Emotional Distress – “I Guarantee It”

By L. Michael Golden; Dec 2000

     The Mens’ Wearhouse is famous for its founder’s commercials.  However, the company is known to employment lawyers for another reason; it guarantees a private employee a cause of action when working conditions get rough.  Thanks to the Mens’ Wearhouse, employees can sue their employer for negligently causing emotional distress that is so significant that physical symptoms result.  Chea v. Mens’ Wearhouse, 85 Wn.App. 405, 932 P.2d 1261 (Div. I, 1998) (rev. denied 134 Wn.2d 1002 (1998) (as amended 1998 WL 961388).  In Chea, a salesman was assaulted by his manager for responding too slowly to a customer.  The assault resulted mainly in emotional, rather than physical injuries.  Mr. Chea filed suit but his claims were dismissed in reliance on a Division III opinion holding that a claim of negligent infliction of emotional distress was not available in the workplace.  See, Bishop v. State, 77 Wn.App. 228, 889 P.2d 959 (Div. III, 1995).  After the trial court dismissed Mr. Chea’s claims, he appealed and Division I reversed. 

     According to Division I, “…a negligent infliction of emotional distress claim is actionable in the employment context.”  However, applying Chea is not quite so simple.  As in all employment cases, the practioner should look closely for low visibility hurdles, and the Chea case presents a couple of examples.  First, Mr. Chea filed a workers’ compensation claim that was declined by the Department.  This strengthened his argument that the injuries were primarily emotional rather than physical.  Second, Chea was a private employment case and contains a strong dissent regarding its applicability to the public employment context.  Even with its limitations, the Chea case puts managers on notice that managers should think carefully before they assault an employee… “I guarantee it.”