92 N.C. L. Rev. Addendum 17 (2013)
A particularly troubling and seemingly common set of terminations involves women being fired for reasons related to their appearance or other reasons related to their sex. Although there are differences and nuances among the cases, at the simplest, they involve women being fired from jobs because they are, in the view of their superiors, either not sufficiently attractive or too attractive. Although it may seem that under such facts women could successfully sue for sex (or other) discrimination, this often is not the case.
One of the latest cause célèbre termination cases to provoke a collective sense of outrage is the case of Melissa Nelson, a dental assistant who was fired by her employer, dentist James Knight. Dr. Knight realized that he found Ms. Nelson "irresistible" and feared he might try to have an extramarital affair with her. As a result, and after his wife demanded it, he fired Ms. Nelson. Ms. Nelson, like most people who lose their jobs, thought she had been wrongfully terminated, and she sued. Unfortunately, Ms. Nelson was not in Heaven, or even Montana, but Iowa, which is one of the forty-nine employment-at- will states. So, under what theory could she sue Dr. Knight? Like so many other wrongfully terminated employees, she turned to the employment discrimination statutes and sued for sex discrimination. In a story that has been replayed almost innumerable times, a "wrongfully discharged" employee sued her former employer for employment discrimination and lost. The employer moved for summary judgment in the district court and won. On appeal, the Iowa Supreme Court affirmed.
Whether or not one agrees with the Iowa Supreme Court's decision in Nelson, the case illustrates the fact that employment discrimination laws do not provide redress for many unfair terminations. In the land of employment at will, what can provide a remedy for unfair discharges that a substantial segment of society considers outrageous, particularly terminations of women related to their appearance or other aspects of sex? This Article argues that outrage is the answer, but not just outrage expressed in op-eds, blogs, and news segments. The legal system has a tort designed for providing relief when the harmful conduct at issue outrages society. It is the tort of outrage or intentional infliction of emotional distress ("IIED").
Three major themes from employment law scholarship inform this Article. First, recent scholarship has examined the migration of principles and doctrines between employment discrimination law and tort law's. Second, many commentators have explored the relative difficulty of recovery on employment discrimination claims compared with other types of claims. Finally, it has long been noted that employment discrimination law inherently conflicts with employment at will, and the powerful employment-at-will doctrine is more influential-dictating the result in fringe cases that do not fit squarely within the protection of employment discrimination laws. In light of these three considerations, employment discrimination law need not be stretched to cover termination cases that are tinged with appearance-based or other sex-related discrimination. Instead, employment discrimination law should yield to, but also inform, tort law. The tort of IIED, although not currently filling this role effectively, could do so if infused with some tenets of employment discrimination law. Then, the amorphous concept of outrageous conduct would begin to take shape, and society could express its outrage at terminations like that of Melissa Nelson by providing a legal remedy. IIED could become a tort well-suited to patrolling the fringes of employment discrimination law and providing redress for outrageous terminations.