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•·S· Employer Abuse, Worker Resistance, and the Tort ofIntentional Infliction ofEmotional Distress REGINA AUSTIN THE CONVENTIONAL wisdom is that, in the workplace, abuse can be a legitimate instrument ofworker control and an appropriate form of discipline. l By "abuse" I mean treatment that is intentionally emotionally painful, offensive, or insulting.... It is generally assumed that employers and employees alike agree that some amount of such abuse is a perfectly natural, necessary, and defensible prerogative of superior rank. It assures obedience to command. Bosses do occasionally overstep the bounds of what is considered reasonable supervision, but, apart from contractually based understandings2 and statutory entitlements to protection from harassment, there are few objective standards of "civility" by which to judge a superior's treatment of a subordinate. Workers for their part are expected to respond to psychologically painful supervision with passivity, not insubordination and resistance. They must and do develop stamina and resilience. If the supervision is intolerable, they should quit and move on to anotherjob . In sum, there is little reason for workers to take undue umbrage at the treatment they receive at work. The pain, insults, and indignities they suffer at the hands of employers and supervisors should be met with acquiescence and endurance. That's life. WHO BELIEVES THIS? My experiences as a "subordinate" and as an observer of life among the "subordinates" who work where I d03 suggest that employees' attitudes toward, and actions against supervisors are frequently at odds with any concept of deference to authority. The conventional wisdom is reflected in the appellate court opinions applying the tort of intentional infliction of emotional distress in suits brought by employees against their employers and supervisors. It is not, however, reproduced in the everyday actions and attitudes of workers.... The focus of concern throughout this essay will be the working conditions and experiences of black and Latino employees of both sexes, and female workers, black, 41 Stan. L. Rev. I (1988). © 1988 by the Board of Trustees of the Leland Stanford Junior l'niversily. Copyrighted Material 797 798 I REGINA AUSTIN brown and white, all of whom occupy the lower tiers of the labor force. To be sure, the sources of the material circumstances of these minority men, minority women, and majority women are not the same. There are dangers in ignoring the particularities of the ideological and economic conditions and cultural responses that separate each group from the others as well as from the group of white male low status workers . Yet many members of these groups historically subject to multiple oppressions share a common experience of abusive supervision. For them, it is not isolated and sporadic rudeness, but a pervasive phenomenon that causes and perpetuates economic and social harm as well as emotional injury. In the places where these workers labor, racism and sexism obscure and are obscured by the perniciousness of class oppression . Mistreatment that would never be tolerated if it were undertaken openly in the name of white supremacy or male patriarchy is readily justified by the privileges of status, class, or color of collar. Moreover, minority and female low status workers appear to have little economic clout with which to combat such supervisory abuse. They do, however, criticize their work situations and resist them to a limited extent. This essay explores how the law might be useful in maximizing the affirmative politically progressive potential of their informal, local, and largely defensive cultural opposition to mistreatment on the job.... I. In Support of Authoritative Abuse [C]ourts and commentators have [addressed] abuse in the workplace in the context of the tort of outrage.... In delineating the requirements of a cause of action for the intentional infliction of emotional distress, the courts generally rely on Section 46 of the Restatement (Second) of Torts.4 Section 46 requires that the plaintiff prove that the defendant's conduct was 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....5 If the conduct does not rise to the requisite level, it is dismissed as being among those "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" to which the victim "must necessarily be expected and required to be hardened."6 As applied to the employment relationship, this means that every practice or pattern of emotional mistreatment except the outrageous, atrocious, and intolerable is treated as the ordinary stuff of everyday work life. The approach mandated...

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