Bullies in the Workplace

Why It Matters

There is a growing body of research demonstrating the very harmful effects of workplace bullying on targets and employers alike. Psychological effects upon its victims include stress, depression, mood swings, loss of sleep, and feelings of shame, guilt, embarrassment, and low self-esteem. (Gary Namie, Ruth Namie, “Bullyproof Yourself At Work” (Work Doctor, 1999), p. 17.) High turnover, absenteeism, poor customer relations, and acts of sabotage and revenge are among the costs to employers of abusive behavior. (Emily S. Bassman, Abuse in the Workplace: Management Remedies and Bottom Line Impact (Quorum Books, 1992), p. 137.)

There is little recourse for victims of workplace bullying; no legislation exists specifically addressing this issue. Abused employees may allege violations of federal and state civil rights laws ' but only if the abuse is due to an individual's “protected class,” such as his or her race, gender, religion or age. Most workplace bullying, though, is “status blind.”

A Typical Case

A 1992 Washington State decision illustrates this principle. Darlene Adams was a retail sales clerk for Able Building Supply in Ephrata, WA. The store was managed by Tom Thomas, who was described by the court of appeals as “rude, boorish, thoroughly obnoxious and prone to outrageous temper tantrums.” According to Adams' lawsuit, Thomas repeatedly flew into rages on a number of occasions and routinely yelled at his employees. On one occasion, he shouldered Adams away from her computer and engaged in a shouting match with her, leaving her to flee in tears to the women's restroom.

Ultimately, Adams gave notice and resigned, claiming she was unable to tolerate Thomas' abuse. She filed suit against Able under the Washington Law Against Discrimination, alleging that she had been subjected to a demeaning, hostile, and threatening pattern of behavior. In response, the company argued that Thomas treated all the store employees the same and that Adams had no evidence that the harassment was directed at her because of her gender.

Noting that the civil rights statutes are not a “general civility code,” the court concluded that Adams' claim failed due to the fact that she had been unable to establish that the conduct occurred because of her sex. “It is not sufficient to show that the employee suffered embarrassment, humiliation, or mental anguish arising from non-discriminatory harassment. The dispositive question is whether Ms. Adams would have been subject to harassment if she had been a man.” Because the employer was able to demonstrate that its supervisor was equally abusive to all its employees, the court of appeals affirmed the dismissal of Adams' claims. (Adams v. Able Building Supply, Inc., 57 P.3d 280 (Wash. Ct. App. 2002).)

IIED: Does It Work?

Employees frequently claim Intentional Infliction of Emotional Distress (IIED) to seek relief against emotionally abusive treatment in the workplace. Section 46(1) of the Restatement (Second) of Torts, heavily relied upon by many courts for guidance in considering such claims, defines IIED as follows: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress … ” Furthermore, Comment d to the Restatement's IIED section states that “ [l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society” ' a very high standard.

Courts frequently reject workplace IIED claims, finding employers' behavior is not extreme or outrageous enough to meet the tort's elements. The following cases demonstrate the high bar courts have set for conduct to be considered “outrageous.” In Mizraie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Ct. App. 1998), the appellate court affirmed a trial court's dismissal of an IIED claim. The plaintiff in this case alleged that his supervisor, among other things, yelled at him in front of other managers, called him at 3:00 a.m., and “browbeat [him] for hours,” required him to “needlessly cancel vacation plans,” refused to allow him to spend a day at the hospital with his wife after the birth of their son, intentionally called the plaintiff's wife by the plaintiff's former wife's name, and delivered the notice of termination 2 hours before the plaintiff's wedding. There was nothing “in this working milieu,” said the court, “that would elevate the recited facts to the 'outrageous' level.”

Plaintiffs are more likely to succeed under IIED claims based on allegations of severe status-based harassment or discrimination. For example, in Bryant v. Better Business Bureau of Maryland, 923 F. Supp. 720 (D. Md. 1996), a female membership coordinator demonstrated conduct sufficiently extreme and outrageous to warrant liability for IIED under Maryland law when the organization's president, against her will, fondled her breasts and put his hand down her blouse and up her skirt, once touching her crotch. The court opined that it is outrageous to “penetrate the perimeter of a woman's clothing and touch areas of the female anatomy which are generally considered off-limits to anyone other than a consensual sexual partner or a physician.”

Workplace bullying has also surfaced in the labor arbitration forum ' with positive results for the victims. In one case, a letter carrier in Wisconsin brought a grievance pursuant to an anti-violence policy in a collective bargaining agreement. The letter carrier claimed that, in response to a complaint by a postal customer, his supervisor approached him in anger, aggressively waving his arms and yelling. A witness testified that the supervisor repeatedly called the letter carrier a “liar,” and appeared “out of control.” The supervisor admitted to having used profanity toward other employees and losing his temper before on the workplace floor. He also received remedial supervisory training as a result of another employee complaint.

The U.S. Postal Service denied the grievance on the grounds that the supervisor's behavior did not rise to the level of a violation of the anti-violence policy because there were no direct threats of violence. Postal management also claimed that there was no intent on the supervisor's part to bully, harass, or intimidate the letter carrier. Finding a violation of the anti-violence policy, arbitrator Bernice L. Fields wrote that “[v]iolence in the workplace begins long before fists fly, or lethal weapons extinguish lives. Where resentment and aggression routinely displace cooperation and communication, violence has occurred. Such violence surfaces as threats, intimidation, harassment and sub-lethal assault … The (anti-violence policy) is intended to reach and to correct emotional violence as well as actual physical attacks.” (“Postal Service Supervisor and Manager Guilty of Abuse,” Workplace Bullying & Trauma Institute, www.bullyinginstitute.org.home/twd/bb/bbstudies/uspsarb.html.)

In another case, an arbitrator overturned the discharge of an employee for insubordination because the employee was provoked by the supervisor's bullying behavior. The supervisor screamed and yelled at the employee, “got in his face” (pointed his finger within 3 inches of the employee's nose) and jerked work away from the employee, throwing it on the floor. (Oklahoma Fixture Co. & Carpenters, Local 943, 01-02 ARB. (CCH) para. 3912 (2001) (Shieber, Arb.))

Pending Legislation

Several pieces of state legislation have been proposed in recent years to curb workplace bullying. The “Healthy Workplace” bill (AB 1582) was introduced in the California legislature in February 2003. The bill declares that California's social and economic well-being depends on healthy and productive employees and prohibits “abusive conduct” and “abusive work environments.” An abusive environment, the legislation says, “is a workplace where an employee is subjected to abusive conduct that is so severe that is causes physical or psychological harm to the employee.” If an “unlawful employment practice” occurs in violation of the proposed law, a harassed employee would be able to sue and potentially to collect a payment of up to $25,000 for emotional distress. The bill, however, was withdrawn by its legislative author soon after its introduction and is dead for 2004. (“The State of California Anti-Bullying Bill Died in 2004,” Workplace Bullying & Trauma Institute, www. bullyinginstitute.org/home/calif.html.)

A similar measure, the “Abusive Work Environment Act” (HB 2467), was introduced in the Oklahoma legislature on Jan. 20, 2004. The law also provides for damages for emotional distress of $25,000. In addition, a Washington state legislator announced that she will introduce the “Healthy Workplace” Bill in 2005 to outlaw workplace bullying. (Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/advocacy/ walegis.html )

Legislation Abroad

Foreign countries have been more active than the U.S. in banning workplace bullying. In December 2002, Quebec Province's Labour Standards Act in Canada was overhauled to ban “psychological harassment” in the workplace. The term is defined as any “vexatious behavior in the form of repeated and hostile or unwanted conduct that affects an employee's psychological or physical integrity,” including unwanted attitudes, comments and gestures. Starting in June 2004, employees experiencing workplace bullying may begin to file complaints with the Quebec Labour Standards Commission. (Gary Namie, “Workplace Bullying: Escalated Incivility,” supra, p. 6.)

The UK has passed a “Protection From Harassment Act 1997.” A person guilty of harassment (defined as “alarming the person or causing the person distress”) is liable to imprisonment for up to 6 months or a fine or both. In 1993, Sweden promulgated a “Victimization At Work Ordinance.” The measure states “[t]he employer should plan and organize work so as to prevent victimization.” Furthermore, “the employer shall make clear that victimization cannot be accepted.” (“Partial Review of International Laws and Codes Relating to Bullying, Other than Discrimination,” Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/home/twd/bb/bbstudies/ intlaw.html intlaw.html.)

Conclusion

The business case for strict anti-bullying programs is compelling. Potential benefits include a more peaceful and productive workplace, less time lost to sick leave, higher staff retention, and a lower risk of legal action. Accordingly, prudent employers should take the following steps to stop abusive workplace behavior: 1) Develop a written policy on workplace bullying and widely distribute and display it.

This can be incorporated into an existing anti-harassment statement; 2) Encourage workers to come forward if they are being bullied; 3) Include information on, and express disapproval of, workplace bullying in anti-harassment training sessions; and 4) Find out if bullying behavior is prevalent. Monitor feedback from worker attitude surveys and employee exit interviews.

Bullying isn't just a playground issue. In an era of declining unionization, job insecurity, and the global profit squeeze, bullying has become a serious workplace problem, even though workplace bullies usually prefer memos, informal disciplinary meetings and grinding criticism to spitballs. Left unchecked, on-the-job abuse adversely affects both employers and employees. Current legal theories, though, are inadequate to address this recent phenomenon.

Drs. Gary and Ruth Namie, the two individuals most responsible for popularizing the term “workplace bullying” in the United States, define it as “the repeated, health-endangering mistreatment of a person (the target) by a cruel perpetrator (the bully).” (Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/def.html.) Bullying behavior can include not only oral abuse such as name calling, but also alienating or isolating an employee, harassing or intimidating an employee (possibly in front of co-workers, clients or customers), or providing an employee with unreasonable or impossible work assignments.

Recent surveys indicate that workplace bullying is pervasive, with 50% to 90% of respondents reporting some emotional abuse on the job. According to a leading expert on the topic, both men and women are bullies. Women constitute 58% of perpetrators, while men represent 42%. Though bullies may torment co-workers, 71% of them “outrank their targets. Most bullies are bosses.” (Gary Namie, “Workplace Bullying: Escalated Incivility,” Ivey Business Journal (Ontario, Canada), November/December 2003, pp. 1-6.)

Why It Matters

There is a growing body of research demonstrating the very harmful effects of workplace bullying on targets and employers alike. Psychological effects upon its victims include stress, depression, mood swings, loss of sleep, and feelings of shame, guilt, embarrassment, and low self-esteem. (Gary Namie, Ruth Namie, “Bullyproof Yourself At Work” (Work Doctor, 1999), p. 17.) High turnover, absenteeism, poor customer relations, and acts of sabotage and revenge are among the costs to employers of abusive behavior. (Emily S. Bassman, Abuse in the Workplace: Management Remedies and Bottom Line Impact (Quorum Books, 1992), p. 137.)

There is little recourse for victims of workplace bullying; no legislation exists specifically addressing this issue. Abused employees may allege violations of federal and state civil rights laws ' but only if the abuse is due to an individual's “protected class,” such as his or her race, gender, religion or age. Most workplace bullying, though, is “status blind.”

A Typical Case

A 1992 Washington State decision illustrates this principle. Darlene Adams was a retail sales clerk for Able Building Supply in Ephrata, WA. The store was managed by Tom Thomas, who was described by the court of appeals as “rude, boorish, thoroughly obnoxious and prone to outrageous temper tantrums.” According to Adams' lawsuit, Thomas repeatedly flew into rages on a number of occasions and routinely yelled at his employees. On one occasion, he shouldered Adams away from her computer and engaged in a shouting match with her, leaving her to flee in tears to the women's restroom.

Ultimately, Adams gave notice and resigned, claiming she was unable to tolerate Thomas' abuse. She filed suit against Able under the Washington Law Against Discrimination, alleging that she had been subjected to a demeaning, hostile, and threatening pattern of behavior. In response, the company argued that Thomas treated all the store employees the same and that Adams had no evidence that the harassment was directed at her because of her gender.

Noting that the civil rights statutes are not a “general civility code,” the court concluded that Adams' claim failed due to the fact that she had been unable to establish that the conduct occurred because of her sex. “It is not sufficient to show that the employee suffered embarrassment, humiliation, or mental anguish arising from non-discriminatory harassment. The dispositive question is whether Ms. Adams would have been subject to harassment if she had been a man.” Because the employer was able to demonstrate that its supervisor was equally abusive to all its employees, the court of appeals affirmed the dismissal of Adams' claims. ( Adams v. Able Building Supply, Inc. , 57 P.3d 280 (Wash. Ct. App. 2002).)

IIED: Does It Work?

Employees frequently claim Intentional Infliction of Emotional Distress (IIED) to seek relief against emotionally abusive treatment in the workplace. Section 46(1) of the Restatement (Second) of Torts, heavily relied upon by many courts for guidance in considering such claims, defines IIED as follows: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress … ” Furthermore, Comment d to the Restatement's IIED section states that “ [l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society” ' a very high standard.

Courts frequently reject workplace IIED claims, finding employers' behavior is not extreme or outrageous enough to meet the tort's elements. The following cases demonstrate the high bar courts have set for conduct to be considered “outrageous.” In Mizraie v. Smith Cogeneration, Inc. , 962 P.2d 678 (Okla. Ct. App. 1998), the appellate court affirmed a trial court's dismissal of an IIED claim. The plaintiff in this case alleged that his supervisor, among other things, yelled at him in front of other managers, called him at 3:00 a.m., and “browbeat [him] for hours,” required him to “needlessly cancel vacation plans,” refused to allow him to spend a day at the hospital with his wife after the birth of their son, intentionally called the plaintiff's wife by the plaintiff's former wife's name, and delivered the notice of termination 2 hours before the plaintiff's wedding. There was nothing “in this working milieu,” said the court, “that would elevate the recited facts to the 'outrageous' level.”

Plaintiffs are more likely to succeed under IIED claims based on allegations of severe status-based harassment or discrimination. For example, in Bryant v. Better Business Bureau of Maryland , 923 F. Supp. 720 (D. Md. 1996), a female membership coordinator demonstrated conduct sufficiently extreme and outrageous to warrant liability for IIED under Maryland law when the organization's president, against her will, fondled her breasts and put his hand down her blouse and up her skirt, once touching her crotch. The court opined that it is outrageous to “penetrate the perimeter of a woman's clothing and touch areas of the female anatomy which are generally considered off-limits to anyone other than a consensual sexual partner or a physician.”

Workplace bullying has also surfaced in the labor arbitration forum ' with positive results for the victims. In one case, a letter carrier in Wisconsin brought a grievance pursuant to an anti-violence policy in a collective bargaining agreement. The letter carrier claimed that, in response to a complaint by a postal customer, his supervisor approached him in anger, aggressively waving his arms and yelling. A witness testified that the supervisor repeatedly called the letter carrier a “liar,” and appeared “out of control.” The supervisor admitted to having used profanity toward other employees and losing his temper before on the workplace floor. He also received remedial supervisory training as a result of another employee complaint.

The U.S. Postal Service denied the grievance on the grounds that the supervisor's behavior did not rise to the level of a violation of the anti-violence policy because there were no direct threats of violence. Postal management also claimed that there was no intent on the supervisor's part to bully, harass, or intimidate the letter carrier. Finding a violation of the anti-violence policy, arbitrator Bernice L. Fields wrote that “[v]iolence in the workplace begins long before fists fly, or lethal weapons extinguish lives. Where resentment and aggression routinely displace cooperation and communication, violence has occurred. Such violence surfaces as threats, intimidation, harassment and sub-lethal assault … The (anti-violence policy) is intended to reach and to correct emotional violence as well as actual physical attacks.” (“Postal Service Supervisor and Manager Guilty of Abuse,” Workplace Bullying & Trauma Institute, www.bullyinginstitute.org.home/twd/bb/bbstudies/uspsarb.html.)

In another case, an arbitrator overturned the discharge of an employee for insubordination because the employee was provoked by the supervisor's bullying behavior. The supervisor screamed and yelled at the employee, “got in his face” (pointed his finger within 3 inches of the employee's nose) and jerked work away from the employee, throwing it on the floor. (Oklahoma Fixture Co. & Carpenters, Local 943, 01-02 ARB. (CCH) para. 3912 (2001) (Shieber, Arb.))

Pending Legislation

Several pieces of state legislation have been proposed in recent years to curb workplace bullying. The “Healthy Workplace” bill (AB 1582) was introduced in the California legislature in February 2003. The bill declares that California's social and economic well-being depends on healthy and productive employees and prohibits “abusive conduct” and “abusive work environments.” An abusive environment, the legislation says, “is a workplace where an employee is subjected to abusive conduct that is so severe that is causes physical or psychological harm to the employee.” If an “unlawful employment practice” occurs in violation of the proposed law, a harassed employee would be able to sue and potentially to collect a payment of up to $25,000 for emotional distress. The bill, however, was withdrawn by its legislative author soon after its introduction and is dead for 2004. (“The State of California Anti-Bullying Bill Died in 2004,” Workplace Bullying & Trauma Institute, www. bullyinginstitute.org/home/calif.html.)

A similar measure, the “Abusive Work Environment Act” (HB 2467), was introduced in the Oklahoma legislature on Jan. 20, 2004. The law also provides for damages for emotional distress of $25,000. In addition, a Washington state legislator announced that she will introduce the “Healthy Workplace” Bill in 2005 to outlaw workplace bullying. (Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/advocacy/ walegis.html )

Legislation Abroad

Foreign countries have been more active than the U.S. in banning workplace bullying. In December 2002, Quebec Province's Labour Standards Act in Canada was overhauled to ban “psychological harassment” in the workplace. The term is defined as any “vexatious behavior in the form of repeated and hostile or unwanted conduct that affects an employee's psychological or physical integrity,” including unwanted attitudes, comments and gestures. Starting in June 2004, employees experiencing workplace bullying may begin to file complaints with the Quebec Labour Standards Commission. (Gary Namie, “Workplace Bullying: Escalated Incivility,” supra, p. 6.)

The UK has passed a “Protection From Harassment Act 1997.” A person guilty of harassment (defined as “alarming the person or causing the person distress”) is liable to imprisonment for up to 6 months or a fine or both. In 1993, Sweden promulgated a “Victimization At Work Ordinance.” The measure states “[t]he employer should plan and organize work so as to prevent victimization.” Furthermore, “the employer shall make clear that victimization cannot be accepted.” (“Partial Review of International Laws and Codes Relating to Bullying, Other than Discrimination,” Workplace Bullying & Trauma Institute, www.bullyinginstitute.org/home/twd/bb/bbstudies/ intlaw.html intlaw.html.)

Conclusion

The business case for strict anti-bullying programs is compelling. Potential benefits include a more peaceful and productive workplace, less time lost to sick leave, higher staff retention, and a lower risk of legal action. Accordingly, prudent employers should take the following steps to stop abusive workplace behavior: 1) Develop a written policy on workplace bullying and widely distribute and display it.

This can be incorporated into an existing anti-harassment statement; 2) Encourage workers to come forward if they are being bullied; 3) Include information on, and express disapproval of, workplace bullying in anti-harassment training sessions; and 4) Find out if bullying behavior is prevalent. Monitor feedback from worker attitude surveys and employee exit interviews.