So far, the laws enacted in the state of Utah and the federal government only involve individuals who were terminated or harassed, or were not hired due to race, age, disability, color, religion or retaliation on an individual for making a claim of such issues in the workplace.
So the question is for a lot of people, when the issue isn’t harassment based on the above-mentioned classes what remedy is there? Unfortunately, it is a harder road for people in this type of situation. Their aren’t a lot of safeguards as federal government and state has created.
If there is discrimination based on race, age, disability, religion or retaliation an attorney can help you prepare documents and go through a investigation that will be conducted by the state and the federal government.
There is no downside to this for those individuals because usually there is little to no cost for them to file such a claim as many attorneys work on a contingency basis. If the office does make a finding of discrimination, then they can award back pay and attorney fees.
So now, if there is someone in the workplace who yells and screams and curses at you, what remedy do you have if it isn’t on a protected class? You won’t have the department of labor on your side. You still can file a lawsuit though. Your work is your life. You spend more awake hours at work than you do at home. You go through the stress and contribute to the company, so how is it fair that you can be bullied without any legal recourse.
You can. However, there is more risk involved in filing the lawsuit. If you file such a lawsuit and the court determines that it was an action that was brought in bad-faith, the judge court order that you pay the attorney fees for the other side.
However, if you are unable to pay for the other side’s attorney fees then the judge could mitigate or wipe that amount out. There are a few actions you could try to bring in a formal lawsuit. One could be Intentional Infliction of Emotional Distress. However, this is also a hard case to prove. The emotional distress usually has to be more than what the typical person should or could bear. The problem here is that since there aren’t actual laws that protect this type of behavior through actions of the legislature, this does happen a lot in the workforce.
In Schurmann v. Singleton, the Utah Court explained intentional infliction of emotional distress in the following manner: “Plaintiff is entitled to damages for intentional infliction of emotional distress where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.
This court has also said that “ ‘[i]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.’ ” Gygi v. Storch, 28 Utah 2d 399, 401, 503 P.2d 449, 450 (Utah 1972) (quoting Restatement (Second) of Torts § 46 cmt. h (1948)). Comment j of the Restatement further explains that, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it” and that “[i]t is for the court to determine whether, on the evidence severe emotional distress can be found.” Restatement (Second) of Torts § 46 cmt. j (1948).
In the case above-mentioned, the facts of the case were of a spouse that was claiming that her husband manipulated and made false promises about the marriage and when those false promises weren’t fulfilled she suffered emotional distress. The court determined that she didn’t suffer severe emotional distress. The found that a reasonable person was expected to endure that type of behavior and that there was no evidence of severe emotional distress that could be found.
So you have to show that the yelling and screaming was more severe than the typical yelling and screaming. The best way to prove this is with doctors papers of a therapist or psychologist you had to go to after specifically because of what happened. It could also be proven if you had a pre-existing condition that affects you and that pre-existing condition was exacerbated because of what occurred. If you have doctors notes to that effect that can also prove your case.
There might be other factors, such as if you had a relative that just died and the employer knew about it and treated you in such a way. That could rise to the level of extreme and outrageous behavior. It would be a dead winner case if the person used the dead relative for the harassment.
One thing you could also bring is a defamation claim. Defamation in a nutshell is basically a statement that was false about you that was communicated to a third party and you were injured by that false statement. The person that said the statement also has to know or should have known the statement was false. So if they thought that the statement was true, then that weakens the case. You also have to prove that the statement damaged your reputation.
You could make the claim that the statement affected your reputation and you career. For example, in the whole Bill Cosby issue that is arising with women making accusations about sexual misconduct, anyone can see that those allegations has damaged Bill Cosby and his reputation. So if Bill Cosby was to prove that the allegations were false, we would have a good defamation claim on his hands. However, celebrities and politicians are held to a higher standard and are expected to have thicker skin then the rest of us. So if Bill Cosby was a private person, making lots of money and the accusations affected his reputation and career, then it would be easier for him to prove.
Slander per se is an unprivileged publication that:
1. Charges any person with crime, or with having been indicted, convicted or punished for crime.
2. Imputes in him the present existence of an infectious, contagious or loathsome disease.
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.
4. Imputes to him impotence or want of chastity; or,
5. Which, by natural consequences, causes actual damage.
If any of the above is communicated, then you don’t have to prove damages. All of those above-mentioned are a given that they damage someone’s reputation. So a common one in the work place is if someone makes a false statement about your work ethic or your work performance and they said it knowing it was false, then you could have a good cause of action.
There are a few other causes of action that one may have in regards to privacy and distress depending on the case. These are harder facts to prove, but if the facts meet under the law, then it may be a case worth pursuing. Basically meaning, if you were damaged through bullying and suffered severely, then you can bring a case. In a nutshell, intentional infliction of emotional distress focuses on the insult and defamation focuses on the character. You can talk to our office for further inquiry about the possibilities of bringing such a claim.
Brian K. Jackson, LLC 