Suppose an employee claims workplace harassment and sues her employer asserting an assortment of tort claims – intentional infliction of emotional distress, negligent supervision, negligent retention, and battery. And suppose further the employee has declined to assert any statutory claims under Title VII or the Florida Civil Rights Act. Can the employer move to dismiss the complaint on the grounds that the plaintiff’s tort claims are really claims of workplace harassment that must be pleaded under Title VII or the Florida Civil Rights Act?

The clear answer is no. Title VII and the Florida Civil Rights Act do not preempt tort claims. And Florida and federal pleading rules allow a plaintiff to assert alternative theories of recovery under the same facts. A plaintiff can assert Title VII claims, FCRA claims, or tort claims – or a combination thereof.

These basic rules did not prevent the defendant in a recent case from making the novel argument that the plaintiff’s tort claims were barred because they were “actually” claims for sexual harassment that must be pleaded under Title VII or the FCRA. And, strangely enough, the Broward County Circuit Court judge agreed with the defendant, and even sanctioned the plaintiff’s attorney for failing to comply with the pre-suit procedures set forth under Title VII and the FCRA. Last week, Florida's Fourth District Court of Appeals reversed the trial court’s ruling in Gerber v. Vincent’s Men’s Hairstyling, Inc., Case No. 4D09-5059 (Fla. 4th DCA March 30, 2011).

So what should a defense lawyer when faced with common law claims of harassment? My strategy is to attack the claims on their merits, if possible. For example, the tort of intentional infliction of emotional distress requires a showing that the defendant’s conduct was “so outrageous in character and extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a civilized society.” Garden variety harassment claims will not meet that high standard. Negligence claims are subject to attack because they require the violation of a common law duty, and there is no duty under common law to prevent workplace harassment.

Still, a motion to dismiss may not always be possible. To state a cause of action for civil battery, a plaintiff merely has to allege that the defendant intentionally inflicted a harmful or offensive contact upon the plaintiff. Allegations of sexual harassment often are accompanied by a claim of battery. In such a case, if the plaintiff alleges the requisite elements for battery, I answer the complaint and get to work on discovery. As the Gerber case illustrates, there is nothing to be gained from asserting that the plaintiff’s tort claims are “actually” something else. The claims will ultimately stand, or fall, on their merits.