of your legal claims are included. A sexual harassment attorney knows the process and can help you in this unfamiliar legal territory to protect your rights and choose the best strategy with which to move forward.

After attaining a right to sue letter from the EEOC or the DFEH, your attorney can then file a complaint with the appropriate court and can work on negotiating with the other side while preparing your case for litigation. An attorney will be able to advise you and come up with an effective plan of attack, depending on the unique facts of your case.

A. Administrative Hearings as a Possible Alternative to Litigation in Civil Court

After an interview with the complainant, the DFEH drafts a complaint that the complainant approves by signing. The complaint is then served to the employer and/or harassers. After the filing of any complaint alleging facts sufficient to constitute a FEHA violation, the DFEH is obligated to initiate an investigation. However, due to practical restraints of time and resources, the DFEH is generally not able to do a thorough investigation.

The DFEH will close the case if the investigation does not show a violation of the law. If the DFEH finds facts sufficient for the complainant to proceed with a lawsuit, the DFEH will generally provide the complainant with a right to sue letter for a private lawsuit and then close its case. However, the DFEH and the EEOC occasionally, but not often, prosecute cases on behalf of victims in public administrative hearings.

The DFEH may, in its discretion, litigate a harassment case in a public administrative hearing before the Fair Employment and Housing Commission. In this process, the DFEH issues what is known as a written accusation. The respondent is required to answer the charges in the accusation at a hearing. If the victim claims emotional distress or administrative fines as damages, the responding employer and/or harasser may choose to have the case moved to a California Superior Court. Even if the respondent requests that the case be moved to civil court, the DFEH will still prosecute the case for the victim.

The DFEH advises that the advantages to litigating an employment discrimination case in Superior Court as opposed to relying on an administrative hearing are as follows:

DFEH’s authority to award damages for emotional distress and administrative fines is limited to a combination of $150,000 per Respondent.
The DFEH has no authority to award punitive damages.
Administrative fines are payable to the State General Fund, not the individual victim.

The DFEH also advises that the potential benefit of relying on an administrative hearing instead of suing in court is that the process before the Fair Employment and Housing Commission may be faster and less expensive because law and motion practice and discovery is limited.

III. Immediate Next Steps

A. Administrative Agency Complaint Requirements

FEHA, at Government Code Section 12960, sets forth the following statement explaining the information to be included in the complaint to the DFEH:

Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.

1. Exhaustion of Administrative Remedies

Before bringing a lawsuit for sexual harassment, discrimination, or retaliation, a victim must first exhaust the administrative process. To bring a lawsuit in California Superior Court, victims must exhaust the administrative remedies with the DFEH. To bring a lawsuit in federal court, victims must exhaust the administrative remedies with the EEOC.

The California Court of Appeal for the Sixth District explained:
Under California law, “an employee must exhaust the … administrative remedy” provided by [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) … and obtaining the DFEH’s notice of right to sue … “before bringing suit on a cause of action under the act or seeking the relief provided therein …” To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts…. We have recognized, in the context of [FEHA], that “the failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment….

CASES IN POINT: Sufficient Facts in Complaint

In Garcia v. Los Banos Unified School District, the victim’s DFEH claim involved sexual harassment, failure to remedy harassment, and retaliation. The victim’s complaint included allegations not expressly stated in the DFEH claim, but the victim was found to have exhausted her administrative remedies regarding her claims because “the allegations in the complaint relate to matters that are either well within the scope of the DFEH’s actual investigation or an investigation that could have reasonably been expected to grow out of the charge of discrimination.”

In Martin v. Lockheed Missiles & Space Co., the plaintiff, Noreen Martin, filed an administrative charge of age discrimination against defendant employer Lockheed with the EEOC. The EEOC then referred the charge to the DFEH and the DFEH gave Noreen a right to sue letter. Ten months later, Noreen filed an amended administrative charge with the EEOC, adding theories of sexual discrimination, sexual harassment, and retaliation. The EEOC in turn gave Noreen a right to sue letter. Noreen did not amend her administrative charge with the DFEH, and so the only claim before the DFEH was one of age discrimination. Noreen filed a lawsuit in California for state claims under FEHA.

The court in Martin said that if Noreen had wished to avail herself of state judicial remedies for her additional claims, it was essential that she undertake by reasonable means to make the additional claims known to the DFEH. In the court’s view she did not do so, and therefore the court found that she did not exhaust her state administrative remedies.

CASE IN POINT: Sufficiency of Filing For a Charge

In Federal Express Corporation v. Holowecki, the plaintiffs in an age discrimination case filed an EEOC intake questionnaire and attached a signed affidavit describing in more detail the alleged discrimination, including a request that the EEOC take action to stop the discrimination. The EEOC did not treat these documents as a charge, and therefore the defendant employer was not made aware of the complaint until the lawsuit.

Under Title VII, a plaintiff must file a charge with the EEOC at least 60 days before filing a lawsuit. Title VII does not give a definition for a “charge” and therefore the United States Supreme Court had to decide whether the papers that the plaintiffs filed with the EEOC were sufficient to constitute a charge and allow them to sue in federal court. The United States Supreme Court found that in this case, the plaintiffs’ papers were sufficient to constitute a “charge,” and that the fact that the EEOC did not act on the papers is “unfortunate”, but nevertheless does not take away the plaintiffs’ rights to bring a lawsuit in federal court against the defendant employer.

B. Right to Sue Letter Required

As a prerequisite for a lawsuit for sexual harassment, a potential plaintiff is required to get a right to sue letter from either the DFEH or the EEOC.

Complaints filed with the DFEH are also filed with the EEOC if the matter falls within the EEOC’s jurisdiction. As a substantially equivalent agency, the EEOC usually accepts the DFEH’s findings.

C. CAUTION AHEAD: Statute of Limitations

If an administrative claim to the DFEH or the EEOC is not filed within the time period provided by the applicable statute of limitations, then the case is subject to being forever barred by the courts. If a sexual harassment victim does not file an administrative complaint within the required amount of time, then that victim will not be able to move forward with a lawsuit.

Complaints must be filed with the DFEH within ONE YEAR from the date of the last incident of sexual harassment, which period may be extended up to 90 days if the alleged victim first obtained knowledge of the facts of the harassment after the expiration of the one year period from the date of the occurrence.

Pursuant to Title VII, a victim of sexual harassment generally has 180 DAYS from the incident of harassment to file a charge with the EEOC, but this statute of limitations is extended to 300 days if the victim institutes proceedings with the DFEH or any other state or local agency that has the authority to grant or seek relief from unlawful employment practices.

After a claimant files an administrative complaint and after the claimant gets a right to sue letter, then the claimant must file a private civil lawsuit within the time specified in the right to sue letter, which is within one year of the date of a right to sue letter from the DFEH.

1. Continuing Violations Doctrine

If discrimination or harassment has taken place over a long period of time, a victim is able to sue for the entire course of the discrimination or harassment if the DFEH charge properly states a “continuing violation” and the charge is filed within the applicable statute of limitations period from the last incident of discrimination or harassment.

In Regents of University of California v. Superior Court, the court found that the plaintiff must present evidence on summary judgment that there was an incident of discrimination which occurred within the statute of limitation period.

CASE IN POINT: Continuing Violations Doctrine Applied Where Victim Alleged 11-Year Pattern of Sexual Harassment

In Accardi v. Superior Court, the plaintiff sued the defendant for 11 years of sexual harassment, which continued into the one year prior to her filing a charge with the DFEH. The Accardi court applied the continuing violations doctrine to allow the plaintiff to sue for damages for all 11 years worth of violations since the last incident occurred within the one year statute of limitations period.

In Accardi, the harasser started rumors about the plaintiff and her sexual behavior, gave her unfavorable work assignments and unfavorable work shifts, made complaints about her performance which were unfounded, excluded her from group activities, and told her that she had to deal with the “double standards” which existed for male and female police officers. There were also repeated condescending remarks about women in general made at the workplace and unwanted sexual advances made to the plaintiff.

Toward the end of the 11 year period of harassment, the demeaning conduct directed at the plaintiff was arguably nonsexual. However, the Accardi court concluded that the conduct that occurred during the final stages of plaintiff’s employment was part of a continuing course of sexual discrimination in a police department which did not want women in “a man’s job.” The court ruled that because this conduct was part of the harassment and it occurred within a year of the plaintiff’s filing a complaint, the statute of limitations was satisfied through the use of the continuing violations doctrine.

CASE IN POINT: Continuing Violations Doctrine and
Retaliation

In Yanowitz v. L’Oreal USA, Inc., the California Supreme Court found that a plaintiff may invoke the continuing violations doctrine to rely upon allegedly retaliatory acts that occurred outside the limitations period when such acts are related to acts that occur within the limitations period prescribed by the FEHA. The court explains:

Here, the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation, and as we have concluded above, a series of separate retaliatory acts collectively may constitute an “adverse employment action” even if some or all of the acts might not be individually actionable…. If, however, we were to foreclose application of the continuing violation doctrine as a matter of law in retaliation cases, the statute of limitations would start running upon the happening of the first act of retaliation, even if that act would not be actionable standing alone. A rule that would force employees to bring actions for “discrete acts” of retaliation that have not yet become ripe for adjudication, and that the employee may not yet recognize as part of a pattern of retaliation, is fundamentally incompatible with the twin policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits….Accordingly, foreclosing the application of the continuing violation doctrine in a case such as this one, where the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation would undermine the fundamental purpose of the FEHA.

IV. Contractual Arbitration

Contractual arbitration has become increasingly popular for employers over the years. Contractual arbitration occurs when two parties agree that if they have a dispute in the future, they will resolve the dispute through arbitration instead of through the court system.

An arbitration is a hearing in which the parties bring their dispute to an unbiased and neutral third person, who acts as a judge and makes a ruling. Both parties have an opportunity to be heard at the arbitration. In a contractual arbitration, the parties generally have agreed in advance to be bound by the award that the arbitrator issues after the hearing.

Many employers require new employees to sign arbitration agreements upon being hired. If you signed an employment agreement with an arbitration clause, then you may be forced to go to contractual arbitration instead of filing a lawsuit. However, there are rules which must be followed in order for you to be bound to arbitration, and an attorney can help you to assess your rights after reviewing the arbitration clause.

CASE IN POINT: Mandatory Arbitration Agreement Enforceable Only if Fairness Requirements Met

In Armendariz v. Foundation Health Psychcare Services, Inc., the California Supreme Court approved the use of mandatory arbitration agreements by California employers, so long as certain requirements are met. According to the California Supreme Court, a mandatory arbitration agreement will not be enforceable on an employee unless the agreement:
(1) provides for neutral arbitrators,
(2) provides for more than minimal discovery,
(3) requires a written reward,
(4) provides for all of the types of relief that would otherwise be available in court, and
(5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.
Because the arbitration at issue in the case did not meet these requirements, it was held to be unenforceable.

CASE IN POINT: Consent to Arbitration Agreement Required

In 2007, in Mitri v. Arnel Management Co., two former employees sued their former employer for sexual discrimination and harassment. In response to the lawsuit, the defendant company filed a motion with the court asking the court to force the plaintiffs to bring their claim through arbitration instead of with the court. The company argued that the plaintiffs had each signed a binding arbitration agreement. However, the company did not have copies of any such agreement or any proof that the plaintiffs had signed an arbitration agreement. The company argued that the plaintiffs agreed to arbitrate by continuing to work for the company after receiving the employee handbook, which contained an arbitration provision. The Court found that the arbitration clause in the handbook only worked to put employees on notice that they would be asked to sign a separate arbitration agreement.

California contract law applies to determine whether the parties formed a valid agreement to arbitrate. The consent of the parties to a contract must be communicated to each other to be binding. The plaintiffs in this case never consented to arbitration, and so they were not bound to arbitration.

VI. Conclusion

In order to bring a lawsuit for sexual harassment or discrimination, an employee must first get a right to sue letter from the DFEH or the EEOC. The process for getting a right to sue letter is to file a complaint with the DFEH or EEOC. In California, attorneys generally prefer that the victim file the complaint with the DFEH.

Because it is important that the complaint to the DFEH or the EEOC contains facts sufficient to support the potential claims for a lawsuit, it is advisable for a victim of sexual harassment to consult an attorney early in the process for advice about making the administrative claim.

The DFEH and the EEOC typically give appointment dates to employees who call them with claims. The appointments can often be many weeks away, so it is advisable for a claimant to leave sufficient lead time in order to avoid a statute of limitation problem, such as the FEHA rule that one must bring an administrative complaint within one year of the incident in order to get a right to sue letter.

Employees who are considering making claims should look at their employment agreements to see if they have signed a mandatory arbitration agreement with the employer. If there is an agreement for arbitration, the employee should bring that agreement to the attention of the attorney that the employee consults.