DEFENDING FLORIDA EMPLOYERS: CLAIMS ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Some Florida employers and their owners or managers have been sued for alleged intentional infliction of emotional distress. The Supreme Court of Florida in Metro. Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985), held that to prove intentional infliction of emotional distress, the plaintiff must prove (1) the defendant engaged in intentional or reckless conduct; (2) the conduct was “outrageous”; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. In Noah v. Asor, 379 F.Supp.3d 1284 (S.D. Fla. 2019), the United States District Court for the Southern District of Florida explained that what constitutes “outrageous” conduct is a question of law. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, including claims asserting employment discrimination and retaliation as well as claims for overtime wages and other related claims. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

The Florida Supreme Court in its Metro. Life Ins. Co. decision adopted this explanation of the meaning of outrageous conduct: “Liability has ben found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim, ‘Outrageous!'” The Restatement (second) of Torts, § 46, comment d, adds the following: “The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”

Although there is no exhaustive or concrete list of what qualifies as outrageous conduct, Florida and federal case law has clarified that proof of this tort subject to a high bar and, in the words of the Noah decision, “only in ‘extremely rare circumstances.'” Florida and federal courts generally hold that there must be relentless physical as well as verbal harassment to prove outrageous conduct. For example, Florida’s First District Court of Appeal in Johnson v. Thigpen, 788 So.2d 410 (Fla. 1st DCA 2001), affirmed a finding of “outrageousness” where the employer repeatedly engaged in “offensive, unwelcomed physical contact” with his employee at the workplace by touching her breasts, running a pencil up her thigh, and forcibly placing her hand on the crotch of the defendant-employer’s pants. In Vernon v. Med. Mgmt. Assocs. of Margate, Inc., 912 F.Supp. 1549 (S.D. Fla. 1996), a federal district court Judge found there was “outrageousness” where, at work, the supervisor-defendant repeatedly touched the employee-plaintiff’s buttocks, breasts, and belly button, squeezed her nipples, hugged and tickled her, and repeatedly made lewd and vulgar sexual remarks. In one extreme case, Stockett v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992), the court found outrageous conduct where the defendant, a majority shareholder of the plaintiff’s employer, sexually harassed the plaintiff by “groping and kissing” her, “repeated[ly] and offensive[ly] touching…the most private parts of Plaintiff’s body,” “pinning Plaintiff against the wall and refusing to allow her to escape,” and other “repeated verbal licentiousness.”

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.