Emotional Distress Claims in Employment Lawsuits: The IIED Defense

Almost every wrongful termination complaint in California includes a claim for intentional infliction of emotional distress. It’s often the weakest claim in the case. The employee must prove truly outrageous conduct and severe distress, and ordinary personnel decisions don’t qualify even when the employee says they were made for a bad reason. Getting the claim out early narrows the case, can remove individually named managers, and takes some of the emotion out of trial.

What does an employee have to prove?

Three things. The California Supreme Court listed them in Hughes v. Pair (2009) 46 Cal.4th 1035: the claim requires “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress,” and a causal link between the conduct and the distress.

Each element is a real hurdle. Most IIED claims in employment cases fail on the first two.

How outrageous does the conduct have to be?

Far beyond rude or unfair. Hughes said conduct is outrageous when it is “so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community,’” and that liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”

That standard filters out a lot of what employees describe in complaints: a harsh performance review, a supervisor who yelled, being left off meetings, a demotion, or a termination delivered badly. Those facts may matter to other claims, but they rarely describe conduct a court will call outrageous as a matter of law.

The claim is stronger when the facts involve serious harassment, threats, or physical intimidation. Hughes noted that a properly pleaded sexual harassment claim can establish the outrageous-conduct element. Candor matters here: where the underlying harassment allegations are severe, an IIED claim is unlikely to fall out early, and the defense has to meet the facts.

Can a termination or demotion support an IIED claim?

Usually not by itself. The Court of Appeal addressed this in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55: “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.”

The same court went further. “A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged,” Janken held. If a decision was discriminatory, the employee’s remedy is a discrimination claim against the employer, not an emotional distress claim against the managers who made the call.

That point matters for individual defendants. Employees often name a supervisor personally to add pressure or to defeat federal diversity jurisdiction. A FEHA discrimination claim generally can’t be brought against an individual manager, so an IIED count is sometimes the only claim keeping that person in the case. Janken is the usual answer.

How severe does the distress have to be?

Severe in a real sense. Hughes said the court “has set a high bar,” and defined severe emotional distress as “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” In that case, discomfort, worry, anxiety, an upset stomach, concern, and agitation weren’t enough.

This is where discovery helps the employer. Medical and therapy records, the employee’s own deposition testimony, and the employee’s activities after termination often show distress that is real but ordinary. If the employee claims ongoing, severe distress, the employer may be entitled to a defense mental examination, covered in the firm’s post on mental examinations in emotional distress cases.

Does workers’ compensation bar the claim?

Sometimes, and it’s a separate defense. When the distress comes from conduct that is a normal part of the employment relationship, California courts have often held that workers’ compensation is the exclusive remedy. The rule has exceptions, including for conduct that violates FEHA or fundamental public policy, and it’s addressed in the firm’s post on workers’ compensation retaliation and exclusivity. In practice, the outrageous-conduct and severe-distress elements usually do more work than exclusivity.

When should an employer challenge the claim?

As early as the record allows. If the complaint describes nothing but personnel actions, a demurrer may end the IIED claim at the pleading stage. If the complaint pleads enough to survive, a summary judgment motion after the employee’s deposition is the usual vehicle, since that testimony tends to show what the employee actually experienced.

Dropping the IIED claim changes the case. It can remove individual defendants, narrow the emotional distress evidence, and shorten the jury instructions. The employee may still seek emotional distress damages on a FEHA or wrongful termination claim, so the distress evidence doesn’t disappear, but it’s no longer a freestanding claim built on the idea that the company behaved outrageously.

What should an employer do when an IIED claim arrives?

The early steps are the same as in any termination lawsuit, with attention to the managers named personally.

1. Put a litigation hold on the personnel file, the termination paperwork, and every relevant manager’s emails, texts, and chat messages.
2. Calendar the response deadline, check for an arbitration agreement, and give notice to the EPLI carrier, including for any individually named managers.
3. Identify every manager named in the complaint and keep each one from contacting the employee about the case.
4. Pull the documents that show the business reasons for each decision, such as performance reviews, warnings, and the investigation file.
5. Talk to a lawyer about whether a demurrer or an early summary judgment motion on the IIED claim makes sense.

Early motion practice is part of the firm’s work in employer-side employment defense.

IIED questions employers ask

Can a manager be personally liable for emotional distress?

Yes, in principle, because IIED is a tort that anyone can commit. That’s why employees name managers on this claim. In practice, Janken holds that ordinary personnel decisions can’t support the claim, even when the employee says they were motivated by bias. A manager named only for firing, disciplining, or demoting the employee usually has a strong argument for dismissal. The analysis is different for a manager accused of serious harassment.

Does the employer have to defend a named manager?

Often, yes. Labor Code section 2802 generally requires an employer to indemnify employees for losses incurred in the direct consequence of their duties, and many EPLI policies cover named managers as insureds. The details depend on the facts and the policy, so the indemnity question and the carrier notice should be handled at the start of the case, not after a manager hires separate counsel.

If the IIED claim is dismissed, does the employee lose emotional distress damages?

Not necessarily. Emotional distress damages are available on several other employment claims, including FEHA discrimination and retaliation and wrongful termination in violation of public policy. Dismissing the IIED claim removes the outrageous-conduct theory and often the individual defendants, but the employee can still ask the jury to compensate distress caused by an unlawful termination. The amount usually depends on the evidence of how severe and lasting the distress was.

If your company is facing an emotional distress claim

If your company or one of its managers has been sued for intentional infliction of emotional distress after a termination, the complaint’s description of what actually happened usually decides whether the claim can be dismissed early. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving emotional distress after a termination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The elements and the severe-distress standard are from Hughes v. Pair (2009) 46 Cal.4th 1035. The personnel-management rule is from Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.