Navigating — continued from Page 66
damages because termination is a “nor- mal part” of the “employment relation- ship.” However, they fail to mention that Horn was concerned with the exclusivity of workers’ compensation laws. It had absolutely nothing to do with either com- mon law or statutory claims (Lab. Code, § 1102.5) for wrongful discharge in viola- tion of public policy. Defense counsel may also argue that
plaintiff’s employment status is “at will” and “at will” employees may be dis- charged without cause. However, a wrong- ful termination/public policy claim “aris- es not out of the terms and conditions of the employment contract [e.g., at will status], but out of a duty imposed in law on the employer to conduct its affairs in
compliance with public policy.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1208 [51 Cal.Rptr.2d 328], emphasis added.) This fact alone destroys defense counsel’s attempted reliance upon an employee’s “at will” employment status. Although “at will” employees can be discharged without cause, they cannot be discharged for any reason that violates public policy. (Tameny v. Atlantic Richfield Co., supra, 27 Cal. 3d 167 at 172-173 [164 Cal.Rptr. 839].)
The conduct is not sufficiently “outrageous” to support a claim for IIED
Defense counsel commonly espouse a narrow, cookie-cutter approach to the
incredibly broad tort of IIED. Seizing upon a few cases which happened to have involved racial slurs or epithets, they assert that cases involving employment abuses (such as retaliatory terminations) require aggravating factors, such as racial or ethnic slurs. Yet, in IIED cases, “‘[m]anifestly, the
standard for judging outrageous conduct does not provide a “bright line”. . . .’”; rather there must be a “case-by-case appraisal.” (KOVR-TV v. Superior Court (“KOVR”) (1995) 31 Cal.App.4th 1023, 1028 [37 Cal.Rptr.2d 431].) Indeed, the very cases defense counsel often cite in their racial/ethnic slurs argument under- score and proclaim that IIED claims fit no mold, are extremely fact-driven, and arise in an endless variety of circumstances when- ever reasonable persons might conclude that the conduct at issue was outrageous. Consider, for example, Agarwal v.
mediation withJeffrey Krivis
Johnson (1979) 25 Cal.3d 932 [160 Cal.Rptr. 141], disapproved on another ground [managing agent] in White v. Ultramar, Inc. (1999) 21 Cal.4th 563 [88 Cal.Rptr.2d 19], where our Supreme Court reaffirmed the three-part, disjunc- tive test used in deciding IIED cases: Behavior may be considered outra-
geous if a defendant (1) abuses a relation or position which gives him power to dam- age the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.
(25 Cal.3d at 946, citations omitted, emphasis added.) Such a test is far broader than whether
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or not hostile language or racial epithets happened to be used, although such use, itself, may constitute outrageous conduct. Our Supreme Court has recognized that a plaintiff’s status as an employee should entitle him to a greater degree of protec- tion from insult and outrage than if he were a stranger to defendants. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn 2 [86 Cal.Rptr. 88].) Under IIED case law, one hallmark of outrageous conduct is the singling-out of an
See Navigating, Page 70
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