For many years it has been the common practice of New York plaintiffs’ attorneys, when drafting complaints primarily asserting claims for employment discrimination under federal, state and local statutes, to “tack on” claims for intentional infliction of emotional distress (IIED) and/or negligent infliction of emotional distress (NIED). Notwithstanding the fact that these claims are very rarely successful in the employment context, counsel continue to plead such claims, presumably because they perceive these claims to give them leverage in settlement negotiations because of the uncapped damages that are available for such tort-based claims, or otherwise.
Given the long and unbroken line of authority applying New York law and rejecting such claims in the employment context, except in cases of the most extreme employer misconduct, plaintiffs’ counsel should rethink whether it is wise and appropriate to continue to include claims for IIED and NIED in common employment discrimination complaints. Such claims are not only routinely dismissed on pre-answer motions, but given the wealth of authority on the subject, the assertion of such claims now may be frivolous to the point of warranting sanctions, depending upon the facts of the individual case.
