November 2, 2020 No impunity for bullying totally unconnected to the employer’s interest A Latinx legal assistant worked at the law offices of a male solo practitioner. The employer created an almost unbelievably hostile and disgusting workplace environment. She sued claiming intentional infliction of emotional distress, sexual harassment by hostile work environment and constructive discharge. The jury award was upheld by the Massachusetts Appeals Court in Spagnuolo v Holzberg Mass App Ct (2020) OUTRAGEOUS FACTS The jury credited evidence that the attorney made comments at the office and in the course of employment. That evidence included, calling the employee stupid, a moron, shouting and screaming in her face. The jury could have found he called her a crazy bitch, slut, and whore. There was a jar in the office for the lawyer to put in money each time he called her stupid. The employer said men were superior to women and required that the employee clean up after the employer’s lunch because that was women’s work. When asked to stop staring at her breasts, he said he couldn’t. The employee was of Hispanic heritage; the employer called such people spics. He said her brown eyes were dirty while his blue ones were superior. The employee was assigned to pick up condoms and lubricant as work responsibilities. In the office, the employer would describe his sexual activities. He told of sex on trips to the Dominican Republic and the Philippines. When the employee asked him to stop, he said she had to listen because he paid her. The employee’s husband came to the office and argued with his cell phone filming, even though the employer told him to turn it off. The employer went into his office, shut the door and called the police. The employer brought claims against the employees’ husband for assault, violation of the wiretapping law. ISSUE Were the employee’s claims against her employer barred by the Workers’ Compensation statute? HOLDING Not here. Some claims for intentional infliction of emotional distress can be brought against employers. REASONS The Worker’s Compensation bar prohibits only claims by the employee against the employer based on “negligence, recklessness, gross negligence and willful and wanton misconduct”. An exception was made for actions against fellow employees that are intentional and that in no way further the employer’s interest. There is no right to commit such acts with impunity. The wrongdoer’s motivation must be totally unconnected to the employer’s interest for such a suit against the employer to survive. Sexual and racial harassment does not further the business interests of the employer. As for sexual harassment, there is a law specifically permitting such suits despite the bar that would otherwise apply due to workers’ compensation. ISSUE 2 – Does the law allowing suits against employers for sexual harassment provide the only remedy – blocking a right to recover also for intentional infliction of emotional distress? HOLDING 2 On these facts, the conduct outside sexual harassment that was separately actionable under the theory of intentional infliction of emotional distress. The risk of duplicate recovery was addressed by special wording on the verdict slip asking the jury to identify amounts awarded for each type of claim separately, and they did. Jurors indicated the money awarded for “both” was zero.