The case is Turley v. ISG Lackawanna, Inc., decided on December 17. Law students know that IIED cases are hard to win because the conduct has to be so severe and outrageous that no civilized society would tolerate it. Courts are wary of these claims because "outrage" is in the eye of the beholder and, let's face it, if these cases could be easily filed, everyone would be suing everyone else for all sorts of grievances. So the burden of proof is quite high.
But not so high that plaintiff cannot prevail against the employer and a head of security, Sampsell. Samsell's behavior was outrageous. While negligence or bureaucratic lethargy will not give rise to an IIED claim, Samsell crossed the line. As Judge Sack writes:
Sampsell permitted the hate‐ridden and menacing environment to persist for more than three years. On multiple occasions, he ignored, and failed to discipline employees responsible for, harassment of the plaintiff. He blocked the efforts of local police to investigate threats against Turley. Rather than address Turleyʹs complaints, Sampsell set up a hidden camera that, whatever its intended purpose, in fact surveilled Turley while he worked. Although Sampsell was in charge of security for the plant, he did nothing when, in his presence, Turley was subjected to a vicious barrage of racial slurs. And when Turley and a witness went to Sampsellʹs office to report a particularly degrading verbal assault, they found Sampsell with the offending co‐worker, laughing; perhaps, the jury could have concluded, as though he were a co‐conspirator.
The Court of Appeals cites a few cases holding that the mere failure to properly deal with workplace harassment does not create an IIED claim. Without citation to any case law, though the Court sustains the verdict against Sampsell. So this case breaks some ground.
The employer, Lackawanna, was also properly held liable for IIED, the Court says. Since Samsell's inaction was outrageous, and as his failure fell within the scope of his employment, that outrageous non-behavior is imputed to the employer.