Common law claims gain favor in job discrimination cases.

Jeanna Childress of Lexington, North Carolina, says she was forced to quit her clerical job at a furniture distribution business after being sexually harassed by her supervisor. She took her case to state court, seeking damages from her employer for the severe emotional distress she allegedly suffered.

Her employer convinced the state judge that the case should have been brought in federal court under Title VII of the Civil Rights Act, which covers sexual harassment claims. But Childress wanted her case in state court, and the federal judge granted her motion to send it back. He held that it was her choice whether to pursue a state claim for emotional distress or a federal claim for sexual harassment. (Childress v. Charles L. Burks & Co., No. 4:95CV00148 (M.D. N.C. Sept. 25, 1995).)

"I didn't want to litigate in federal court," said Childress's attorney, Susan Hartzoge Gray, who practices in Winston-Salem. She wanted to avoid the limits that Tide VII places on damages that can be awarded to sexual harassment plaintiffs.

Issues like this have made state common law claims a better alternative for some workers seeking redress for on-the-job discrimination. These cases traditionally have been brought under federal and state civil rights laws, but employment lawyers say tort claims like intentional infliction of emotional distress or tortious interference with employment can offer procedural advantages and better remedies for clients.

Marilyn Tobocman, an Ohio assistant attorney general for civil rights and chair of ATLA's Employment Rights Section, said state and federal civil rights laws often provide inadequate relief for discrimination plaintiff. Their disadvantages include short statutes of limitations, administrative requirements, and limited remedies like caps on punitive damages.

"To avoid some of these procedural hurdles, common law claims permit you to get into court and have a full panoply of remedies available," she said.

Courts are divided on whether civil rights laws provide the exclusive remedy in discrimination cases. But some attorneys handling these cases say the courts have gradually become more receptive to common law claims, with several favorable decisions in the past year.

"It is a trend, and employment rights attorneys have been pressing for it," said Tobocman.

Bill Mauk, an employment rights lawyer in Boise, Idaho, said the trend has less to do with the courts and more to do with the attorneys who bring discrimination cases on behalf of employees. "What's happening is that the area of employment law generally is opening up," Mauk said. "More tort lawyers are practicing in that area. We're getting this cross-pollination of tort concepts and statutory claims."

In Childress's case, Judge James Beaty of the Middle District of North Carolina rejected her employer's argument that she had "artfully" pleaded an emotional distress claim when she actually was seeking relief for sexual harassment.

"A clear distinction exists between a federal claim for sexual harassment and a claim brought under the state tort of intentional infliction of severe emotional distress," Beaty said. "An allegation and subsequent proof of severe emotional or mental harm are required for a state action, while the same is not required under Title VII."

The same day Beaty ruled in Childress, the Colorado Supreme Court issued a similar decision in a case involving a restaurant manager who sued her employer for sex discrimination. The manager, Ramona Brooke - who also filed a separate federal suit with the support of the Equal Employment Opportunity Commission - made a state claim for tortious interference with employment.

The state supreme court allowed the case to go forward, rejecting her employer's contention that Colorado's antidiscrimination statute preempted her common law claim. (Brooke v. Restaurant Services, Inc., No. 94SC312, 1995 WL 562053 (Colo. Sept. 25, 1995).)

Ronald Gregson, a Denver attorney who represents Brooke, said an advantage to making the common law tortious interference claim is that discrimination law is "hypertechnical." Although it may be difficult to prove that the employer's conduct was motivated by bias, he said, the plaintiff may be able to win damages on a general claim that the worker was treated unfairly, regardless of the employer's motive.

Lawyers have also used common law claims to find a remedy for workers discriminated against by employers whose businesses are too small to be covered by civil rights statutes. Several courts have accepted their claims for wrongful discharge in violation of public policy.

In a recent case, the Ohio Supreme Court upheld the public policy claim of a woman who alleged she was sexually harassed by her boss, a veterinarian in a small animal hospital. The court held that although the state law prohibiting sexual harassment applied only to employers with four or more employees, the law did not "grant small businesses in Ohio a license to sexually harass/discriminate against their employees with impunity." (Collins v. Rizkana, 652 N.E.2d 653 (Ohio 1995).)

"The supreme court said the [antidiscrimination] statute creates the policy of the state," said Tobocman. "So we can use the statute here to reach employers who have less than four employees."

Appellate courts in California and Maryland issued similar rulings last year. (Badih v. Myers, 43 Cal. Rptr. 2d 229 (Ct. App. 1995); Brandon v. Molesworth, 655 A.2d 1292 (Md. Ct. Spec. App. 1995).)