You're Fired!

Class: Employment Law

Professor: Sharon Rabin Margalitoh

Topic: Wrongful Discharge: Tort Theories of Recovery - Intentional Infliction of Emotional Distress

The case that led most of our discussion was Agis v. Howard Johnson Co. Basically, what happened was that a manager of a HoJo restaurant couldn't figure out which waitress had stole money from the till and decided the best way to deal with the situation was to line them all up alphabetically and begin firing them one by one until the guilty party felt enough shame to come forward.  The ploy not only failed to get the money back but led to a lawsuit whereby one or more of the waitresses claimed "emotional distress" and won a good sum of money from the corporation.

If I had known having an asshole boss could get me paid I probably would have retired by now.

The idea that one should receive damages for having their feelings hurt is an obvious absurdity that I won't go into.  My real problem with this case stems from the courts inability to see the basic problems with allowing tort recovery in this situation.

The waitresses were all "at will" employees who had no contractual rights nor obligations to Howard Johnson or its restaurant. This means they could simply quit at anytime for no reason at all, as well as be fired at any time for no reason at all.  Of course there are various duly enacted laws which adjust "at will" firings to not include such motivations as race, gender, etc. But there was nothing on the books which stated anything about employers having to be nice.  

Being an "at will" employee has its ups and downs.  There is absolutely no enforceable job security, but at the same time there is no legal job requirements either.  So, if your asshole boss pulls stunts like the one in this case, you can simply tell him to jump in a lake and walk out the door with no legal repercussions.  Of course the downside is that no matter how long you've worked at a place, or how dear your job is to you, you can be handed a pink slip at any time with no questions asked.

My main problem is why a court would see these waitresses as victims of the manager's actions when they had no duty to follow his demands leading to their humiliation.  The moment he told them to line up to be fired alphabetically they all had a choice not to do so.  They simply could have said no and taken their chances or quit.  But they didn't, and chose to go ahead with the manager's exercise.

There is a doctrine of defense in tort law called assumption of risk.  Basically it states that one can't sue for damage when he voluntarily entered into a situation fully aware that there was a risk of injury.  So, if you go to a MLB game and get hit in the face by a foul ball, you get nothing. The reason being everyone knows that balls fly into the stands (this is an absurdly simple explanation that I refuse to be held to in the future).  

The defense in our case didn't go with my half baked theory however and stuck to the traditional argument that a claim of Intentional Infliction of Emotional Distress (IIED) must be coupled with actual physical harm to go forward.  This was the rule up to that point in Massachusetts.  The Massachusetts bench is a wily one and decided that this case, and its facts, were going to be the basis for a new doctrine in MA tort law which allowed suits for IIED to be independent of any physical damage to the individual.  

Allowing IIED's to go forward independently is laughable enough but basing this doctrine on the grounds of this case is hard for me to understand.  Not only do you have to argue that calling people horrible and humiliating names on the street justifies tort liability, but giving notice that you are about to inflict emotional distress and having the person submit to it voluntarily allows tort liability.   

During class I just couldn't help but wondering if the support for the plaintiffs in this case would remain if the situations were reversed.  If a group of waitresses came onto their shift and began hurling insults at their manager and then walked out just as the dinner rush started, would my classmates and the Massachusetts bench allow that manager to sue those waitresses for IIED?  I doubt it, but maybe I am being overly cynical.  

The main argument in favor of the case's outcome is that the employees are "economically dependant" on their jobs and shouldn't be put in a situation where they have to choose between being lined up and humiliated and losing their source of income.  I understand this point, but the fact remains, no matter how dependant you are on your job, you always have an option not to take your boss' bullshit anymore.  Furthermore, how can we as a society determine ones baseline protection of law according to their "economic dependence" on the job?  Does this mean that other "at will" employees who are independently wealthy but like working should get less protection?

At the very least the judges should leave it up to the legislature to straighten these sort of things out.  Employment "at will" assumes two individuals equal under the law entering into an employment relationship on their own terms and with their own free will.  Employers shouldn't have to worry that once they hire someone an economic dependency will be magically created which assumes certain obligations flowing from the employer to the dependant that were never bargained for.  Unless of course the legislature creates such an obligation by law and lets you know of such obligations before you go hiring a bunch of thieving waitresses.