Alabama is an “at will” employment state, which unfortunately means that employees have few rights under state law. Instead, employees must typically turn to federal laws for protection. However, a state law claim called the “tort of outrage” can sometimes support a state law-based sexual harassment lawsuit.
Generally speaking, to prevail on a tort of outrage claim, the plaintiff must show that: (1) the actor intended to inflict emotional distress or knew or should have known that such was the likely result of his or her conduct; (2) the conduct complained of was “extreme and outrageous”; and (3) the conduct caused the plaintiff to suffer severe distress.
The textbook examples of “tort of outrage” claims involve mishandling of burials and bodies. For example, it would be “extreme and outrageous” for a poorly manufactured casket to break apart, causing a body to fall out as pallbearers carried the casket. Burying a loved one in the wrong plot, failure to properly handle “odors,” and cremating a body when specifically instructed not to do so might also be viable examples.
Alabama case law has paved the way for sexual harassment claims to fall under this cause of action as well. Though the road to success on such claims is tenuous, the Alabama Supreme Court’s decision in Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala. 1989), provides an example where a sexual harassment claim in Alabama may prevail under this state law theory.
In Busby, the victims of sexual harassment included Ms. Busby and Ms. Money. The harasser was Mr. Deaton. I dislike writing the kinds of facts that often arise in the context of sexual harassment claims (except when arguing to the court), so I will simply quote the Busby court’s recitation of the evidence below:
“Evidence was presented from which a jury could reasonably find that Deaton: (1) invited Busby and Money to swim in his pool in the nude with him; (2) told Busby that his hands were cold and asked if he could put them in her pockets to keep them warm; (3) told the plaintiffs that he would “put a stick on their machines” so they could masturbate while working; (4) said that he could perform intercourse as fast as one of the machines at the plant could operate; (5) said that he wished that the plaintiffs would come to work braless and wear less clothing; (6) told one of the plaintiffs that if she had not stayed up all night having sex she could do her work properly; (7) told one employee that if she would give him 30 minutes with her that he would fill her pants in nine months for her; (8) acted as if he was going to pinch one plaintiff’s breasts with a pair of pliers and with his hands; (9) said that he should send one of the plaintiffs across the street to where a group of men were standing because she stayed sexually aroused all of the time; (10) told one of the plaintiffs that he was very tired and asked her if she would accompany him to the restroom and hold his penis while he urinated; (11) told one of the plaintiffs that her nipples were as large as another employee’s entire breasts; (12) attempted to follow one of the plaintiffs into the restroom and when she asked him where he was going, said that he was going to help her; (13) followed one of the plaintiffs one night; (14) said that a table in his office had been damaged when one of the plaintiffs and a male co-employee had sex on top of it; (15) openly stared at the plaintiffs’ sexual anatomy; (16) put his arm around the plaintiffs, grabbed their arms, and stroked their necks; and (17) made other lewd remarks and gestures to the plaintiffs.”
According to the Alabama Supreme Court, such acts could be considered sufficiently outrageous to support a state law claim under the tort of outrage, essentially a sexual harassment claim called by another name.
Thus, attorneys with clients pursuing sexual harassment claims through the EEOC and into federal court under Title VII should consider adding this claim as well. The Busby decision, though ultimately unhelpful in its holding, should be a great starting point. It should also be noted that a successful claim for sexual harassment under the tort of outrage may support an award of punitive damages depending on just how extreme and outrageous the conduct was.