Workplace Bullying Laws and Litigation

Bullying by the Numbers

In 2014, the Workplace Bullying Institute commissioned a survey on workplace bullying. The results may be educational for employers who have not considered this issue before now. The survey revealed that approximately one in four of the 1,000 polled employees have been the victim of bullying in the workplace. This translates to 37 million employees nationwide. So-called “bosses” account for 56% of the primary perpetrators; however, a defining feature of workplace bullying is a “mobbing” phenomenon where multiple people join in the bullying, which may include employees who are considered peers. Because bullies typically outrank their targets, victimized employees often feel powerless to confront their tormentor about his or her conduct.

The victims of bullying are usually members of a protected class. Hispanics, African Americans, and Asians are bullied more often than Caucasians. Women are bullied more than men, regardless of whether the perpetrator is a man or a woman. Therefore, many victims of bullying may seek legal redress under existing anti-discrimination laws.

Sadly, the survey suggests that most employers are not prepared to effectively deal with a bullying complaint, thereby implicitly condoning and reinforcing bullying behaviors. The most common reaction of employers is to minimize or ignore the problem by discounting its seriousness. They often rationalize the behavior as an innocent or routine way of doing business, or deny the complaint and refuse to investigate the allegations. These reactions accounted for 72% of the responses to the survey. A much smaller percentage of affected employees, 28%, responded that the employer acknowledged, condemned or eliminated the abusive conduct.

If management does not intervene, the survey suggests that coworkers will not fill the void. The most common response of coworkers to bullying was to do nothing. The second most common response was to privately aid the target of bullying. Publicly aiding the target, or attempting to intervene, accounted for only 29% of coworker responses.

In response to the question, “What stopped the abusive conduct?” 61% of the respondents answered that the target lost his or her job. Most of the time, the respondent voluntary quit in order to escape more mistreatment or because working conditions further deteriorated.

What Is Bullying?

Employers struggle to differentiate bullying from simple differences of opinion or personality, or legitimate discipline and criticism of an employee. There is no bright-line rule for what constitutes bullying, so employers must use common sense and the limited guidance available to them. Many employers believe that such treatment is too subjective, and not subject to definition. However, similar arguments were overcome with respect to unlawful harassment based on discrimination. One source of guidance is new California legislation that requires additional training on bullying as part of the mandatory anti-sexual harassment training under the California Fair Employment and Housing Act (CFEHA).

CFEHA defines abusive conduct as malicious conduct of an employer or employee that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Under California law, malicious conduct is intended to cause injury or is carried on with a willful and conscious disregard of the rights or safety of others. Examples include verbal abuse, physical conduct that a reasonable person would find intimidating, or the gratuitous sabotage or undermining of a person's work performance.

Other conduct that may be abusive or bullying includes:

• Spreading rumors or hurtful gossip;
• Denying resources, opportunities, or promotions;
• Sending toxic e-mails coupled with aggressive posturing;
• Taking credit for the victim's work;
• Unfair treatment of the victim;
• Micromanaging and excessive monitoring;
• Excessive, impossible, or conflicting expectations and demands;
• Excluding the victim from important meetings;
• Criticizing unfairly and without basis;
• Throwing temper tantrums and shouting; and
• Relentless teasing.

California and Tennessee Lead the Way

As mentioned above, on Jan. 1, a new California law went into effect, which requires supervisors of eligible employers to receive training designed to prevent abusive conduct within the first six months of being a supervisor, and every two years thereafter. Eligible employers are those with 50 or more employees, even if less than that number actually work or are based in California. A supervisor is anyone who exercises independent judgment to direct other employees, or who has authority (or recommends when) to hire, transfer, suspend, lay off, recall, promote, discharge, award, assign, or discipline employees.

The new California abusive conduct training is part of the sexual harassment training that is already mandated by CFEHA: information and practical guidance on state and federal law prohibiting sexual harassment, including practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training must be provided by trainers or educators who are knowledgeable and who have expertise in the prevention of harassment, discrimination, and retaliation.

An employee will not be deemed a supervisor just because he or she attends the training. If a particular employee does not receive the training, that will not, in and of itself, result in the employer's liability. Conversely, the employer is not immunized from liability by simply complying with the training requirements.

While CFEHA lists examples of conduct that may be abusive, a single act will not constitute abusive conduct unless it is especially severe and egregious. It bears repeating that the new law does not create a new avenue for employees to sue their employers. However, eligible employers may face enforcement proceedings by the Fair Employment and Housing Commission.

Tennessee enacted legislation in May 2014, directing a state commission to develop a model workplace anti-bullying policy for use by public employers within the state by March, 2015.

The High Cost of Bullying

Bullying exacts a high cost on the individual victims, business, and society. The victims of bullying may suffer anxiety and emotional distress, which may lead to worker compensation or employment disability claims against employers. Businesses may suffer damage to their reputations, which will impact their ability to recruit, hire and retain employees. Bullying also results in unwanted turnover of skilled personnel, absenteeism, decreased productivity, diminished morale, and litigation.

Cases in Point

In October 2014, a Texas jury awarded $11 million to a plaintiff against Microsoft in a hostile workplace case. The plaintiff proved that he was retaliated against and bullied when he ended a romantic relationship with a female coworker, who later became his boss. The abusive conduct included false accusations of sexual harassment, expense account fraud, marginalization, and blocked promotions. The judge reduced the award to $2 million, which included compensatory damages, punitive damages, and legal fees.

In December 2012, two employees who worked for the New Hampshire Department of Health and Human Services filed suit alleging retaliation by their boss after they complained about her and her colleagues misusing taxpayer money by taking excessively long lunch breaks. After the employees made the complaint about the long lunches, their boss allegedly retaliated through bullying conduct. The employees were accused of insubordination and failure to perform their jobs. They received threatening e-mails, were ostracized, and were given unreasonable amounts of work to be completed by an impossible deadline. Both employees claim that they were wrongfully terminated as a result of their complaints. The case settled out of court.

Looking to the Future

It is likely that other states will follow the lead of California and Tennessee in enacting specific legislation to address bullying. Variations of the so-called Healthy Workplace Bill have been introduced by many states, including New York, Connecticut, Massachusetts, Florida, Oregon, New Jersey and Illinois. The Healthy Workplace Bill is a proposed model law that seeks to define abusive work environment, shields employers from liability if they have internal correction and prevention mechanisms, requires proof of harm to be established by licensed health or mental health professionals, and provides a private right of action. Each state may modify its terms through its own legislative process. Therefore, employers should monitor the dockets of their state legislatures in order to stay informed about the particular terms of the bills under consideration, and their status.

The movement toward anti-bullying legislation is not without its opponents. The U.S. Chamber of Commerce opposes such laws, stating that they would punish employers for employee acts that employers cannot anticipate. In short, any anti-bullying law would be inherently over-reaching. Other business groups also oppose anti-bullying laws, believing that they will spur frivolous lawsuits.

The Healthy Workplace Bill has yet to pass in any state with respect to private employers. In New Hampshire, the legislature upheld the Governor's veto of an anti-bullying bill. The bill would have defined abusive conduct and required state agencies to develop procedures for reporting and investigating bullying. The Governor opposed the bill because she believed that it would create unnecessary lawsuits.

Similarly, the Governor of Puerto Rico vetoed a bill that had been passed by the Territory's legislature. The bill did not have the support of Puerto Rico's Department of Labor nor the Department of Justice (DOJ) because, among other things, the definition of “workplace harassment” was vague.

Practical Recommendations

Employers are well-advised to take the following precautions in consultation with their legal counsel and human resources professional:

• Establish work rules and policies, and revise employee manuals to address hostile workplace, bullying and mutual respect, including the mechanism for lodging a complaint and for resolution of the complaint.
• Educate and train managers and supervisors about the company's legal obligation to provide a work environment that is free from harassment and hostile behavior.
• Maintain accurate and complete records of disciplinary actions.
• Encourage all employees to treat each other with mutual respect.
• Take complaints seriously and address situations before they escalate.
• Engage a neutral third party to resolve complaints of bullying or hostile work environment.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner at Posternak Blankstein & Lund LLP. Her practice includes business litigation, employment, and insurance coverage disputes. She may be reached at [email protected]. Laura Otenti is an associate in the litigation department at the firm. She may be reached at [email protected]. The authors wish to thank Clark Wheeler, Northeastern University School of Law, J.D. 2015, for his assistance with this article.

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In recent years, there has been growing awareness about the serious and sometimes tragic effects of bullying. It is a growing concern on social media, in schools, and at work. Consequently, 26 states have considered adopting laws to address what some have called a “silent epidemic” in the workplace. While no state, or the federal government, has adopted laws explicitly outlawing bullying in the private sector, employers are well advised to proactively take steps to prevent workplace bullying.

In the States

As of Jan. 1, 2015, California will require supervisory employees to receive training about abusive conduct. Tennessee anti-bullying policies for public employers will go into effect in March. Other states will likely follow California's and Tennessee's lead by augmenting existing laws or passing new ones to address bullying. Even if there is no specific law about bullying in your state, employers may still be liable under existing hostile workplace, harassment, or discrimination laws. Independent of any legal obligation to do so, employers should endeavor to eliminate bullying in the workplace because of the negative impact it has on business. Bullying leads to exposure to claims and liability, decreased productivity, diminished morale, absenteeism and unwanted turnover of skilled employees.

Bullying by the Numbers

In 2014, the Workplace Bullying Institute commissioned a survey on workplace bullying. The results may be educational for employers who have not considered this issue before now. The survey revealed that approximately one in four of the 1,000 polled employees have been the victim of bullying in the workplace. This translates to 37 million employees nationwide. So-called “bosses” account for 56% of the primary perpetrators; however, a defining feature of workplace bullying is a “mobbing” phenomenon where multiple people join in the bullying, which may include employees who are considered peers. Because bullies typically outrank their targets, victimized employees often feel powerless to confront their tormentor about his or her conduct.

The victims of bullying are usually members of a protected class. Hispanics, African Americans, and Asians are bullied more often than Caucasians. Women are bullied more than men, regardless of whether the perpetrator is a man or a woman. Therefore, many victims of bullying may seek legal redress under existing anti-discrimination laws.

Sadly, the survey suggests that most employers are not prepared to effectively deal with a bullying complaint, thereby implicitly condoning and reinforcing bullying behaviors. The most common reaction of employers is to minimize or ignore the problem by discounting its seriousness. They often rationalize the behavior as an innocent or routine way of doing business, or deny the complaint and refuse to investigate the allegations. These reactions accounted for 72% of the responses to the survey. A much smaller percentage of affected employees, 28%, responded that the employer acknowledged, condemned or eliminated the abusive conduct.

If management does not intervene, the survey suggests that coworkers will not fill the void. The most common response of coworkers to bullying was to do nothing. The second most common response was to privately aid the target of bullying. Publicly aiding the target, or attempting to intervene, accounted for only 29% of coworker responses.

In response to the question, “What stopped the abusive conduct?” 61% of the respondents answered that the target lost his or her job. Most of the time, the respondent voluntary quit in order to escape more mistreatment or because working conditions further deteriorated.

What Is Bullying?

Employers struggle to differentiate bullying from simple differences of opinion or personality, or legitimate discipline and criticism of an employee. There is no bright-line rule for what constitutes bullying, so employers must use common sense and the limited guidance available to them. Many employers believe that such treatment is too subjective, and not subject to definition. However, similar arguments were overcome with respect to unlawful harassment based on discrimination. One source of guidance is new California legislation that requires additional training on bullying as part of the mandatory anti-sexual harassment training under the California Fair Employment and Housing Act (CFEHA).

CFEHA defines abusive conduct as malicious conduct of an employer or employee that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Under California law, malicious conduct is intended to cause injury or is carried on with a willful and conscious disregard of the rights or safety of others. Examples include verbal abuse, physical conduct that a reasonable person would find intimidating, or the gratuitous sabotage or undermining of a person's work performance.

Other conduct that may be abusive or bullying includes:

• Spreading rumors or hurtful gossip;
• Denying resources, opportunities, or promotions;
• Sending toxic e-mails coupled with aggressive posturing;
• Taking credit for the victim's work;
• Unfair treatment of the victim;
• Micromanaging and excessive monitoring;
• Excessive, impossible, or conflicting expectations and demands;
• Excluding the victim from important meetings;
• Criticizing unfairly and without basis;
• Throwing temper tantrums and shouting; and
• Relentless teasing.

California and Tennessee Lead the Way

As mentioned above, on Jan. 1, a new California law went into effect, which requires supervisors of eligible employers to receive training designed to prevent abusive conduct within the first six months of being a supervisor, and every two years thereafter. Eligible employers are those with 50 or more employees, even if less than that number actually work or are based in California. A supervisor is anyone who exercises independent judgment to direct other employees, or who has authority (or recommends when) to hire, transfer, suspend, lay off, recall, promote, discharge, award, assign, or discipline employees.

The new California abusive conduct training is part of the sexual harassment training that is already mandated by CFEHA: information and practical guidance on state and federal law prohibiting sexual harassment, including practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training must be provided by trainers or educators who are knowledgeable and who have expertise in the prevention of harassment, discrimination, and retaliation.

An employee will not be deemed a supervisor just because he or she attends the training. If a particular employee does not receive the training, that will not, in and of itself, result in the employer's liability. Conversely, the employer is not immunized from liability by simply complying with the training requirements.

While CFEHA lists examples of conduct that may be abusive, a single act will not constitute abusive conduct unless it is especially severe and egregious. It bears repeating that the new law does not create a new avenue for employees to sue their employers. However, eligible employers may face enforcement proceedings by the Fair Employment and Housing Commission.

Tennessee enacted legislation in May 2014, directing a state commission to develop a model workplace anti-bullying policy for use by public employers within the state by March, 2015.

The High Cost of Bullying

Bullying exacts a high cost on the individual victims, business, and society. The victims of bullying may suffer anxiety and emotional distress, which may lead to worker compensation or employment disability claims against employers. Businesses may suffer damage to their reputations, which will impact their ability to recruit, hire and retain employees. Bullying also results in unwanted turnover of skilled personnel, absenteeism, decreased productivity, diminished morale, and litigation.

Cases in Point

In October 2014, a Texas jury awarded $11 million to a plaintiff against Microsoft in a hostile workplace case. The plaintiff proved that he was retaliated against and bullied when he ended a romantic relationship with a female coworker, who later became his boss. The abusive conduct included false accusations of sexual harassment, expense account fraud, marginalization, and blocked promotions. The judge reduced the award to $2 million, which included compensatory damages, punitive damages, and legal fees.

In December 2012, two employees who worked for the New Hampshire Department of Health and Human Services filed suit alleging retaliation by their boss after they complained about her and her colleagues misusing taxpayer money by taking excessively long lunch breaks. After the employees made the complaint about the long lunches, their boss allegedly retaliated through bullying conduct. The employees were accused of insubordination and failure to perform their jobs. They received threatening e-mails, were ostracized, and were given unreasonable amounts of work to be completed by an impossible deadline. Both employees claim that they were wrongfully terminated as a result of their complaints. The case settled out of court.

Looking to the Future

It is likely that other states will follow the lead of California and Tennessee in enacting specific legislation to address bullying. Variations of the so-called Healthy Workplace Bill have been introduced by many states, including New York, Connecticut, Massachusetts, Florida, Oregon, New Jersey and Illinois. The Healthy Workplace Bill is a proposed model law that seeks to define abusive work environment, shields employers from liability if they have internal correction and prevention mechanisms, requires proof of harm to be established by licensed health or mental health professionals, and provides a private right of action. Each state may modify its terms through its own legislative process. Therefore, employers should monitor the dockets of their state legislatures in order to stay informed about the particular terms of the bills under consideration, and their status.

The movement toward anti-bullying legislation is not without its opponents. The U.S. Chamber of Commerce opposes such laws, stating that they would punish employers for employee acts that employers cannot anticipate. In short, any anti-bullying law would be inherently over-reaching. Other business groups also oppose anti-bullying laws, believing that they will spur frivolous lawsuits.

The Healthy Workplace Bill has yet to pass in any state with respect to private employers. In New Hampshire, the legislature upheld the Governor's veto of an anti-bullying bill. The bill would have defined abusive conduct and required state agencies to develop procedures for reporting and investigating bullying. The Governor opposed the bill because she believed that it would create unnecessary lawsuits.

Similarly, the Governor of Puerto Rico vetoed a bill that had been passed by the Territory's legislature. The bill did not have the support of Puerto Rico's Department of Labor nor the Department of Justice (DOJ) because, among other things, the definition of “workplace harassment” was vague.

Practical Recommendations

Employers are well-advised to take the following precautions in consultation with their legal counsel and human resources professional:

• Establish work rules and policies, and revise employee manuals to address hostile workplace, bullying and mutual respect, including the mechanism for lodging a complaint and for resolution of the complaint.
• Educate and train managers and supervisors about the company's legal obligation to provide a work environment that is free from harassment and hostile behavior.
• Maintain accurate and complete records of disciplinary actions.
• Encourage all employees to treat each other with mutual respect.
• Take complaints seriously and address situations before they escalate.
• Engage a neutral third party to resolve complaints of bullying or hostile work environment.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner at Posternak Blankstein & Lund LLP. Her practice includes business litigation, employment, and insurance coverage disputes. She may be reached at [email protected]. Laura Otenti is an associate in the litigation department at the firm. She may be reached at [email protected]. The authors wish to thank Clark Wheeler, Northeastern University School of Law, J.D. 2015, for his assistance with this article.

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