On August 28, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant on an Illinois state-law claim for intentional infliction of emotional distress in the employment law context. Richards v. U.S. Steel, No. 16-2436 (7th Cir. 8/28/2017). The plaintiff filed a lawsuit against her employer for sexual harassment, retaliation and intentional infliction of emotional distress. The sexual harassment and retaliation claims were dismissed based on timeliness grounds prior to this appeal. The issue on appeal was whether the claim of intentional infliction of emotional distress failed as a matter of law based on preemption by the Illinois Human Rights Act (“IHRA”) and on substantive grounds. The case involved various incidents of workplace and sexual harassment. The IHRA provides that no court shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in the IHRA, which means that jurisdiction is limited to the claims enumerated in the IHRA.
Under the IHRA, civil rights violations include sex discrimination and sexual harassment. Sexual harassment is defined as any unwelcome sexual advances or requests for sexual favors, or any conduct of a sexual nature, when the conduct substantially interferes with an employee’s work performance or creates a hostile work environment. Retaliation is also illegal. A frequent question for Illinois employment lawyers is whether workplace misconduct such as a sexual assault may support a common-law tort claim under Illinois law that is not preempted by the IHRA. Its preemption provision is narrower than others in various federal statutes. The Illinois Supreme Court has stated that whether a court may exercise jurisdiction over a tort claim (in this context) depends on whether the claim is “inextricably linked” to a civil rights violation, so that the claim has no independent basis outside of the IHRA. The 7th Circuit explained that the issue is not whether the facts that support a common law claim would also support a statutory civil rights violation, but whether the elements of the tort may be established independent of any legal duties created by the IHRA. The legal standard then is simply whether the allegations state a valid common-law claim without resort to the statutory rights and obligations under the IHRA. It is the legal duties on which the claim is based, not the factual overlap between the claims, that determine preemption. A plaintiff may pursue an Illinois workplace tort claim without preemption if the claim is not dependent on the IHRA.
The 7th Circuit concluded that the plaintiff in this case could not state a valid common-law claim without reliance on rights and duties under the IHRA. Under Illinois common law, an employer may be held vicariously liable for the torts of its employees if the tort is committed within the scope of employment. Instances of workplace misconduct, however, such as those involving sexual harassment or sexual assault, are often deemed outside the scope of employment, in which case they cannot support a claim without the IHRA. The 7th Circuit agreed with the district court that the plaintiff’s intentional infliction of emotional distress claim was preempted by the IHRA. It also concluded that the intentional infliction claim failed as a matter of law due to the absence of the required element of extreme and outrageous conduct, for which there is a very high legal bar in the employment context. Courts are reluctant to conclude that workplace conduct is extreme and outrageous unless an employer severely abuses its power over an employee. Court generally will not transform into emotional distress claims typical workplace disagreements, job-related stress, personality conflicts, criticism of job performance, insults, employee discipline or employee termination. It should be noted, however, that under the IHRA, a complaining party may recover compensatory damages for emotional distress without any limitation or cap for a civil rights violation.