Although employers are protected from claims for negligent infliction of emotional distress in sexual harassment cases, a recent opinion by U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania held that employers are not automatically protected from claims for intentional infliction of emotional distress that allegedly results from sexually harassing behavior in the workplace. Prior to Judge DuBois' ruling in Brooks v. Mendoza and Denny's, Inc., defendant employers regularly argued that a sexual harassment plaintiff's claim for intentional infliction of emotional distress was pre-empted by the Pennsylvania Workers' Compensation Act ("Act") because the Act provides the sole remedy for injuries alleged sustained during the course of employment. However, Judge DuBois held that the Act's "personal animus exception" excludes claims for intentional infliction of emotional distress. Judge DuBois found that the Act does not cover employee injuries caused by intentional conduct of third parties for reasons that are personal to the tortfeasor and not directed against the plaintiff as an employee or because of his employment.

In the Brooks case, the plaintiff, a former hostess at a Denny's restaurant in Allentown, Pennsylvania, claimed that Mendoza, her manager, harassed the plaintiff when he placed a vibrating object in his pants and, despite her objections, followed her throughout the restaurant. The Court found that although the alleged conduct took place in the workplace, the manager's actions were personal in nature and disconnected from the work situation. Therefore, the Court found, the plaintiff's claims satisfied the personal animus exception and allowed plaintiff's claims for intentional infliction of emotional distress to proceed. However, the Court dismissed the claim for negligent infliction of emotional distress since it was pre-empted by the Act.

In light of this ruling, employers should be aware that a plaintiff alleging sexual harassment may be allowed to proceed with a claim for intentional infliction of emotional distress and are cautioned to consider this ruling when assessing a sexual harassment complaint. Unfortunately, most sexual harassment claims center around conduct that is offensive and for the most part, personal in nature. Defense lawyers, especially those practicing before the District Court for the Eastern District, will likely be prevented from automatically succeeding on any motion to dismiss an intentional infliction of emotional distress claim, especially when the sexually harassing conduct is alleged to be "personal in nature."