$10,000,000 Sigh of Relief - Texas Supreme Court Reverses Intentional Infliction of Emotional Distress Claim
by Michael Fox
18 months after oral argument, the Texas Supreme Court today reversed a judgment that with interest was north of $10,000,000 when it held that where the gravamen of a complaint is sexual harassment, it is impermissible to recover for the independent tort of intentional infliction of emotional distress. Hoffman La-Roche v. Zeltwanger (Tex. 8/27/04). My earlier comments on the oral argument are here and the amicus brief authored by me (and my former colleague Laura O'Donnell) on behalf of the Texas Association of Business advocating today's result, is here [pdf].
All 8 justices of the Court who decided the case agreed with the result, although there were two concurring opinions representing the views of 3 of the justices. The majority opinion written by retiring Chief Justice Tom Phillips extended the "gap filler" analysis of its earlier opinion in Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).
Basically, the tort of intentional infliction of emotional distress is designed only for those injuries that would otherwise go unremedied. Here there was a remedy under the Texas Commission on Human Rights Act (under which Zeltwanger has already recovered almost a million dollars), thus there was no need or basis for allowing her to circumvent the statutory caps of that statute by allowing her to recover for intentional infliction of emotional distress. The Court did hold that it was perhaps possible that a plaintiff could show facts independent of the sexual harassment claim which would support an IIED claim, but Zeltwanger did not meet that burden.
Justice O'Neill, joined by Justice Smith, concurred with the result but for a different reason. In her view in "attempting to cabin what has clearly become an amorphous and overused tort, the Court has fashioned a cure that is worse than the disease." She goes on to articulate the potential effects, envisioning cases where defendants are either confessing liability of a statutory violation or even being forced to prove a violation against themselves, to avoid liability under the intentional infliction cause of action. Instead of that approach, she would have emphasized yet again the high bar for the element of "outrageous conduct." In her view, only when "behavior repeatedly becomes so forceful and intimidating that a reasonable person would feel immediately threatened or afraid," is there a sufficient basis for IIED. Although the conduct here was "vulgar and reprehensible" it would not pass that bar.
Justice Hecht also concurred. His voice of reason about the tort of IIED, has been consistent and now well proven. Here in full, absent footnotes, is his concurrence:
I join the Court's opinion because I agree that the tort of intentional infliction of emotional distress does not lie in circumstances where liability is determined by other torts or by statute since "the tort's clear purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct 'that its more established neighbors in tort doctrine would technically fence out.'" This is consistent with, and not a departure from, my more fundamental position that the tort of intentional infliction of emotional distress should not exist at all for the reasons I explained eleven years ago in Twyman v. Twyman. Experience since then has done much to prove those reasons correct, but since the Court is not yet ready to throw in the towel, I accept a restriction that seems to have been latent in the thinking that created the tort, as best I have been able to understand it. [emphasis added]
I also agree with Justice O'Neill that the facts of this case do not rise to the level set by this Court in defining the tort. Jim Webber's conduct as Joan Zeltwanger's supervisor was certainly objectionable, reprehensible, at times even disgusting, but regrettably not that unusual (hence the enactment of a statutory remedy for sexual harassment in the workplace), and not "utterly intolerable in a civilized community." The fact that the trial judge and at least three justices on the court of appeals disagreed with this view, which is supposed to be a matter of law, and that their position is in no way flawed but is simply different from mine and at least two other Justices on this Court, makes me as uncomfortable as I was in Twyman that the core standard of liability for the tort is very subjective. But given the way the Court has defined the tort, the discomfort is unavoidable.
Today's rule is not based on the exclusive or preemptive nature of another remedy but on the nature of the IIED tort itself. I think Justice O'Neill is right that applying the rule will almost certainly prove highly problematic, but that prospect strikes me as one more reason to abandon the tort altogether. Until the Court reaches the same conclusion, the problems of the tort, including those created today, are a necessary evil.
Here's for a quick throwing in of the towel.