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Legal Updates

Bullying In The Workplace

Employers should be focused on minimizing the risk of bullying in the workplace.  While bullying at schools is getting an enormous amount of attention, there are real legal and practical risks to allowing bullies to roam the workplace.  Moreover, the increased attention on school bullying, the widespread passage of anti-bullying laws for schools, and recent headline-grabbing examples of bullying in the workplace have already led to an increased focus on bullying in general.  In turn, this is likely to lead to changes in the law, and in how courts handle other employment claims involving allegations of bullying at work.  In order to prevent bullying at work, employers should follow the best practices outlined below.

Bullying at schools has led to numerous suicides in 2010, many of which grabbed headlines and occupied hours of national news programming.  Tragically, this year’s stories follow a decade in which 45 states passed laws expressly prohibiting bullying at school.  In Massachusetts, the school anti-bullying law went into effect in May 2010, and typically requires schools to adopt best practices, including comprehensive preventive measures, anti-bullying policies and plans, and employee training.  (Many of the concepts embodied in these state laws also serve as a resource for private employers who want to prevent bullying in the workplace.)

Of course, bullying is not limited to the school yard, and indeed, bullying in the workplace is clearly a real problem.  For example, earlier this year, an employee of a prominent literary magazine in Charlottesville, Virginia, committed suicide – allegedly because of workplace bullying by his supervisor.  An October 20, 2010, report summarizing the employer’s investigation into the allegations concluded that although there had been no complaints of bullying prior to the suicide, there had been prior reports that the supervisor was “not being courteous or respectful, . . . but none ever seemed to rise to the level of a serious, on-going concern.”  Of course, as the report also pointed out, “[i]t is sometimes difficult to define where the line gets crossed between a tough manager and an unreasonable one.”

Along these lines, currently there are no laws that expressly prohibit bullying in the workplace, although such laws have been in the works for a decade, have come close to being passed, and are likely to be passed in the future.

Regardless, even in the absence of new laws, there are real legal and practical risks to bullying in the workplace.  Victims of workplace bullying have sought legal recourse through claims of unlawful harassment based on a protected characteristic (i.e., race, gender, religion, etc.).  For example, an employee who was repeatedly humiliated in front of board members and other employees received a jury award of $400,000 on her retaliation claim, even though her underlying discrimination claim was denied.

In many of these harassment cases, where some kind of bullying occurred, the employer’s defense is, unfortunately, the “equal opportunity jerk” defense, where the manager admits that he (or she) uses foul language and yells at employees, etc.; but the “argument” is that this abusive behavior is not unlawful because the manager treats everyone in the same abusive manner.  Unfortunately, this is not the story that the employer wants to tell a jury of the plaintiff’s peers.

In addition, victims of workplace bullying may also pursue other state law claims, such as intentional infliction of emotional distress, assault and battery, tortious interference with business or contractual relations, and the like.  While such claims do not always succeed, employers should expect that juries and judges will be more open to these claims in the future, as the concept of bullying continues to gain attention in the news and acceptance in the court.

For example, in 2008, a victim of workplace bullying was awarded a $325,000 jury verdict.  The plaintiff complained that the bully (a surgeon) had told him he would “smack the s— out of him,” told him that he was “over” and “finished” and “history,” and finally charged toward him with a clenched fist, causing the plaintiff to fear for his safety and well-being.  As a result, the plaintiff suffered from depression, loss of sleep and loss of appetite.  He brought suit for claims of assault, intentional infliction of emotional distress and interference with employment relationship, and was successful in demonstrating that the defendant committed an actionable assault.

In short, employers have been held liable for workplace bullying, under claims of unlawful retaliation under anti-discrimination statutes and under state law claims.  Thus, this should serve as a wake-up call to employers:  even in the absence of defined workplace bullying laws, there is potential liability for workplace bullying.

More importantly, there are real personal and practical costs to allowing bullying in the workplace.  A 2010 survey by the Workplace Bullying Institute found that 35% of American employees – approximately 54 million employees – have experienced bullying firsthand, meaning workplace bullying was 4 times more prevalent than illegal harassment.  A similar survey found that 45% of those employees who have been bullied in the workplace suffered from stress-related health problems (e.g., anxiety, depression, post-traumatic stress disorder, etc.) attributable to such bullying, which contributes both to increased employee absenteeism and employers’ increased health care costs.  Additionally, approximately 40% of bullied employees voluntarily separate from their employment in direct response to ongoing workplace bullying, which results in increased employee recruitment and training costs for employers.  Given these significant costs, workplace bullying is an issue employers would be wise to focus on preventing right now.

Not surprisingly, then, in the past decade, there have been numerous attempts to pass laws that prohibit workplace bullying.  Since 2003, 19 states, including Massachusetts, New Hampshire, New York and Illinois in 2010, have attempted to pass such a law, although these attempts have been unsuccessful.  One version of these proposed laws, the Healthy Workplace Bill, seeks to make it an unlawful employment practice to subject an employee to an abusive work environment, regardless of the employee’s protected class status.  An “abusive work environment” is generally defined as an environment in which an employee is subjected to abusive conduct so severe that it causes tangible harm to the employee.

In Massachusetts, a version of this bill was under consideration in early 2010.  Also in 2010, the New York Senate passed a version of the law that would have established a civil cause of action for employees subjected to an abusive work environment.  However, the bill was placed on hold by the Assembly Labor Committee on June 8th, 2010, and is now slated for further action in 2011.  While the future of the Healthy Workplace Bill is unknown, employers should expect that the law’s supporters will continue to push state legislators for its passage.

Best Practices:  Employers Should Actively Prevent Workplace Bullying

To reduce the growing risks associated with workplace bullying, employers should adopt a general anti-bullying program, including anti-bullying policies and plans, and anti-bullying training.

Pursuant to the laws prohibiting bullying at schools, state departments of education often disseminate excellent model policies and plans for schools to use in compliance with anti-bullying laws.  These often serve as a great starting point for an employer seeking to implement a workplace anti-bullying program.  These programs borrow concepts familiar to sexual harassment prevention programs, but the anti-bullying programs prohibit all forms of bullying, whether or not the bullying behavior is based on the employee-target’s legally-protected characteristic(s).

The anti-bullying policy should define and prohibit bullying.  A well-drafted anti-bullying policy should also provide employees with internal channels to seek recourse and assert their legitimate complaints of bullying, and should provide clear procedures for prompt investigation and response.  An employer that provides its employees with an internal complaint process to address workplace bullying concerns, and clear guidance on its investigatory procedure, will not only increase the number of employment-related matters that it may resolve without judicial involvement, but also will afford itself the ability to unilaterally control any necessary investigations and disciplinary actions associated with workplace bullying.

In addition to implementing an anti-bullying policy, as part of the anti-bullying program, employers should also provide managers and employees with training on identifying and preventing workplace bullying.  Such training should focus on the appropriate methods for addressing complaints of bullying, as well as potential personal and professional consequences of engaging in workplace bullying.

Implementing and adhering to a workplace bullying program that subjects employees to disciplinary action for engaging in bullying behavior should minimize the risks of bullying.  It also has the potential to foster a positive work environment, which may lead to increased employee satisfaction and increased productivity.

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Until new laws are passed that expressly prohibit workplace bullying, employers should expect that employees, courts and juries will find ways to work around that void, particularly as news reports and tragic suicides continue to follow allegations of bullying at school and at work.  Accordingly, employers should implement an anti-bullying program to reduce the significant legal, practical and personal risks associated with bullying at work.

This article previously appeared in the November 2010 edition of New England In-House.  Will gratefully acknowledges New England In-House for its support in publishing this article.