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An Ohio appellate court recently issued a
decision allowing a gay employee to proceed on his claim against his
employer for infliction of emotional distress. In Tenney v. General
Electric Co.,[1] a sharply divided three-judge panel of the Ohio Court
of Appeals ruled that the plaintiff employee’s allegations against his
employer and the company nurse, if believed by a jury, would be
sufficient to subject the employer to damages.
The sole claim, on appeal, related to the
employee’s claim for intentional or reckless infliction of emotional
distress. Under Ohio law, as recognized by the court in Tenney, “one who
by extreme and outrageous conduct intentionally or recklessly causes
serious emotional distress to another is subject to liability for such
emotional distress.” The Tenney court also noted the following
requirements under Ohio law for establishing a claim for intentional or
reckless infliction of emotional distress:
- A plaintiff is required to prove
that (1) the defendant intended to cause the plaintiff’s serious
emotional distress, (2) the defendant’s conduct was extreme and
outrageous and (3) the defendant’s conduct was the proximate cause
of the plaintiff’s serious emotional distress.
- Liability on a claim for
intentional or reckless infliction of emotional distress may exist
“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.”
- Such liability does not extend to
“mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities.”
The plaintiff in Tenney was an employee of
General Electric since 1973 and experienced harassment on account of his
sexual orientation throughout the course of his employment. In his
lawsuit, Tenney contended that he was subject to numerous types of
extreme and outrageous conduct. Among these were a physical attack where
he was hit with glass in his chest and groin area causing injury; name
calling, including a number of obscenities; anti-gay graffiti that
remained for months on bathroom walls; ridicule by various employees
including pig noises; and simulations of gay sex.
In addition, the plaintiff alleged that a
General Electric plant nurse made derogatory comments and physically
assaulted him. Specifically, the plaintiff alleged that the nurse
requested to give him a “motherly hug,” but gave him a hug that was far
from “motherly.” The plaintiff alleged the hug involved groping and
other sexually related activities. Although the plaintiff reported all
of the above issues to General Electric, little was done. With respect
to the nurse’s hug, General Electric concluded that neither the labor
agreement nor the company’s policy on sexual harassment had been
violated.
The Ohio Court of Appeals concluded that
the nurse’s hug involved the type of extreme and outrageous conduct
sufficient for a claim of infliction of emotional distress to proceed to
the jury. Further, although the Tenney court noted that the obscenities,
graffiti and other encounters, as separate and individual incidents, did
not rise to the level of “extreme and outrageous conduct” that would
support a claim for intentional or reckless infliction of emotional
distress, the court held that the incidents, when considered in their
totality, reflected a pattern of inaction by General Electric with
respect to wrongs committed against the plaintiff.
The Tenney court specifically noted that
the evidence suggested General Electric’s management knew of as many as
five different employees who had victimized the plaintiff on a total of
eight separate occasions, and that management trivialized these reports
and was unconcerned with the threat these employees posed to the
plaintiff’s safety. The court also noted that nothing in the record
suggested that General Electric’s management ever fired, demoted,
transferred or meaningfully disciplined those employees in response to
these reports.
Consequently, the Ohio Court of Appeals
held that the trial court erred in granting summary judgment in favor of
the employer, and permitted the plaintiff’s claim for infliction of
emotional distress to proceed to the jury.
Historically, most gay employees who have
tried to assert emotional distress claims have fallen short under
standards similar to those articulated by the Ohio Court of Appeals. The
Tenney decision, however, indicates this prevailing trend may be
changing.
To limit exposure to claims, employers
should take care to promptly address the type of actions complained of
by the plaintiff in Tenney (including physical harassment, graffiti,
name calling, insults and other mocking or derogatory behavior) when
reported by employees or noticed by management.
If you have any questions or need
assistance implementing the suggestions, please contact
Susie Gibbons at
sgibbons@poynerspruill.com or 919-783-6400.
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[1] Tenney v. General Elec. Co., 2007-Ohio-3367, 2007 Ohio App. LEXIS
3114 (Ohio Ct. App. 2007). All quotes in this alert come from the Tenney
decision. Internal citations, however, have been omitted. |
