Individuals who claim to have experienced sexual harassment typically file claims under Title VII and any state-specific acts that might apply such as the Illinois Human Rights Act (IHRA). But those aren’t the only potential legal claims an individual can level against an employer (or former employer). In some instances, the alleged conduct supporting a sexual harassment claim also can cover claims for battery or intentional infliction of emotional distress, as one pharmacy recently learned.
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Kiss of Death
Wendy Blades, who worked for J&S Professional Pharmacy for more than a decade, claimed she was sexually harassed by owner Joyce Fogleman. Blades alleged Fogleman required her (and other employees) to line up and kiss the owner on the mouth in order to receive their paychecks. Blades also claimed Fogleman spanked her as a form of discipline and sexual gratification and exposed her to nudity in the workplace.
Blades said Fogleman’s actions caused her high blood pressure, severe anxiety, and depression. In 2017, Blades required emergency medical attention because of the issues, and her doctor sent her home to rest. Four days later, she returned to work only to learn the pharmacy had terminated her allegedly because of her inability to work.
Blades filed a lawsuit against the pharmacy and Fogleman in Illinois federal court alleging sexual harassment under Title VII and the IHRA. Additionally, Blades claimed Fogleman committed a battery against her and that the pharmacy and the owner were liable for intentional infliction of emotional distress.
Prescription Pills
To establish a civil battery, Blades needed to show (1) Fogleman had the intent to cause harmful or offensive contact with her, (2) the owner actually made unauthorized physical contact with her that was harmful, (3) the employee was injured, and (4) the owner’s action caused the injury.
Additionally, to establish a claim for intentional infliction of emotional distress, Blades needed to show (1) Fogleman’s conduct was extreme and outrageous, (2) the owner intended for her behavior to cause severe emotional distress or knew there was a high probability it would do so, and (3) the conduct did in fact cause severe distress.
Spoonful of Sugar
The pharmacy and Fogleman asked the Illinois trial court to get rid of the battery and intentional infliction of emotional distress claims, arguing the IHRA didn’t allow Blades to pursue them. The Act states that “except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” The IHRA defines sexual harassment as a civil rights violation.
Based on that language, the pharmacy and Fogleman argued the IHRA preempted—or outweighed—the claims for battery and intentional infliction of emotional distress and that the court did not have the ability to consider them. Rather, they argued Blades could pursue only a sexual harassment or hostile work environment claim under the IHRA (and Title VII).
Overdose
The federal trial court rejected the pharmacy’s argument. The court explained the IHRA allows for additional claims, such as for battery or intentional infliction of emotional distress, in limited circumstances. The court said Blades could bring such claims as long as she could prove them “independent of any legal duties created by the [IHRA].”
As the court noted, “in plain language,” that meant Blades could not file battery or intentional infliction of emotional distress claims against the pharmacy and Fogleman if the only basis for them was that the parties had a duty not to violate the Act. In this case, however, Blades’ claims were based on the owner’s alleged intentional and unwanted touching—the spankings and the kissing.
According to the court, Blades had alleged the battery and intentional infliction of emotional distress claims separate and apart from any duty created by the IHRA. For those reasons, the trial court is allowing the former employee to pursue the claims against the pharmacy and Fogleman. Blades v. J&S Professional Pharmacy, Inc., 18-cv-01369 (N.D. Ill., Dec. 6, 2018).
An Ounce of Prevention
Employers may be surprised to learn they can be on the hook for civil battery and intentional infliction of emotional distress. The good news is you can avoid those ancillary claims by taking the same preventive measures you use to avoid sexual harassment claims. A good starting point is to implement a strong antiharassment policy (which includes effective reporting mechanisms) and offer regular and interactive training for supervisors.
Kelly Smith-Haley is an Attorney with Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at ksmithhaley@fslc.com.