Office Bully Takes One on the Nose

Existing Legal Framework

Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII's reach is narrow. It prohibits employment discrimination based on an individual's race, sex, color, religion, or national origin. It is well-settled that “Title VII does not prohibit all verbal or physical harassment in the workplace,” but rather only discrimination because of race, sex, color, religion or national origin. Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75 (1998). See also Marshall v. NYC Board of Elections, 322 Fed. Appx. 17, 18-19 (2nd Cir. 2009) (noting that plaintiff's “allegations that her supervisor displayed a violent temper, stood over her with clenched fists on several occasions, disparaged her educational background, and engaged in crass behavior are troubling. But Title VII is not a 'general civility code for the American workplace'; it prohibits only harassment that is discriminatory”); Bush v. Fordham University, 452 F.Supp.2d 394 (S.D.N.Y. 2006) (allegations of harassment included that co-worker altered plaintiff's timesheets, threatened to call security on her for no reason, and failed to give her phone messages did not amount to actionable harassment); Jowers v. Lakeside Family and Children's Services, 2005 U.S. Dist. LEXIS 30977 (S.D.N.Y. 2005) (“It is quite clear that Plaintiff did not enjoy the most cordial of relationships with either his co-worker or his supervisor. Such discord, however, is not a valid ground to assert a hostile workplace claim under Title VII ' Title VII is not designed to serve as a code of civility to govern workplace professionalism”). Therefore, even where the workplace bully creates an uncomfortable or even unbearable work environment for co-workers or subordinates, this will not violate Title VII unless such conduct is discriminatory.

Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying. In order to prove a claim for the intentional infliction of emotional distress a plaintiff must prove that the defendant acted intentionally or recklessly, the defendant's conduct was extreme and outrageous, and the conduct caused severe emotional distress. Restatement (Second) of Torts ' 46.

Courts have found that extreme or outrageous conduct is “'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 community”but does not extend to 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'” Porter v. Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS 20627, at 5-6 (N.D. Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional distress claim where employee claimed that he was falsely accused of fraud and bullied and intimidated during questioning about the alleged fraud) (citations omitted).

Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge. For example, in Aldridge v. Daikin America Inc., 2005 U.S. Dist. LEXIS 27389, at 14 (N. D. Al. Oct. 6, 2005), the court found that plaintiff's “work conditions were not so intolerable that a reasonable person would have resigned ' [Plaintiff] may have been under a closer watch than other ' employees. He also may have been the target of negative comments ' He was not, however, forced to resign from his job.”

A recent case from the Southern District of New York illustrates the current law's limited use in the bullying context. In Mendez v. Starwood Hotels & Resorts Worldwide Inc., 2010 U.S. Dist. LEXIS 107709 (S.D.N.Y. Sept. 30, 2010), the plaintiff alleged that his employer discriminated against him based on his national origin, race and disability. The plaintiff also alleged that his employer unlawfully retaliated against him for engaging in protected activity. At trial, the jury found for the employer on all of the discrimination claims, but found in favor of the plaintiff on the retaliation claim and awarded him $1 million in compensatory damages. The court, however, remitted the compensatory damages to $10,000, noting that there was no evidence that the plaintiff suffered any significant damage as a result of the employer's actions. The court opined that it was:

convinced that the jury felt sorry for the plaintiff ' as, indeed, the court felt sorry for the plaintiff. Mendez endured an abusive workplace and got very little sympathy or assistance from either his employer or his union ' . [A] non-discriminatory but uncivil workplace can certainly make a person miserable. The court is convinced that the jurors concluded that Mendez was miserable at work, having found some basis on which to hold [the employer] liable, awarded damages that were entirely out of proportion to any injury that was or could have been attributed to the retaliatory [action] ' but that were perfectly in proportion to the teasing and rudeness Mendez endured at the hands of his fellow workers and chefs ' .

Mendez, 2010 U.S. Dist. LEXIS at 63.

Although the discrimination laws shielded the employer from substantial liability in this case, had a law prohibiting workplace bullying existed, the employer would have been on the hook for the $1 million in damages as evidenced by the court's sympathetic words regarding the plaintiff's working conditions.

Importantly, despite the absence of a cause of action for workplace bullying, the jury in the Mendez case clearly tried to find a way to compensate the plaintiff for the bullying he endured. Likewise, in Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008), the Supreme Court of Indiana upheld a $325,000 jury verdict on an assault claim where the plaintiff alleged that “the defendant, angry at the plaintiff about reports to hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” 883 N.E.2d at 794. Although the defendant prevailed at trial with respect to the plaintiff's claim for the intentional infliction of emotional distress, the court opined in dicta that workplace bullying could be a form of intentional infliction of emotional distress. Id. at 799.

Legislation Campaign

Notably, the jury in the Raess case heard expert testimony on workplace bullying from Gary Namie, the co-founder of the Workplace Bullying Institute (WBI), a nonprofit organization dedicated to the eradication of workplace bullying. The WBI's Legislative Campaign division focuses on enacting anti-bullying legislation state-by-state. The WBI recruits state coordinators to introduce the Healthy Workplace Bill (HWB), drafted by Suffolk University Professor of Law David Yamada, to their local lawmakers. Thus, the campaign to pass an anti-bullying statute begins in each state with the same HWB language, although local lawmakers regularly make changes to the HWB as it is introduced and works its way through the legislative process. (One notable exception to this occurred in Nevada. The bill introduced in Nevada in 2009 attempted to expand the state's civil rights code to include abusive conduct as an illegal employment practice.)

The HWB provides legal redress for employees who are subjected to an abusive work environment, by allowing employees to sue both their employer and the alleged bully for monetary damages. The WBI contends that the bill is employer-friendly because it sets a high standard for misconduct, requires proof of harm by a licensed health professional in order for an individual to collect damages, and protects employers with internal correction and prevention mechanisms from liability.

In 2003, California became the first state to introduce some form of the HWB. Subsequently, anti-workplace bullying legislation has been introduced in 16 other states. (The states are Connecticut, Hawaii, Illinois, Kansas, Massachusetts, Missouri, Montana, Nevada, New Jersey, New York, Oklahoma, Oregon, Utah, Vermont, Washington and Wisconsin.) In 2010, the New York State Senate passed the bill. (The Illinois Senate passed a bill that would cover only public sector employees.) However, the New York Assembly Labor Committee stalled the passage of this ground breaking legislation when it voted to hold the bill, rather than vote on it.

The New York bill, A 5414B/S 1823-B, establishes a civil cause of action for employees who are subjected to an abusive work environment. The bill defines an abusive work environment as “a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee, and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such employer after receiving notice thereof, fails to eliminate the abusive conduct.”

Abusive conduct is defined as “conduct, with malice, taken against an employee by an employer or another employee in the workplace, that a reasonable person would find to be hostile, offensive and unrelated to the employer's legitimate business interests.” The severity, nature and frequency of the conduct should be considered in determining liability. The bill gives the following examples of abusive conduct:

• Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;
• Verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; and
• The gratuitous sabotage or undermining of an employee's work performance.

Factors from which malice can be inferred include “outward expressions of hostility, harmful conduct inconsistent with an employer's legitimate business interests, a continuation of harmful and illegitimate conduct after a complainant requests that it cease or displays outward signs of emotion or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological or physical vulnerability.”

The bill provides employers with an affirmative defense when they “exercised reasonable care to prevent and promptly correct the abusive conduct which is the basis of such cause of action and the plaintiff unreasonably failed to take advantage of the appropriate preventive or corrective opportunities provided.”

The affirmative defense is not available when the abusive conduct “culminates in a negative employment decision with regard to the plaintiff.” Further, employers are afforded
the affirmative defense that “it made a negative mployment decision with regard to the plaintiff which is consistent with such employer's legitimate business interests.” The bill also provides employees with a cause of action for retaliation.

Remedies for an employer found liable include injunctive relief, reinstatement, removal of the offending party from the plaintiff's work environment, reimbursement for lost wages, medical expenses, compensation for emotional distress, punitive damages and attorney's fees. Under the New York bill, an employer found to have caused or maintained an abusive work environment that did not result in a negative employment decision cannot be held liable for punitive damages and damages for emotional distress will be capped at $25,000.

On the Cusp

It appears, therefore, that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute, others will shortly follow. The Mendez case, discussed above, should serve as a cautionary tale to employers about the potential for huge damage awards should such legislation be passed. In the interim, employers are faced with significant uncertainty with respect to how to deal with workplace bullying. If employers become proactive and take immediate steps to prevent workplace bullying, they will be better prepared to defend against a cause of action for workplace bullying.

Steps Employers Can Take

There are several steps that an employer can take to address workplace bullying. First, most employers' harassment and discrimination policies do not cover workplace bullying. Such policies can be revised to prohibit harassment that is based on factors other than those protected by federal, state and local discrimination laws. Codes of conduct and disciplinary policies should likewise be revised. Employers can use the examples of abusive conduct set forth in the New York bill, and other proposed legislation, as a guide for appropriate additions to these policies.

Once these policies are revised, they should be circulated to all employees. Furthermore, employers should take seriously any complaint by an employee who alleges that he or she is the victim of workplace bullying. Such complaints should be investigated promptly and fully in the same manner as other harassment complaints. Employers also should consider providing management training to supervisory employees in order to cut down on complaints of bullying.

Finally, employers should have a zero tolerance policy for workplace bullying. There is no denying that most workplaces will have employees with different management styles and personalities, and an ordinary dose of tension, stress and conflict. However, when conduct “crosses the line” and rises to the level of bullying, supervisors or other employees who engage in bullying should immediately be disciplined. Employers should seek the assistance of counsel in revising these policies and addressing any incidents of bullying, as well as to keep abreast of the developing legislation and jurisprudence on workplace bullying. By taking proactive action, employers can minimize the impact of the workplace bullying legislation that is bound to come to light in the near future, and in the meantime, maintain a safer and more productive workplace.

Jason Habinsky is counsel and Christine M. Fitzgerald is an associate at Hughes Hubbard & Reed. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

For years, the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim's status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year, New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”

Employers, however, should be wary of such legislation. Anti-bullying legislation would allow employees having nothing more than ordinary disputes and personality conflicts with their supervisors and co-workers to threaten their employers with litigation. Surely some of these disputes would end up in court, even though they would not rise to the level of actionable bullying. Moreover, it is hard to conceive how an anti-bullying statute could avoid being vague and overbroad when it comes to defining what sort of behavior is unlawful.

Existing Legal Framework

Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII's reach is narrow. It prohibits employment discrimination based on an individual's race, sex, color, religion, or national origin. It is well-settled that “Title VII does not prohibit all verbal or physical harassment in the workplace,” but rather only discrimination because of race, sex, color, religion or national origin. Oncale v. Sundowner Offshore Services Inc. , 523 U.S. 75 (1998). See also Marshall v. NYC Board of Elections , 322 Fed. Appx. 17, 18-19 (2nd Cir. 2009) (noting that plaintiff's “allegations that her supervisor displayed a violent temper, stood over her with clenched fists on several occasions, disparaged her educational background, and engaged in crass behavior are troubling. But Title VII is not a 'general civility code for the American workplace'; it prohibits only harassment that is discriminatory”); Bush v. Fordham University , 452 F.Supp.2d 394 (S.D.N.Y. 2006) (allegations of harassment included that co-worker altered plaintiff's timesheets, threatened to call security on her for no reason, and failed to give her phone messages did not amount to actionable harassment); Jowers v. Lakeside Family and Children's Services, 2005 U.S. Dist. LEXIS 30977 (S.D.N.Y. 2005) (“It is quite clear that Plaintiff did not enjoy the most cordial of relationships with either his co-worker or his supervisor. Such discord, however, is not a valid ground to assert a hostile workplace claim under Title VII ' Title VII is not designed to serve as a code of civility to govern workplace professionalism”). Therefore, even where the workplace bully creates an uncomfortable or even unbearable work environment for co-workers or subordinates, this will not violate Title VII unless such conduct is discriminatory.

Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying. In order to prove a claim for the intentional infliction of emotional distress a plaintiff must prove that the defendant acted intentionally or recklessly, the defendant's conduct was extreme and outrageous, and the conduct caused severe emotional distress. Restatement (Second) of Torts ' 46.

Courts have found that extreme or outrageous conduct is “'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 community”but does not extend to 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'” Porter v. Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS 20627, at 5-6 (N.D. Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional distress claim where employee claimed that he was falsely accused of fraud and bullied and intimidated during questioning about the alleged fraud) (citations omitted).

Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge. For example, in Aldridge v. Daikin America Inc., 2005 U.S. Dist. LEXIS 27389, at 14 (N. D. Al. Oct. 6, 2005), the court found that plaintiff's “work conditions were not so intolerable that a reasonable person would have resigned ' [Plaintiff] may have been under a closer watch than other ' employees. He also may have been the target of negative comments ' He was not, however, forced to resign from his job.”

A recent case from the Southern District of New York illustrates the current law's limited use in the bullying context. In Mendez v. Starwood Hotels & Resorts Worldwide Inc., 2010 U.S. Dist. LEXIS 107709 (S.D.N.Y. Sept. 30, 2010), the plaintiff alleged that his employer discriminated against him based on his national origin, race and disability. The plaintiff also alleged that his employer unlawfully retaliated against him for engaging in protected activity. At trial, the jury found for the employer on all of the discrimination claims, but found in favor of the plaintiff on the retaliation claim and awarded him $1 million in compensatory damages. The court, however, remitted the compensatory damages to $10,000, noting that there was no evidence that the plaintiff suffered any significant damage as a result of the employer's actions. The court opined that it was:

convinced that the jury felt sorry for the plaintiff ' as, indeed, the court felt sorry for the plaintiff. Mendez endured an abusive workplace and got very little sympathy or assistance from either his employer or his union ' . [A] non-discriminatory but uncivil workplace can certainly make a person miserable. The court is convinced that the jurors concluded that Mendez was miserable at work, having found some basis on which to hold [the employer] liable, awarded damages that were entirely out of proportion to any injury that was or could have been attributed to the retaliatory [action] ' but that were perfectly in proportion to the teasing and rudeness Mendez endured at the hands of his fellow workers and chefs ' .

Mendez, 2010 U.S. Dist. LEXIS at 63.

Although the discrimination laws shielded the employer from substantial liability in this case, had a law prohibiting workplace bullying existed, the employer would have been on the hook for the $1 million in damages as evidenced by the court's sympathetic words regarding the plaintiff's working conditions.

Importantly, despite the absence of a cause of action for workplace bullying, the jury in the Mendez case clearly tried to find a way to compensate the plaintiff for the bullying he endured. Likewise, in Raess v. Doescher , 883 N.E.2d 790 (Ind. 2008), the Supreme Court of Indiana upheld a $325,000 jury verdict on an assault claim where the plaintiff alleged that “the defendant, angry at the plaintiff about reports to hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” 883 N.E.2d at 794. Although the defendant prevailed at trial with respect to the plaintiff's claim for the intentional infliction of emotional distress, the court opined in dicta that workplace bullying could be a form of intentional infliction of emotional distress. Id. at 799.

Legislation Campaign

Notably, the jury in the Raess case heard expert testimony on workplace bullying from Gary Namie, the co-founder of the Workplace Bullying Institute (WBI), a nonprofit organization dedicated to the eradication of workplace bullying. The WBI's Legislative Campaign division focuses on enacting anti-bullying legislation state-by-state. The WBI recruits state coordinators to introduce the Healthy Workplace Bill (HWB), drafted by Suffolk University Professor of Law David Yamada, to their local lawmakers. Thus, the campaign to pass an anti-bullying statute begins in each state with the same HWB language, although local lawmakers regularly make changes to the HWB as it is introduced and works its way through the legislative process. (One notable exception to this occurred in Nevada. The bill introduced in Nevada in 2009 attempted to expand the state's civil rights code to include abusive conduct as an illegal employment practice.)

The HWB provides legal redress for employees who are subjected to an abusive work environment, by allowing employees to sue both their employer and the alleged bully for monetary damages. The WBI contends that the bill is employer-friendly because it sets a high standard for misconduct, requires proof of harm by a licensed health professional in order for an individual to collect damages, and protects employers with internal correction and prevention mechanisms from liability.

In 2003, California became the first state to introduce some form of the HWB. Subsequently, anti-workplace bullying legislation has been introduced in 16 other states. (The states are Connecticut, Hawaii, Illinois, Kansas, Massachusetts, Missouri, Montana, Nevada, New Jersey, New York, Oklahoma, Oregon, Utah, Vermont, Washington and Wisconsin.) In 2010, the New York State Senate passed the bill. (The Illinois Senate passed a bill that would cover only public sector employees.) However, the New York Assembly Labor Committee stalled the passage of this ground breaking legislation when it voted to hold the bill, rather than vote on it.

The New York bill, A 5414B/S 1823-B, establishes a civil cause of action for employees who are subjected to an abusive work environment. The bill defines an abusive work environment as “a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee, and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such employer after receiving notice thereof, fails to eliminate the abusive conduct.”

Abusive conduct is defined as “conduct, with malice, taken against an employee by an employer or another employee in the workplace, that a reasonable person would find to be hostile, offensive and unrelated to the employer's legitimate business interests.” The severity, nature and frequency of the conduct should be considered in determining liability. The bill gives the following examples of abusive conduct:

• Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;
• Verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; and
• The gratuitous sabotage or undermining of an employee's work performance.

Factors from which malice can be inferred include “outward expressions of hostility, harmful conduct inconsistent with an employer's legitimate business interests, a continuation of harmful and illegitimate conduct after a complainant requests that it cease or displays outward signs of emotion or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological or physical vulnerability.”

The bill provides employers with an affirmative defense when they “exercised reasonable care to prevent and promptly correct the abusive conduct which is the basis of such cause of action and the plaintiff unreasonably failed to take advantage of the appropriate preventive or corrective opportunities provided.”

The affirmative defense is not available when the abusive conduct “culminates in a negative employment decision with regard to the plaintiff.” Further, employers are afforded
the affirmative defense that “it made a negative mployment decision with regard to the plaintiff which is consistent with such employer's legitimate business interests.” The bill also provides employees with a cause of action for retaliation.

Remedies for an employer found liable include injunctive relief, reinstatement, removal of the offending party from the plaintiff's work environment, reimbursement for lost wages, medical expenses, compensation for emotional distress, punitive damages and attorney's fees. Under the New York bill, an employer found to have caused or maintained an abusive work environment that did not result in a negative employment decision cannot be held liable for punitive damages and damages for emotional distress will be capped at $25,000.

On the Cusp

It appears, therefore, that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute, others will shortly follow. The Mendez case, discussed above, should serve as a cautionary tale to employers about the potential for huge damage awards should such legislation be passed. In the interim, employers are faced with significant uncertainty with respect to how to deal with workplace bullying. If employers become proactive and take immediate steps to prevent workplace bullying, they will be better prepared to defend against a cause of action for workplace bullying.

Steps Employers Can Take

There are several steps that an employer can take to address workplace bullying. First, most employers' harassment and discrimination policies do not cover workplace bullying. Such policies can be revised to prohibit harassment that is based on factors other than those protected by federal, state and local discrimination laws. Codes of conduct and disciplinary policies should likewise be revised. Employers can use the examples of abusive conduct set forth in the New York bill, and other proposed legislation, as a guide for appropriate additions to these policies.

Once these policies are revised, they should be circulated to all employees. Furthermore, employers should take seriously any complaint by an employee who alleges that he or she is the victim of workplace bullying. Such complaints should be investigated promptly and fully in the same manner as other harassment complaints. Employers also should consider providing management training to supervisory employees in order to cut down on complaints of bullying.

Finally, employers should have a zero tolerance policy for workplace bullying. There is no denying that most workplaces will have employees with different management styles and personalities, and an ordinary dose of tension, stress and conflict. However, when conduct “crosses the line” and rises to the level of bullying, supervisors or other employees who engage in bullying should immediately be disciplined. Employers should seek the assistance of counsel in revising these policies and addressing any incidents of bullying, as well as to keep abreast of the developing legislation and jurisprudence on workplace bullying. By taking proactive action, employers can minimize the impact of the workplace bullying legislation that is bound to come to light in the near future, and in the meantime, maintain a safer and more productive workplace.

Jason Habinsky is counsel and Christine M. Fitzgerald is an associate at Hughes Hubbard & Reed. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.