Official Publication of the Minnesota State Bar Association


Vol. 62, No. 8 | September 2005
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The Law of Bullying:
Off
the Playground and Into the Workplace

Emerging case law and legislation regarding workplace bullying underscore the prevalence of the phenomenon and the continued expansion of the definition of workplace “harassment.”

by John A. Mack

Playground bullies grow up.  They leave behind the broken toys and bloodied noses of the sandlot in exchange for the broken pencils and bruised egos of the office.  With increased attention on what constitutes appropriate interactions between coworkers, bullying is emerging as a viable legal claim in the vein of sexual harassment. Recognizing and addressing bullying behaviors is therefore essential for maintaining a productive work environment and eliminating possible legal claims.

The Jerk At Work

A friend recently told me about an interesting conversation he had with a plumber when he was a young boy. As the plumber took yet another break while fixing the family’s kitchen sink one day, the plumber charitably advised him on the three most important things he would ever need to know in life. The plumber’s insights were startling in their clarity.  He told my friend to never forget the following: (1) excrement runs downhill; (2) payday is Friday; and (3) the boss is a jerk.  Naturally, the plumber used more colorful language.

Although the significance of the first two points is certainly worthy of further contemplation, the third point is important for our purposes.  The boss may well be a jerk, but there is no law against being a jerk at work.  Employees may be treated unfairly, yelled at, humiliated, and manipulated.  Supervisor expectations may be unreasonable and performance evaluations may be unkind and unjust.  It’s not fair, but it’s not necessarily illegal. Or is it?

The law of bullying is clearly in its infancy, but it is making headway into lawsuits and legislation around the country.  The emergence of bullying law appears to coincide with the decrease in severe sexual harassment claims.  Such claims have diminished through revamped policies and reporting procedures, recurring training, employers promptly addressing claims, and increased media attention.  But just as employers began to get a handle on sexual harassment, the definition of “harassment” expanded.  Policies began popping up all over workplaces that not only prohibited unlawful harassment, but went on to prohibit all forms of harassment, including incivility among coworkers.  These “general harassment” policies are usually drafted broadly to cover a wide range of behaviors.

For example, consider the following definition of harassment from a typical “general harassment” policy:

The term harassment is defined as any verbal, written, or physical conduct directed toward an individual or group of individuals which a person knows or has reasonable grounds to know would intimidate, demean, or degrade the individual’s or group’s character, self-worth or dignity.

Harassment is further defined as that conduct which has the effect of limiting or denying equal opportunity or treatment and is conducted in disregard for that individual’s or group’s human or civil rights and which may result in their mental, emotional, or physical discomfort, ridicule or harm.  Offensive language or behavior which interferes with a person’s employment or performance or otherwise creates a hostile environment shall fall within the meaning of harassment.

It would be hard to argue that workers are not entitled to work in an environment free of such behaviors, but some detractors believe broad definitions of harassment open the door to more tenuous or problematic complaints (e.g., a raised voice is perceived as yelling or a rap on the table for emphasis is perceived as threatening). Regardless of their pros and cons, “general harassment” policies generally encompass bullying behaviors and have provided recourse for targeted employees

Are You Bullying Me?

Definitions vary to some degree, but bullying usually involves any persistent form of abuse that makes the victim feel singled out from colleagues. Prof. Gary Namie of the Workplace Bullying and Trauma Institute defines bullying as “the repeated, health-endangering mistreatment of a target by a cruel perpetrator, through hostile verbal and nonverbal communication and interfering actions, or the withholding of resources (time, information, training, support, equipment — that guarantee failure), which are all driven by the bully’s need to control the target.”1  According to research conducted by Prof. Loraleigh Keashly and Prof. Joel H. Neuman, the top ten bullying behaviors include the following:2

1. Glaring in a hostile manner
2. Treating in a rude/disrespectful manner
3. Interfering with work activities
4. Giving the “silent treatment”
5. Giving little or no feedback on performance
6. Not giving praise to which a coworker feels entitled
7. Failing to give information needed
8. Delaying actions on matters of importance to you
9. Lying
10. Preventing a coworker from expressing self

Bullying behaviors should not be confused with “horseplay,” characterized by a lack of animosity, which has its own body of law.  As a California court wistfully commented many years ago: 

Given the propensities and tendencies of mankind and the ordinary habits of life, it must be admitted that wherever human beings congregate, either at work or at play, there is some frolicking and horseplay.3

Bullies Are At Work

As a workplace investigator into claims of employee misconduct, I have noticed that complaints of bullying are on the rise.  Although the claims are typically couched in terms of a “hostile work environment” or “mistreatment,” at their core they are claims of bullying. In fact, two recent workplace investigations involved allegations of gender and race discrimination. When pressed, however, the complainants in both investigations conceded they did not really believe they were being discriminated against.  Instead, the complainants said the alleged offenders were, first and foremost, bullies. Witness interviews confirmed that the offensive behaviors at issue were bullying behaviors, and witnesses repeatedly referred to the alleged offenders as “bullies.”  Interestingly, neither employer had a “general harassment” policy, which might have covered the alleged behaviors.  Instead they had traditional sexual harassment and discrimination policies.  The complainants’ only recourse, therefore, was to claim they were subject to discrimination and a hostile work environment.

Research supports the anecdotal evidence showing that bullying is frequently occurring at work. According to a 2004 National Institute for Occupational Safety and Health survey, one out of four employers conceded that some degree of bullying occurred at their workplaces during the preceding year.4  Prof. Harvey Hornstein, who served in the Department of Social and Organizational Psychology at Columbia University for over 30 years, agrees.  Based on his research, Prof. Hornstein estimates that 90 percent of the workforce suffers abuse from their bosses at some time in their careers.5 

Outlawing Workplace Bullies

Historically, employees had little legal recourse against bullying, unless they could tie the behavior to certain protected classes, such as gender or race.  In other words, if the boss is mean to everybody, he or she is not breaking the law.  At present, there are no laws that specifically address workplace bullying.  In August 2001, the California Supreme Court hinted that legislation on bullying might be warranted.  In Torres v. Parkhouse Tire Service, Inc., an employee sued his employer and a coworker for personal injury and loss of consortium resulting from a coworker lifting him off the ground several times and dropping him on his knees.6 Although the California Supreme Court tied bullying to protected class, the court commented as follows:

In any event, aggressive physical bullying is one of the common tools of racial and gender-based harassment and sometimes leads to injury, whether or not injury is specifically intended.  That the Legislature might wish to deter this obnoxious behavior by the threat of civil liability should not trouble us.7

Legislators in a handful of states, including Hawaii, Massachusetts, Oklahoma, Oregon and Washington, may have heeded the counsel of California’s Supreme Court, as they have attempted or are attempting to introduce “healthy workplace” bills to combat workplace bullying.  If enacted, the legislation would make workplace bullying an unlawful employment practice and allow employees to bring civil actions alleging workplace bullying. Legislators will have their work cut out for them.  As with the introduction of “general harassment” policies into the workplace, there will be even more skeptics regarding the benefit of unleashing our legal system on something as imprecisely defined as bullying.

Currently, the best that can be said of these various bills is that some remain alive in committee for possible consideration in 2006.  The specific status of the state bills is as follows:

Hawaii. In 2005, two bills with identical language were introduced to the Hawaiian House (HB 232) and Senate (SB 481) to allow both bodies to consider the legislation. If enacted, the law would prohibit the “unlawful employment practice of subjecting an employee to an abusive work environment” and provide a “legal recourse for employees who have been psychologically, physically, or economically harmed by being deliberately subjected to abusive work environments.”  At present, the bills have stalled in committee and are awaiting consideration in 2006.8

Massachusetts. Legislators in Massachusetts are laying the groundwork for the possible introduction of a workplace bullying bill.  On November 2, 2004, a ballot passed in Massachusetts’ 3rd Hampshire District that included a survey of public policy questions regarding possible legislation on workplace bullying.  The survey asked, among other things, whether the state representative from the district should introduce legislation that declares workplace bullying an occupational health and safety issue.9

Oklahoma. In Oklahoma, House of Representatives Bill 2467, regarding workplace bullying, was introduced on Jan. 20, 2004.  The bill later died in the Commerce, Industry and Labor Committee.10

Oregon. In Oregon, two House bills were introduced in 2005 to address workplace bullying (HB 2410 and HB 2639).  If enacted, either law would declare workplace bullying an “unlawful employment practice,” and would allow employees to bring a civil action alleging workplace bullying.  Both bills remain in committee.11

Washington. In contrast to the other state bills on bullying, Washington legislators introduced a bill (HB 1968/ SHB 1968) that did not provide for legal recourse. The bill expressly stated “nothing in this act creates a legal right or cause of action,” and “nothing in this act denies or alters any existing legal right or cause of action.” Instead, the purpose of the proposed law was to “define workplace bullying, encourage employers to voluntarily enact policies to eliminate workplace bullying, and conduct further study of the impacts on society related to workplace bullying.”  The bill also called for the appropriation of $40,000 to conduct a study on workplace bullying.  The bill passed the House Committee on Commerce & Labor, but in March 2005, the bill died in the House Appropriations Committee.12

Federal Legislation. As with state law, there is currently no specific legislation addressing workplace bullying at the federal level.  On June 22, 2004, Sen. Tom Harkin (D-Iowa) introduced an omnibus bill called the HeLP (Healthy Lifestyle and Prevention) America Act (S2558).13 The wide-ranging legislation calls for the creation of programs to stimulate health promotion in the workplace, including stress management.  Sen. Harkin’s bill, which does not specifically address bullying, is unlikely to pass in its present form (over 300 pages with at least 20 programs to stimulate health promotion in the workplace, school, and community), but it is important for recognizing the role health promotion can play in enhancing workplace environments.

Bullies In Court

Absent “anti-bullying” statutes, employees have had to come up with other legal means to address workplace bullying.  Although the list of legal theories to combat workplace bullying is not lengthy, case law reveals that workplace bullying is actionable.  Here is a look at a few of the legal claims made against the workplace bully:

Intentional Infliction of Emotional Distress. The primary legal theory pursued against workplace bullying is the intentional infliction of emotional distress. To state a cause of action for intentional infliction of severe emotional distress in Minnesota a plaintiff must show the following four elements:

1. the conduct must be extreme and outrageous;
2. the conduct must be intentional or reckless;
3. it must cause emotional distress; and
4. the distress must be severe.14 

The biggest hurdle to proving the tort is demonstrating that the conduct complained of is “so atrocious that it passes the bounds of decency and is utterly intolerable to the civilized community.”15  Bullying behaviors are often subtle and far removed from extreme and outrageous conduct. Or, the behaviors may be viewed as inappropriate but not far enough “out there,” as the following comments from a Georgia court illustrate:

The liability for intentional infliction of emotional distress clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to occasional acts that are definitely inconsiderate and unkind.16
 

Despite the difficulties in making such a claim, in March 2005 a worker in Indiana successfully sued on a claim of bullying, brought under the guise of intentional infliction of emotional distress and assault.17  In Doescher v. Raess, the Indiana jury ordered a heart surgeon to pay a former coworker $325,000 for screaming and lunging at him.18 Plaintiff’s counsel described the defendant as “a domineering manager who viewed himself as untouchable.” Defense characterized the plaintiff as an “active participant” in a “shouting match between two strong-willed individuals.”  In the end, however, the jury concluded that the defendant was essentially a bully.

Intentional Interference with a Business Relationship. Employees have also asserted the claim of intentional interference with a business relationship regarding coworkers’ bullying behaviors.  These claims relied upon the Restatement (2nd) of Torts, which provides:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.19

For example, in Eserhut v. Heister, a Washington court found that an employee can be liable for intentionally interfering with a coworker’s contractual relationship with the employer resulting in the coworker’s resignation.20  Under the facts in Eserhut, three of the plaintiff’s coworkers isolated him “by not communicating with and socially ostracizing him.”  The plaintiff claimed his coworkers’ treatment of him caused sleeplessness, depression, and indigestion.  The court concluded that if the plaintiff could prove the elements of the tort, “the coemployees can be held liable for intentionally interfering with [plaintiff’s] employment.”

Workers’ Compensation Statutes. Workers’ compensation statutes generally provide replacement income and medical expenses to employees who are injured or become ill due to their jobs. In most circumstances, workers’ compensation pays relatively modest amounts and prevents the worker or dependents from suing the employer or coworkers.  However, there are exceptions to the exclusivity provisions of workers’ compensation statues.  For example, in California, an injured employee may bring a civil action against another employee when an injury is proximately caused by the willful and unprovoked physical act of aggression of the other employee.21  This theory, however, would require an overt physical act, which is uncommon in bullying situations.

Civil Rights. An employee may have a cause of action against a coworker under civil rights acts that prohibit, for example, threats, intimidation or coercion involving an aggrieved employee’s secured rights.  In Bowman v. Heller, a Massachusetts court allowed such a claim under the Massachusetts Civil Rights Act.  However, the court found that no threat, intimidation or coercion within the meaning of the act had occurred by virtue of a coworker’s distribution of photocopied representations of the plaintiff’s face and name superimposed over pictures of women striking lewd poses.22

Breach of Contract. As mentioned previously, employer policies against workplace harassment are becoming broader and broader, resulting in increased complaints, and opening the door to a breach of contract claim.  Indeed, policies that do not just prohibit unlawful harassment but prohibit “all forms of harassment” in the workplace could become the basis for a breach of contract lawsuit by an employee victimized by the jerk at work.

Tackling Bullies at Work

Regardless of the precarious state of bullying law, employers need to be encouraged to identify and address bullying when it happens, both to stem its negative effects on the workplace and avoid possible legal action.  Prevention is the key to combating bullying, and accepting that bullying might be occurring even though you cannot see it is the first step in curbing it.  Sudden increases in absenteeism and unexplained requests for transfers may provide clues.  Personality conflicts, combative or controlling personality types, and negative performance reviews can also be revealing, as bullying usually focuses on distorted or fabricated allegations of weak performance.  Worker attitude surveys and exit interviews can also bring problems to light.

Another important initial step, both for attorneys advising employers and those managing their own work environments, is to set the appropriate tone for the workplace. Model and promote professional conduct at all times.  Your behaviors will be noticed and adopted.

Conclusion

Workplace bullying has emerged as an actionable legal claim, and the claim may get a significant boost with the passing of pending “anti-bullying” legislation.  Identifying bullying and addressing its impact is therefore crucial for not only maintaining a productive atmosphere but eliminating potentially costly lawsuits. c

Notes
1 Available at http://www.bullyinginstitute.org/def.html (accessed July 7, 2005).

2 Loraleigh Keashly and Joel H. Neuman, Exploring Persistent Patterns of Workplace Aggression 26 (2001) (available at http://www3.uakron.edu/psychology/faculty/moberg/KeashlyNeuman.pdf) (accessed July 7, 2005).

3 Pacific Emp. Ins. Co. v. Ind. Acc. Com., 158 P.2d 9 (1945).

4 National Institute for Occupational Safety and Health,Most Workplace Bullying is Worker to Worker, Early Findings from niosh Study Suggest” (available at http://www.cdc.gov/niosh/updates/upd-07-28-04.html) (accessed July 7, 2005).

5 Harvey A. Hornstein, Brutal Bosses and Their Prey xiii (1996).

6 Torres v. Parkhouse Tire Service, Inc., 30 P.3d 57 (2001).

7 Id. at 12.

8 Visit http://www.capitol.hawaii.gov/ to view the text and status of Hawaiian legislation.

9 Massachusetts State Network of Grassroots Lobbyists, “Workplace Bullying Public Policy Question on the Ballot” (available at http://bullyinginstitute.org/advocacy/malegis.html) (accessed July 7, 2005).

10 Visit http://www.lsb.state.ok.us/ to view the text and status of Oklahoma legislation.

11 Visit http://www.leg.state.or.us/searchmeas.html to view the text and status of Oregon legislation.

12 Visit http://www1.leg.wa.gov/legislature to view the text and status of Washington legislation.

13 The full text of United States Senate bill S2558 is available at http://thomas.loc.gov. 

14 Hubbard v. United Press International. Inc., 330 N.W.2d 428, 438-39 (Minn. 1983).

15 Id. at 439.

16 Turnbull v. Northside Hospital, Inc., 470 S.E.2d 464 (1996).

17 Dana Knight, The Indianapolis Star (03/02/05).

18 Eric Martin, The Indianapolis Star (03/05/05).

19 Restatement (Second) of Torts 766A (1979).

20 Eserhut v. Heister, 762 P.2d 6 (1988).

21 Lab. Code, n1 §3601, subd. (a)(1); Torres v. Parkhouse Tire Service, Inc., 30 P.3d 57 (2001).

22 Bowman v. Heller, 420 Mass. 517, 519 n.4 (1995).


CURBING BULLYING AT WORK
  • Create and distribute policies that clearly set forth unacceptable behaviors, reporting procedures, prohibitions on retaliation for filing a complaint, and specific discipline for policy violations. The policies should explain that complaints will be treated confidentially and investigated promptly.
  • Regularly conduct respectful workplace training that educates employees on recognizing bullying and taking responsive action, including self-help. Ensure that managers and supervisors have the skills to recognize and handle inappropriate behaviors.
  • When an allegation of bullying arises, give the complainant the benefit of the doubt and take the allegations seriously. Send the message that you take such complaints seriously and you will not tolerate inappropriate behaviors (whether from bullies or false accusers).
  • Promptly investigate the matter and determine whether the behavior is appropriate for the workplace, regardless of what the alleged offender intended. Make sure all parties are heard.
  • If bullying is identified, discipline violators consistently, fairly, and expeditiously. Direct employees towards appropriate counseling, personal development coaching, and anger management training, as needed. As in handling any workplace issue, adhere to established policies and appropriate past practices.

JOHN A. MACK is an attorney providing customized workplace investigations into claims of employee misconduct.  For more information, please visit www.johnmacklaw.com, or call 612-867-4283.