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In the case of Garces v. R&K Spero Co., LLC,  a former employee sued her employer for intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful discharge, sexual harassment, religious discrimination and invasion of privacy. The employer denied the allegations, and moved to strike several of those counts for failure to state a cause of action.

Establishing a Claim For Intentional Infliction of Emotional Distress

In order for the employee to prevail in a case for liability under intentional infliction of emotional distress, four elements must be established. It must be shown: (1) that the employer intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the employer’s conduct was the cause of the former employee’s distress; and (4) that the emotional distress sustained by the employee was severe.  Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Establishing Sexual Harassment Under Title VII

For sexual harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Case law has established that the lack of access to a bathroom may be used as a basis for the finding of a hostile work environment for the purposes of a sex discrimination or retaliation claim only when it is accompanied by additional allegations of sexually discriminatory acts, such as sexual advances, name calling based on gender or unwanted touching.

Applying the Law

A store supervisor and manager spoke "badly" about the employee to other employees, mocked her because she lacked fluency in English and denied her use of the bathroom on several occasions, on one occasion when the employee explained that she was undergoing her menstrual cycle. Shortly after that incident, the employee was removed from the work schedule. She initially did not receive any explanation. She was subsequently informed that she was terminated because her religious obligations were in conflict with the employer's needs. The court held that requiring the employee to beg for a bathroom key to the point where she bled through her clothing could lead an average member of the community to exclaim, "Outrageous." Making her wait over 48 hours before telling her that she was fired" was sufficiently wrongful and therefore, satisfied the pleading requirements for negligent infliction of emotional distress. However, Connecticut law made clear, without allegations of any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature, the employer could not have committed sexual harassment, as a matter of law.

The Court's Decision

The employer’s motion to strike was denied as to the counts for intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy. It was accepted as to the count asserting sexual harassment. “ As the plain language of [Connecticut’s law on Sexual Harassment] makes clear, without allegations of ‘any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature,’ the [employer could not] have committed sexual harassment, as a matter of law. The court notes that the [employee’s] complaint is vacant of any such allegations” explained the court. “Thus, [the claim of sexual harassment] of [the employee’s] complaint is legally insufficient to bring forth a cause of action for sexual harassment pursuant to this statute.”

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

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Source: Garces v. R&K Spero Co., LLC, 2009 Conn. Super. LEXIS 1507, 2009 WL 1814510 (Conn. Super. Ct. May 29, 2009)