The Office Bully: Are You Liable?

In NEA-Alaska, three female employees sued their employer, a labor union representing teachers and other public school employees in Alaska. The plaintiffs claimed that the Union's interim director, Thomas Harvey, engaged in numerous episodes of unprovoked, hostile verbal and physical conduct toward them, and other female employees.

Specifically, the plaintiffs charged that Harvey regularly screamed at and
tormented them for no apparent reason, and often punctuated his yelling with physically intimidating behavior. A plaintiff testified that Harvey often stood behind her and watched her work for extended periods, conduct that made her anxious and wrecked her concentration. Another recounted an incident where Harvey accused her of taking breaks with others to discuss him behind his back and then 'lung[ed] across the table' at her while shaking his fist. One time Harvey came up behind one of the women while she was consoling a co-worker, grabbed her shoulders and yelled, 'Get back to your office!' Harvey's menacing conduct so intimidated one plaintiff that she followed her therapist's advice and filed a police report against him. Another omitted overtime from her timesheets to avoid incurring his wrath. In one particularly egregious incident, Harvey berated a plaintiff who extended an approved leave to care for her dying sister by one day because her sister's condition had worsened. All three women testified that Harvey's behavior put them in a constant state of panic, and that they found his mere presence physically threatening.

By contrast, although Harvey was hardly a model manager with his male subordinates, he undisputedly abused them less. Harvey routinely permitted several male employees to take days off from work to hunt or fish, without criticism. A male executive testified that Harvey yelled at him on a 'couple' of occasions, but that after the two men discussed the situation, Harvey's yelling ceased. Moreover, this same executive confirmed that Harvey acted more aggressively toward the women in the office. According to male and female employees alike, whereas Harvey yelled and shook his fist at the women, he would 'banter' with the men in the tone of 'we're all guys here.'

At summary judgment, the Union argued that Harvey's conduct did not amount to gender discrimination because it was not sexually charged insofar as he mistreated men and women alike. The District Court granted summary judgment on the ground that Title VII's language prohibiting different treatment 'because of sex' required behavior 'of a sexual nature' or motivated by 'sexual animus.' Applying this test, the District Court determined that while Harvey was rude and overbearing, the plaintiffs offered no evidence that his behavior toward the women was motivated by lust or sexual animus. The Ninth Circuit reversed, holding that even though Harvey's conduct was not overtly sexual in nature or marked by gender stereotypes, it nonetheless created an intimidating, hostile environment for the women to suffer 'subjective effects' far beyond that which the male employees experienced.

The Ninth Circuit's Two-Prong Test

Is the harassment 'qualitatively' and 'quantitatively' different for women than men? The Ninth Circuit framed the issue according to whether Harvey's abusive, but non-gender-specific, treatment of women differed sufficiently in 'quality' and 'quantity' from the way he treated men. According to the Ninth Circuit, even in instances where the conduct is not of a 'sexual' nature, it is appropriate to consider the 'subjective effects' the behavior has on women, along with any differences in the 'quality' and 'quantity' of the harasser's treatment of men and women, The court rejected the Union's argument that Harvey did not intend to adversely affect women, noting that 'there is no logical reason why comfort in bullying women is any less 'because of sex' than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.'

The EEOC's Litigation Settlement Report dated May 6, 2006 announced that, following remand, the parties in NEA-Alaska entered into a three-year consent decree under which the Union agreed to pay the plaintiffs $750,000 in damages and review its employment policies, provide effective means to address discrimination complaints and educate its employees about their rights and responsibilities in the workplace. During the period the consent decree is in effect, NEA-Alaska must also report annually to the EEOC regarding all employee discrimination complaints and any corrective action.

Healthy Workplace Legislation

It is unclear whether other circuits will adopt the Ninth Circuit's expansive view permitting facially neutral, albeit obnoxious, conduct to constitute a gender-based hostile work environment based on its disparate impact on female employees, but Title VII is not the only means by which employees have attempted to obtain compensation for abusive conduct. Employees frequently file workers' compensation and disability claims for stress-related injuries. On another front, several states have introduced anti-bullying measures designed to prevent any and all abusive behavior in the workplace without a showing that the offending conduct is based, or has a disparate impact, on a protected basis.

California led the charge with AB 1582, the first 'healthy workplace' bill, in 2003. California's version, which died in committee, defined an 'abusive work environment' as a 'workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm.' The bill broadly defined 'abusive conduct' as 'conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests.' It also created an affirmative defense for employers with preventive policies in place.

Since then, ten more states have introduced similar forms of anti-bullying legislation over the last four years. None has passed. The New Jersey, Oklahoma and Montana state legislatures are currently actively considering legislation to curb bullying. Similar iterations of healthy workplace acts recently failed
in New York, Kansas, Missouri, Massachusetts, Oregon, Washington and Hawaii. Every bill sponsor cites the deleterious effects bullying has on employee health and to employers in increased turnover, low morale, absenteeism and increased workers' compensation and medical claims.

Indiana Court of Appeals Strikes Down 'Bullying' Verdict

Employees have also attempted to seek redress for abusive conduct by pleading intentional infliction of emotional distress, with limited success. In December 2006, the Indiana Court of Appeals reversed a jury verdict against a surgeon who subjected a subordinate to workplace abuse sufficient to constitute intentional infliction of emotional distress. Raess v. Doescher, 858 N.E.2d 119 (2006). At trial, the plaintiff testified that the heart surgeon routinely mistreated and screamed at him and, in one instance during an angry exchange, charged at him in such a manner than he feared physical harm. The plaintiff offered expert testimony from social psychologist Gary Namie, who founded the Workplace Bullying Institute (www.bullyinginstitute.org), an organization that advocates for anti-bullying legislation and employer policies. Dr. Namie opined to the jury that the surgeon was a 'workplace abuser ' a person who subjected [the plaintiff] to an abusive work environment' and that this conduct amounted to 'workplace bullying.' The plaintiff's counsel continually labeled the surgeon a 'bully' throughout the trial and called on the jury to put a stop to workplace abuse. The jury apparently got the message and awarded the plaintiff $325,000 in damages.

The Court of Appeal found that the trial court committed reversible error in refusing to instruct the jury that 'workplace bullying' is not a cause of action and that it must base its verdict on the elements of the alleged claim, not on whether the defendant was a bully. In so doing, the court pointed out that the undue prejudice Dr. Namie's 'bullying' testimony caused far outweighed its limited probative value.

How to Protect Yourself

Unfortunately, the emerging focus on bullying provides employers with no clear guidelines regarding their legal obligations to protect employees from abusive conduct committed by supervisors or co-workers. These proposed statutes understandably frighten employers who envision spending countless hours quibbling over whether a manager's raised voice regarding a missed deadline constitutes bullying and disgruntled employees who will cripple their employer's business litigating petty office disputes and negative performance evaluations. Conversely, there is no question that an abusive work environment can create serious and expensive problems for an employer, such as increased absenteeism, turn-over, low morale, workers' compensation claims and decreased productivity.

Therefore, although Title VII may not require employers or employees to exercise courtesy or respect in the workplace, it makes good business sense to train employees that they are expected to treat everyone with which they work with civility and professionalism. Moreover, NEA-Alaska establishes that non-gender-related behavior can form the basis for a hostile work environment claim where it has a qualitatively and/or quantitatively different impact of a particular gender. Because this ruling can easily extend to other protected classes, such as race or religion, it is prudent for employers to examine all anti-harassment polices to ensure that they are broad enough to cover all bullying.

To do so, employers should establish general anti-harassment or respectful workplace policies that set forth their commitment to maintaining an environment that encourages respect for the dignity of each employee and prohibit conduct that is intimidating or of a personally offensive nature. Employers should resist restricting the types of complaints employees can raise for fear that overbroad policies will result in more complaints. It is usually more beneficial for an employer to keep apprised of office dynamics and temperament. Employee surveys and 360-degree reviews, which allow rank and file workers to assess management performance, may also serve as useful tools to gather information regarding office morale and identify inappropriate management techniques or employee misconduct.

To be effective, an anti-harassment policy must identify a readily accessible complaint mechanism for all employees to report offensive behavior. It should provide alternative reporting procedures, such as a Human Resources representative, ombudsman or Employee Hotline in case the complaining employee's supervisor or the supervisor's supervisor is the alleged harasser.

Proper policies will only work if the employer receives, and promptly responds to, all employee complaints, even those that appear baseless. To this end, employers must not dismiss an employee's complaint about abusive behavior simply because it does not appear to involve a protected characteristic, such as gender or race. Instead, they should investigate whether the alleged offender heaps more abuse on employees in a protected class than others who are not. If the employer's investigation reveals that the offending employee is nothing more than an 'equal opportunity jerk,' remedial action may still be warranted. Bullies can be expensive and disruptive to the workplace ' even if they are profitable or high level employees ' and employers may find that retraining or terminating abusive employees actually increases profitability by improving morale, maintaining a stable workforce and reducing medical costs associated with stress-related disability absences and claims.

Stacey McKee Knight, a member of this newsletter's Board of Editors, is a partner with Katten Muchin Rosenman LLP. She can be reached at [email protected]. Jeremy J.F. Gray, also a partner with Katten Muchin Rosenman LLP, can be reached at [email protected]. The authors represent management in all areas of labor and employment law, and practice out of the firm's Los Angeles office.

Title VII and similar state statutes penalize employees who harass others based on their status in a protected class. But there are currently no federal or state laws outlawing simple 'bullying.' However, the absence of these statutes does not permit employers to ignore with impunity the 'equal opportunity jerk' in their offices simply because the conduct, while obnoxious, is directed at everyone. In EEOC v. National Education Association ' Alaska ('NEA-Alaska'), 422 F. 2d 840 (9th Cir. 2005), the Ninth Circuit extended Title VII's reach to prohibit a supervisor's unquestionably abusive, but non-gender-related conduct, because the behavior impacted female employees more harshly than their male counterparts. Even before NEA-Alaska, there existed a grassroots movement to outlaw workplace bullying.

Most sensible employers recognize that yelling, screaming and generally abusive behavior is neither an effective nor a preferred management tool. To the contrary, it serves an employer's best interests to have a harmonious work environment because it prevents absenteeism, turn over, low morale and stress-related claims, all of which impact the bottom line. Nevertheless, it seems impractical to hold employers legally accountable for instituting civility in the workplace. Given that many people spend much of their waking hours at work, conflicts and flare-ups inevitably arise. The unfortunate reality is that some managers never outgrow childhood bullying, and their primitive conflict resolution skills stay with them as they move from the sandbox into the conference room. While it may constitute sound business practice to eliminate workplace abuse, such behavior is not susceptible to clear definitions and guidelines, and thus not suitable for government regulation.

The Ninth Circuit's Decision

In NEA-Alaska, three female employees sued their employer, a labor union representing teachers and other public school employees in Alaska. The plaintiffs claimed that the Union's interim director, Thomas Harvey, engaged in numerous episodes of unprovoked, hostile verbal and physical conduct toward them, and other female employees.

Specifically, the plaintiffs charged that Harvey regularly screamed at and
tormented them for no apparent reason, and often punctuated his yelling with physically intimidating behavior. A plaintiff testified that Harvey often stood behind her and watched her work for extended periods, conduct that made her anxious and wrecked her concentration. Another recounted an incident where Harvey accused her of taking breaks with others to discuss him behind his back and then 'lung[ed] across the table' at her while shaking his fist. One time Harvey came up behind one of the women while she was consoling a co-worker, grabbed her shoulders and yelled, 'Get back to your office!' Harvey's menacing conduct so intimidated one plaintiff that she followed her therapist's advice and filed a police report against him. Another omitted overtime from her timesheets to avoid incurring his wrath. In one particularly egregious incident, Harvey berated a plaintiff who extended an approved leave to care for her dying sister by one day because her sister's condition had worsened. All three women testified that Harvey's behavior put them in a constant state of panic, and that they found his mere presence physically threatening.

By contrast, although Harvey was hardly a model manager with his male subordinates, he undisputedly abused them less. Harvey routinely permitted several male employees to take days off from work to hunt or fish, without criticism. A male executive testified that Harvey yelled at him on a 'couple' of occasions, but that after the two men discussed the situation, Harvey's yelling ceased. Moreover, this same executive confirmed that Harvey acted more aggressively toward the women in the office. According to male and female employees alike, whereas Harvey yelled and shook his fist at the women, he would 'banter' with the men in the tone of 'we're all guys here.'

At summary judgment, the Union argued that Harvey's conduct did not amount to gender discrimination because it was not sexually charged insofar as he mistreated men and women alike. The District Court granted summary judgment on the ground that Title VII's language prohibiting different treatment 'because of sex' required behavior 'of a sexual nature' or motivated by 'sexual animus.' Applying this test, the District Court determined that while Harvey was rude and overbearing, the plaintiffs offered no evidence that his behavior toward the women was motivated by lust or sexual animus. The Ninth Circuit reversed, holding that even though Harvey's conduct was not overtly sexual in nature or marked by gender stereotypes, it nonetheless created an intimidating, hostile environment for the women to suffer 'subjective effects' far beyond that which the male employees experienced.

The Ninth Circuit's Two-Prong Test

Is the harassment 'qualitatively' and 'quantitatively' different for women than men? The Ninth Circuit framed the issue according to whether Harvey's abusive, but non-gender-specific, treatment of women differed sufficiently in 'quality' and 'quantity' from the way he treated men. According to the Ninth Circuit, even in instances where the conduct is not of a 'sexual' nature, it is appropriate to consider the 'subjective effects' the behavior has on women, along with any differences in the 'quality' and 'quantity' of the harasser's treatment of men and women, The court rejected the Union's argument that Harvey did not intend to adversely affect women, noting that 'there is no logical reason why comfort in bullying women is any less 'because of sex' than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.'

The EEOC's Litigation Settlement Report dated May 6, 2006 announced that, following remand, the parties in NEA-Alaska entered into a three-year consent decree under which the Union agreed to pay the plaintiffs $750,000 in damages and review its employment policies, provide effective means to address discrimination complaints and educate its employees about their rights and responsibilities in the workplace. During the period the consent decree is in effect, NEA-Alaska must also report annually to the EEOC regarding all employee discrimination complaints and any corrective action.

Healthy Workplace Legislation

It is unclear whether other circuits will adopt the Ninth Circuit's expansive view permitting facially neutral, albeit obnoxious, conduct to constitute a gender-based hostile work environment based on its disparate impact on female employees, but Title VII is not the only means by which employees have attempted to obtain compensation for abusive conduct. Employees frequently file workers' compensation and disability claims for stress-related injuries. On another front, several states have introduced anti-bullying measures designed to prevent any and all abusive behavior in the workplace without a showing that the offending conduct is based, or has a disparate impact, on a protected basis.

California led the charge with AB 1582, the first 'healthy workplace' bill, in 2003. California's version, which died in committee, defined an 'abusive work environment' as a 'workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm.' The bill broadly defined 'abusive conduct' as 'conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests.' It also created an affirmative defense for employers with preventive policies in place.

Since then, ten more states have introduced similar forms of anti-bullying legislation over the last four years. None has passed. The New Jersey, Oklahoma and Montana state legislatures are currently actively considering legislation to curb bullying. Similar iterations of healthy workplace acts recently failed
in New York, Kansas, Missouri, Massachusetts, Oregon, Washington and Hawaii. Every bill sponsor cites the deleterious effects bullying has on employee health and to employers in increased turnover, low morale, absenteeism and increased workers' compensation and medical claims.

Indiana Court of Appeals Strikes Down 'Bullying' Verdict

Employees have also attempted to seek redress for abusive conduct by pleading intentional infliction of emotional distress, with limited success. In December 2006, the Indiana Court of Appeals reversed a jury verdict against a surgeon who subjected a subordinate to workplace abuse sufficient to constitute intentional infliction of emotional distress. Raess v. Doescher , 858 N.E.2d 119 (2006). At trial, the plaintiff testified that the heart surgeon routinely mistreated and screamed at him and, in one instance during an angry exchange, charged at him in such a manner than he feared physical harm. The plaintiff offered expert testimony from social psychologist Gary Namie, who founded the Workplace Bullying Institute (www.bullyinginstitute.org), an organization that advocates for anti-bullying legislation and employer policies. Dr. Namie opined to the jury that the surgeon was a 'workplace abuser ' a person who subjected [the plaintiff] to an abusive work environment' and that this conduct amounted to 'workplace bullying.' The plaintiff's counsel continually labeled the surgeon a 'bully' throughout the trial and called on the jury to put a stop to workplace abuse. The jury apparently got the message and awarded the plaintiff $325,000 in damages.

The Court of Appeal found that the trial court committed reversible error in refusing to instruct the jury that 'workplace bullying' is not a cause of action and that it must base its verdict on the elements of the alleged claim, not on whether the defendant was a bully. In so doing, the court pointed out that the undue prejudice Dr. Namie's 'bullying' testimony caused far outweighed its limited probative value.

How to Protect Yourself

Unfortunately, the emerging focus on bullying provides employers with no clear guidelines regarding their legal obligations to protect employees from abusive conduct committed by supervisors or co-workers. These proposed statutes understandably frighten employers who envision spending countless hours quibbling over whether a manager's raised voice regarding a missed deadline constitutes bullying and disgruntled employees who will cripple their employer's business litigating petty office disputes and negative performance evaluations. Conversely, there is no question that an abusive work environment can create serious and expensive problems for an employer, such as increased absenteeism, turn-over, low morale, workers' compensation claims and decreased productivity.

Therefore, although Title VII may not require employers or employees to exercise courtesy or respect in the workplace, it makes good business sense to train employees that they are expected to treat everyone with which they work with civility and professionalism. Moreover, NEA-Alaska establishes that non-gender-related behavior can form the basis for a hostile work environment claim where it has a qualitatively and/or quantitatively different impact of a particular gender. Because this ruling can easily extend to other protected classes, such as race or religion, it is prudent for employers to examine all anti-harassment polices to ensure that they are broad enough to cover all bullying.

To do so, employers should establish general anti-harassment or respectful workplace policies that set forth their commitment to maintaining an environment that encourages respect for the dignity of each employee and prohibit conduct that is intimidating or of a personally offensive nature. Employers should resist restricting the types of complaints employees can raise for fear that overbroad policies will result in more complaints. It is usually more beneficial for an employer to keep apprised of office dynamics and temperament. Employee surveys and 360-degree reviews, which allow rank and file workers to assess management performance, may also serve as useful tools to gather information regarding office morale and identify inappropriate management techniques or employee misconduct.

To be effective, an anti-harassment policy must identify a readily accessible complaint mechanism for all employees to report offensive behavior. It should provide alternative reporting procedures, such as a Human Resources representative, ombudsman or Employee Hotline in case the complaining employee's supervisor or the supervisor's supervisor is the alleged harasser.

Proper policies will only work if the employer receives, and promptly responds to, all employee complaints, even those that appear baseless. To this end, employers must not dismiss an employee's complaint about abusive behavior simply because it does not appear to involve a protected characteristic, such as gender or race. Instead, they should investigate whether the alleged offender heaps more abuse on employees in a protected class than others who are not. If the employer's investigation reveals that the offending employee is nothing more than an 'equal opportunity jerk,' remedial action may still be warranted. Bullies can be expensive and disruptive to the workplace ' even if they are profitable or high level employees ' and employers may find that retraining or terminating abusive employees actually increases profitability by improving morale, maintaining a stable workforce and reducing medical costs associated with stress-related disability absences and claims.

Stacey McKee Knight, a member of this newsletter's Board of Editors, is a partner with Katten Muchin Rosenman LLP. She can be reached at [email protected]. Jeremy J.F. Gray, also a partner with Katten Muchin Rosenman LLP, can be reached at [email protected]. The authors represent management in all areas of labor and employment law, and practice out of the firm's Los Angeles office.