A November 27, 2013 opinion from the Idaho Supreme Court reinstated a former Assistant Vice Principal’s claim seeking damages for negligent infliction of emotional distress. This decision highlights that allegedly harassing workplace comments may subject employers to liability even though e the complaining employee cannot make out a traditional sexual harassment claim.
In Frogley v. Meridian Joint School Dist., 2013 opinion No. 124, the employee claimed that he had been the victim of sexual harassment based upon sexually-charged comments to and about him. Mr. Frogley claimed that the behavior continued despite making known that the behavior was offensive. The complaints came at approximately the same time his superiors began to question his work performance.
All of the claims, including sexual harassment under federal and state law, were dismissed before they were allowed to proceed to trial. The Supreme Court’s opinion does not detail the reason for the lower court’s decision in that regard and the employee chose not to appeal dismissal of the sexual harassment theories; pursuing instead his claims for retaliation and negligent infliction of emotional distress.
Recognizing that prior Court decisions have held it is not sufficiently foreseeable that verbal abuse could inflict serious emotional harm to sustain a claim for negligent infliction of emotional distress, particularly where the actor is unaware of a susceptibility or frailty at the time the conduct is committed. The Court said enough evidence existed to allow this claim to be decided by a jury given the employee’s frequent prior complaints of harassment and requests that the offensive conduct stop. What’s missing from the court’s analysis, however, is a discussion of the impact of the behavior on the employee. It is important to note that a person bringing such a claim must be also able to demonstrate physical manifestations of the emotional injury. Unfortunately prior decisions from the same court have ruled that headaches, stomachaches and sleeplessness are enough to satisfy this requirement.
On its face this decision seems to present something of an anomalous result. Unfortunately for Idaho employers, they can probably expect to see an uptick in such claims and a greater hesitancy by the trial courts to dismiss them short of trial.