Racial Slurs as Actionable Intentional Infliction of Emotional Distress

From Allen v. Noble, decided last week by Judge Latonia Williams (Conn. Super. Ct. New Haven), plaintiff’s factual allegations (for Noble’s side of the story, as to the now-dropped criminal charges against her apparently based on the same incident, see this N.Y. Post op-ed—she denies that she used slurs, and claims that surveillance video footage shows “[n]o confrontation, not even any interaction, with the accuser”):

[P]laintiff alleges the following facts. The plaintiff is an American citizen of African descent, who, during the times alleged in the complaint, was employed as a parking lot attendant for Pro-Park Mobility. The defendant Noble, during the times alleged in the complaint, was the executive director, employee, and agent for service of process of the defendant Buckley Institute. On or about a date prior to July 6, 2023, one or both of the defendants entered into an agreement with the plaintiff’s employer to rent parking spaces for one or more of Buckley Institute’s employees, including Noble, in the parking lot where the plaintiff works as an attendant (parking lot).

The complaint alleges that on or about July 6, 2023, while the plaintiff was at the parking lot, he informed Noble that the lot was full and he could not provide for her parking needs. The complaint alleges that the plaintiff overheard Noble state, “fucking niggers,” and that the plaintiff did not respond to her.

The complaint further alleges that on July 13, 2023, while the plaintiff was on duty within the parking lot, Noble told him she could not find a parking place in the parking lot and the plaintiff said the parking lot was full and could not accommodate her. The complaint alleges that Noble replied: “You’s niggers get jobs and don’t know how to act!,” and that the plaintiff did not respond to her.

The complaint further alleges that on or about July 27, 2023, the plaintiff observed Noble arrive at the parking lot and found that, due to the lot being full, there was no space within the parking lot to park her car. The complaint alleges that at that time, in the presence of, and within the earshot of two individuals and the plaintiff, Noble orally referred to the plaintiff as a “nigger” three times over a parking lot issue.

The complaint states that “[t]he plaintiff, by dint of … Noble’s racially odious, racially demeaning, cruel, abhorrent, and racist epithets towards … [the plaintiff] had the capacity to hold him up to public ridicule, public humiliation, and has caused him great annoyance, embarrassment, shame, degradation, and moreover, he has suffered in his reputation and has lost the good will of many persons with which he otherwise would have enjoyed by dint of … Noble’s heinous and foul misconduct she directed towards him.” …

The court allowed plaintiff’s intentional infliction of emotional distress claim to go forward:

 “In order for the plaintiff to prevail in a case for liability under … [IIED], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe.” “Liability for [IIED] requires conduct that exceeds all bounds usually tolerated by decent society …. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community…. Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon [IIED].”

“Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine…. Only where reasonable minds disagree does it become an issue for the jury.” “[I]n assessing a claim for [IIED], the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint… set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on [IIED].” …

In general, “courts have been more apt to find sufficient allegations of outrageous conduct when that conduct involves violence, the threat of violence, or racial, ethnic, sexual, or religious slurs…. Lamothe v. Russell (Conn. Super. Ct. 2009) (supervisor constantly belittled, berated, and screamed at the plaintiff, constantly mocked plaintiff by calling her fat, threw objects at or near plaintiff, and, on at least one occasion in front of others, grabbed a cigarette out of plaintiff’s mouth and/or hands, while screaming at her); Leone v. New England Communications (Conn. Super. Ct. 2002) (owners subjected plaintiff to constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff’s computer, and insulting comments on his sexual preference).” Cortazar v. Staples the Office Superstore (Conn. Super. Ct. 2012)….

With respect to the specific word at issue in this case, our Supreme Court [in State v. Lienbenguth (2020)] provides an in-depth discussion of the highly offensive and demeaning nature of the use of the word “nigger.” The court states:

Not only is the word “nigger” undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon; …; but it is probably the single most offensive word in the English language. See, e.g., Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“[The] epithet [‘nigger’] has been labeled, variously, a term that ‘sums up … all the bitter years of insult and struggle in America,’ [L. Hughes, The Big Sea: An Autobiography], ‘pure anathema to African-Americans,’ Spriggs v. Diamond Auto Glass (4th Cir. 2001), and ‘probably the most offensive word in English.’ [Random House Webster’s College Dictionary]. See generally [A. Haley, Roots: The Saga of an American Family]; [H. Lee, To Kill a Mockingbird]…. No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.”); R. Kennedy, The David C. Baum Lecture: ‘Nigger!’ as a Problem in the Law, 2001 U. Ill. L. Rev. 935 (although “[t]he American language is (and has long been) rife with terms of ethnic, racial, and national insult: kike, mick, wop, nip, gook, honkie, wetback, chink, [etc.] … ‘nigger is now probably the most offensive word in English'”); Dictionary.com, available at https://www.dictionary.com/browse/nigger?s=t (“The term nigger is now probably the most offensive word in English. Its degree of offensiveness has increased markedly in recent years, although it has been used in a derogatory manner since at least the Revolutionary War.”).

In fact, because of the racial prejudice and oppression with which it is forever inextricably linked, the word “nigger,” when used by a white person as an assertion of the racial inferiority of an African-American person, “is more than [a] mere offensive utterance …. No word … is as odious or loaded with as terrible a history.” … “[T]he term is generally regarded as virtually taboo because of the legacy of racial hatred that underlies the history of its use among whites” …. “[N]o fact is more generally known than that a white man who calls a black man a ‘nigger’ within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate. The trial court was free to judicially note this fact.”). The word being “one of insult, abuse and belittlement harking back to slavery days”; it is uniquely “expressive of racial hatred and bigotry”; and “degrading and humiliating in the extreme ….” For all these reasons, the word rightly has been characterized as “the most provocative, emotionally-charged and explosive term in the [English] language.”

In the present case, Noble allegedly referred to the plaintiff as a “nigger” multiple times, on three different days. Thus, for purposes of the motion to strike, the plaintiff has sufficiently alleged facts to support the extreme and outrageous element.

The defendants further argue that the plaintiff fails to allege facts that, if proven true, would show that the plaintiff has suffered “severe” mental distress. Here again, the court disagrees. “The distress necessary to sustain a claim of intentional infliction of emotional distress has been defined simply, but clearly, as ‘mental distress of a very serious kind.'” Count two alleges “severe” emotional distress. The severity of the distress is to be determined by the evidence of its intensity and duration in future proceedings; thus, the cases relied on by the defendants involving summary judgment do not assist the court in determining the sufficiency of the allegations…. Whether the plaintiff suffered “severe” mental distress is for a finder of fact to determine.

But the court rejected plaintiff’s other claims. As to his slander claim, it reasoned that the slur did “not assert objective fact, but only an opinion.” As to the negligent infliction of emotional distress claim, it reasoned (among other things) that that tort applied to a narrow set of cases involving risk of illness or bodily harm. It similarly rejected the claims for negligence and for “wanton and reckless conduct,” which generally require a risk of bodily harm. And it rejected an unfair competition claim, in part because it is limited to conduct within business relationships:

The supplemental objection argues that Noble’s statements occurred during conduct of trade and commerce by way of the defendant’s use of the lot while going to and from work. The plaintiff reasons that the claim is satisfied because one of Noble’s responsibilities is to show up to work for business and events, and the defendants lease the parking space from the plaintiff’s employer; thus, they are engaged in trade or commerce with the parking lot.

However, the plaintiff has failed to provide the court with any binding authority that Noble’s act of parking a car in the lot leased by Buckley Institute and/or Noble creates an action in trade or commerce by Noble. “[A]ctivities constitute trade or commerce only if the party is engaged in the business of conducting such activities.” The complaint fails to sufficiently allege that Noble was engaged in trade or commerce.