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Workplace Bullying: Managing the Company Playground
The Legal Intelligencer
Workplace bullying is a pervasive problem that often precipitates harassment and discrimination claims and, in more extreme cases, workplace violence. Although there is currently no state that prohibits workplace bullying, it can expose employers to significant legal risk and damage both productivity and employee morale. According to a 2012 survey by the Society for Human Resource Management (SHRM), 51 percent of organizations reported that there had been incidents of bullying in their workplace.
What Is Workplace Bullying?
Workplace bullying is a form of interpersonal aggression that has implications for job productivity, job satisfaction and how individuals perceive the organizational climate. Specifically, workplace bullying is the repeated mistreatment of one or more people (the targets) by one or more perpetrators that may take the following forms:
Bullying can be perpetrated in any medium, whether in person or through email, messaging and social networks. A majority of lawsuits stemming from workplace bullying identify the supervisor as the perpetrator. Further, two out of three lawsuits related to workplace bullying occurred in the public sector.
How it Affects the Organizational Culture
An organization's culture is critical for positive employee engagement and workplace bullying can cripple a culture as well as create various costs. Workplace bullying may directly cost the organization in terms of litigation fees, early retirement payouts, workers' compensation and counseling costs. Further, workplace bullying indirectly impacts organizations through diminished employee morale, productivity and motivation, increased absenteeism and turnover. According to the SHRM survey, the three most common outcomes of bullying incidents that organizations reported were decreased morale (68 percent), increased stress and/or depression levels (48 percent) and decreased trust among co-workers (45 percent).
Potential Employer Liability
Although there is no federal law prohibiting workplace bullying, employers may be liable for employee bullying under the laws prohibiting discrimination on theories of harassment or retaliation if the plaintiff-employee demonstrates a nexus between membership in a protected class and the mistreatment. A majority of lawsuits that stem from workplace bullying are brought pursuant to Title VII of the Civil Rights Act and include allegations of race, gender, national origin or religious discrimination.
Bullies are not always harassers, but they might be if they repeatedly target the same person and the conduct is directed at the target because of his or her membership in a protected group. To be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (i.e., race, age or national origin) not simply incivility or nastiness. Thus, even if mean-spiritedness or bullying renders a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in a protected characteristic, such as race or national origin discrimination. Simply put, an abusive workplace that is not discriminatory does not violate the law.
Interestingly, plaintiff-employees can demonstrate a nexus between harassment and protected class status without proving that the bully used discriminatory language or slurs. It may be sufficient to show that one protected class suffered disproportionately, even if all employees suffered to some extent. Further, if a bully uses sexist and offensive language with everyone, regardless of gender, female plaintiffs may still be able to demonstrate a nexus between harassment and protected class status, if the comments are specific to women.
Although anti-discrimination laws are designed to shield members of a protected class from intentional discrimination, they are not intended to promote general civility in the workplace. As such, in addition to establishing a nexus between the protected class status and the bullying behavior, employees asserting hostile work environment claims must demonstrate that the conduct was sufficiently severe or pervasive. This element of a hostile environment claim includes both objective and subjective components: an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. In determining whether the conduct is sufficiently severe or pervasive, courts will consider the totality of the circumstances, including: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether it is physically threatening or humiliating or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. These standards are designed to filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes and occasional teasing. Employers should be mindful, however, that a work environment shaped by the accumulation of abusive conduct and the resulting harm cannot be measured by carving it into a series of discrete incidents.
Finally, in the bullying context, employers are particularly vulnerable to retaliation claims, because even if the underlying claim of harassment is unsuccessful, the plaintiff-employee may still prevail on the retaliation claim. Retaliation occurs when an employee engages in a protected activity and suffers an adverse employment action as a result. A crucial factor in such claims is whether the employee's complaints of workplace bullying constitute protected activity. The relevant inquiry is whether the plaintiff-employee's complaints were in opposition to an employer's unlawful actions, such as discrimination based on gender, national origin or race, or whether the complaints were merely based on general abusive behavior that is not unlawful under Title VII. If the former is true, then the plaintiff-employee's reporting will likely be considered protected activity and the Title VII retaliation claim will be viable. If the latter is true, then Title VII is not applicable because the bullying complained of is insufficiently related to protected class status. There is no protection under the act for employees who simply complain about the boss being a bully.
The Equal Opportunity Bully
Individuals who engage in harassing behavior against several people, but not because of protected class status, are often called "equal opportunity harassers." Employers may prevail on a harassment claim by showing that the employee was not subjected to mistreatment because of protected class status, but because the harasser was simply a workplace tyrant. Consequently, if a bully is abusive to all other employees equally, the employer cannot be said to have violated laws prohibiting discrimination.
A growing number of states are considering legislation that would let workers sue for bullying that causes physical or emotional harm. Nine states including New Jersey and New York have pending legislation that would give employees a private right of action against their employer and the workplace bully. Since 2003, 24 states have considered anti-bullying laws that would allow litigants to pursue lost wages, benefits and medical expenses and compel employers to prevent an "abusive work environment."
The proposed state legislation is modeled after the Healthy Workplace Bill, which defines "abusive" conduct as behavior inflicted "with malice" that "a reasonable person would find hostile, offensive and unrelated to an employer's legitimate business interests." Examples of abusive behavior are listed in the proposed bill as "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; or the gratuitous sabotage or undermining of a person's work performance." The Healthy Workplace Bill provides an affirmative defense to employers that actively correct and respond to bullying, similar to the Faragher-Ellerth defense.
Although the United States has yet to enact a law prohibiting workplace bullying, employers with international operations should note that several countries including Canada, England, France and Australia already have laws forbidding such conduct in the workplace.
Best Practices for Employers
With legislative efforts on the rise, employers should take the following proactive mitigating measures to minimize bullying behavior in the workplace:
Workplace bullying is best avoided when preventative steps are taken, rather than reactive ones. By proactively managing the organizational climate, employers promote the health and safety of workers and benefit from increased productivity, high staff morale, reduced costs in sick leave, absences and staff turnover, and improved well-being of all.
Tiffani L. McDonough is a labor and employment attorney with Obermayer Rebmann Maxwell & Hippel in Philadelphia. Her national practice includes representing companies, hospitals and educational institutions in employment litigation and counseling on human resources matters, including the creation and implementation of workplace policies.
This article originally appeared in The Legal Intelligencer.