“Workplace bullying” is a somewhat novel and undeveloped employment law issue. However, it’s gaining traction, and attorneys and employers alike are taking note of emerging trial strategies, proposed legislation to regulate workplace behavior, and ways they can proactively promote a professional culture of civility.
Workplace bullying is not illegal—usually. Managers and employees can “legally” insult, intimidate, humiliate, threaten, deliberately ignore, and gossip about other coworkers, and they can engage in a whole slew of other offensive behaviors as long as the intended victim is not a member of a protected class. That means any employee who is not targeted based on race, ethnicity, religion, sex, disability, or age is hard pressed to find a legal remedy for workplace mistreatment. However, some relatively recent cases highlight how employees are starting to carve out a legal niche for workplace bullying claims.
Take, for example, the case of Doescher v. Raess, which involved claims for intentional infliction of emotional distress and assault. In that case, Joseph Doescher, a hospital operating room perfusionist, accused Dr. Daniel Raess, a cardiovascular surgeon, of charging at him, screaming, swearing, and raising his fist in a fighting posture. At trial, Mr. Doescher’s counsel painted Dr. Raess as the quintessential “workplace bully.” The court even allowed expert testimony from a social psychologist who offered the opinion that Dr. Raess was a workplace bully.
More often than not, however, workplace bullying claims arise in the context of discrimination suits. For example, in Bashir v. AT&T, Susann Bashir accused AT&T of fostering a work environment in which Ms. Bashir’s manager and coworkers humiliated and intimidated her during her religious conversion to Islam. The taunts got so bad that Ms. Bashir reported the behavior and asked to be transferred. When she did not receive any company support, she eventually stopped coming to work. Interestingly, AT&T had an excellent written policy against harassment that should have protected Ms. Bashir. However, the employees didn’t respect it and the company didn’t enforce it.
Both Mr. Doescher and Ms. Bashir won jury awards, although Mr. Doescher only succeeded on his assault claim, and Ms. Bashir’s success was in large part due to her Title VII protection. Their cases, although crafted as workplace bullying incidents, largely succeeded because of the actionable underlying claims—assault and discrimination. Even so, they demonstrate some wiggle room for future claims. With a greater limelight on the issue of workplace bullying, and proposed anti-bullying legislation in 21 states, more claims are sure to be on the horizon, and employers may soon face a broader class of potential claimants.
More important than the rising threat of litigation, however, employers should be alarmed by the potential impact that workplace bullies have on overall business operations. By fostering an environment where workplace bullying is accepted behavior, employers risk low employee morale, reduced productivity, increased FMLA requests for associated medical conditions, growing disability diagnoses and related requests for accommodation, and higher healthcare and workers’ compensation claims.
Employers should proactively implement policies and procedures that address workplace bullying and promote a productive work culture. This means developing a workplace anti-harassment policy that addresses all types of harassment and includes the following: a definition “workplace bullying,” examples of prohibited behavior, complaint procedures, disciplinary measures, managerial responsibilities, anti-retaliation provisions, and counseling resources. Below are some important points to consider when developing or revising your anti-harassment policy.
- Because bullying behavior can be somewhat ambiguous, along with a definition, provide some detailed examples, and differentiate “bullies” from tough managers who are performance-focused and fair.
- Spell out the consequences for employees who fail to observe the company’s expectations.
- Develop a response system that facilitates employee communication with HR. Respond to all harassment complaints whether or not they are based on protected characteristics and whether or not they are technically “illegal.” Initiate investigations, thoroughly examine the allegations, and implement disciplinary procedures if bullying behavior is discovered.
- Assuage fears of retaliation by demonstrating management’s commitment on all levels, taking a top down approach. An employee who feels that he or she has the company’s support at the top will be more likely to report incidents of workplace bullying from the bottom.
- Consider implementing a 360 degree review process that allows for performance feedback from supervisors, peers, and subordinate employees.
- Refer employees to an Employment Assistance Program where they can address their issues outside of their immediate work environment.
- Above all, ensure that your written policy is consistently enforced. As in the AT&T case noted above, having an unenforced policy is as helpful to an employer’s defense as no policy at all. More than that, however, fair enforcement demonstrates an employer’s commitment to and respect for its employees.
Monica A. Stahly is an attorney in the Labor & Employment group of Willcox & Savage. She can be reached at firstname.lastname@example.org or (757) 628-5592.