I am a law student in San Francisco and last semester I learned about how people can sue for emotional distress caused by the malicious words and actions of others. Racism and sexism are some of the most malicious things I can think of, yet both struggle to be adequately remedied by the law.
To break things down for all my non-lawyers reading this, there’s this thing called “torts”, or a legal wrong that is sort of like, but not quite at the criminal law level. It’s for accidents, wrongful deaths and anything morally wrong but not as violent. There’s an alteration that needs addressing and blame that needs to be placed. Assault and battery are both torts that can result in compensation and money damages for the victim, but some things are worse than getting punched.
The intentional infliction of emotion distress(IIED) is a tort which holds a perpetrator liable when through their words and conduct they intend to cause emotional distress to the victim. This tort is a recent development in the courts, only emerging in the 1930’s/40’s, as a legitimate legal claim. Now we don’t want just anyone who gets their feelings hurt to be able to sue. The tort requires that the words and conduct be “extreme and outrageous”; that which a “civilized society” would not allow and find repugnant. This requirement protects the tort from being used in every case where someone says something mean or rude, and not deserving of court-ordered compensation. So far the courts have acknowledged this tort especially in cases involving employees of hotels, theaters, public utilities, and carriers such as air planes and car services. The reason for this class distinction is because those services include some heightened sense of hospitality or duty to be nice to its patrons, unlike the general expectation of civility between strangers. In a case I studied the California Court of Appeals awarded money to the victim because the defendant’s words and conduct inflicted “such powerlessness [which] is one of the most debilitating kinds of human oppression”(Diamond, 53).
I propose that a new class of torts be developed, which acknowledges the inherently oppressive nature of words and conduct used to perpetuate racism and sexism. In the same way the current class acknowledges a heightened sense of civility, dropping to the level of overt racism and sexism goes down to a level of incivility that our civilized society should legally hold perpetrators accountable for. There is an inherent power dynamic with racism and sexism; it is done onto one party, who is inherently harmed in the process, by a party who cannot be harmed that same way, even if we tried. Racism and sexism are weapons designed to cause a wound only those groups can incur. There is a disparity in the power dynamic that leaves the harmed party powerless to what is being done onto them. A woman of color CANNOT do to a white male what a white male can do to her and that is a fact. To disrespect one’s race and or sex is to disrespect their identity, or the foundation of their very being, and the nature of that being is so clear and ingrained it is reflected in the skin they were born in and will wear for life. Surely a civilized society would not tolerate such a thing. The intentional use of words and conduct to oppress someone on the basis of race and or sex as to cause them longterm mental and emotional distress is consistent with the long-standing legal precedents that have always defended individual citizens from such harm. (This is not to say that people of color and individuals of different genders cannot be racist or sexist. Such situations should be handled accordingly and individually.)
The purpose of the IIED tort, as it stands today, is to protect people’s general safety as to their physical, mental, emotional well-being from being harmed or offended by any other individual. We are currently ignoring a crucial way people’s mental well-being is being drastically harmed by racist and sexist acts by not holding the offenders accountable. To be clear, the tort would only regard a distinct act in question, and consider other microaggressions as supportive evidence of the altercation.
Let me add one more thing. The reason that this currently isn’t its own distinct class and why the mental health needs of women and people of color are habitually belittled is because the dominant class, rich(er) white straight cis able-bodied men, cannot be inflicted with the same type of emotional distress. This doesn’t exist because why would it in a society run by this class? They cannot have PTSD for racism and sexism in the same way. They cannot have anxiety when leaving the house in fear of who may oppress them for something entirely out of their control. They oppress people with their words and conduct in a way that can never be done onto them, and this disparity must have protection. This point is self-evident and is reflected in current policy that is without such inclusion. The individuals who tend to raise the IIED tort in its current form are often those with the privilege of not being ridiculed for their race and or sex. There is no need for a protection against a nonexistent danger. But it is not nonexistent to many of us, and we deserve protection.
This is not to say that there ought not to be similar legal remedies and approaches to similar wrongs which are homophobic, xenophobic, anti-semetic and every -phobia and -ism that plagues this world. This article was written simply to shed light on these larger categories as a good first step.
Diamond, John L. Torts; Cases and Materials. St. Paul, West Academic Publishing, 2016.