Bullying in the Workplace: Not Every Wrong Has a Legal Remedy

By Martha Weisel

Part I Read the newspaper, listen to the radio, talk to friends — instances of bullying abound. Stories highlight bullying among children in the lunchroom and on the playground,1 cyber bullying by adolescents through social media,2 even bullying by senior citizens in adult communities.3 It comes as no surprise that bullying is part of the business landscape. However, what does come as a surprise is that there are few, if any, legal remedies for workplace bullying. This paper examines the various options that are being used or considered to combat workplace bul- lying. Part I examines current legal remedies, beginning with Title VII of the Civil Rights Act of 1964. Although the federal statute provides a remedy for a hostile work environment, the courts have determined that if an employee is not a member of a protected category (e.g.: race or gender) he/she is not protected. Further, even if a member of a protected class, the plaintiff must establish that the harassment was based on race or gender. Common law remedies are examined next. Many cases of workplace bullying are brought to court as intentional torts, such as assault or intentional infliction of emotional distress. In such instances, the plaintiffs must prove that the defendant’s actions caused plaintiff actual physical or psychological harm – as well as establishing that defendant’s conduct MARTHA WEISEL is the Chair and As- was purposeful. Workers’ compensation has also been used by plaintiffs seeking sociate Professor of Legal Studies in compensation for workplace bullying. Business, Dept. of Accounting, Taxation In light of the limitations in the current litigation model, some have proposed & Legal Studies in Business, Hofstra legislation to address the issue. Proposed federal and state legislative responses University, Hempstead, NY. She is a to deal with bullying at work are analyzed. One option considers amendments graduate of Queens College where she to current federal worker safety legislation. Another possibility is the Healthy received a B.A. and an M.S. degree. She Workplace Law, a proposed statute that has been introduced in many state leg- received a J.D. from St. John’s University islatures. However, the reality is that no state has yet to pass the law. The paper School of Law. Professor Weisel is admit- concludes with suggested alternatives to combat bullying that look outside of ted to practice in New York State courts, the legal framework. the federal courts in the Eastern and Southern Districts, the Court of Appeals Defining the Problem for the District of Columbia and the U.S. Supreme Court. Although everyone agrees that bullying occurs in the workplace, there is no consensus as to a definition. Workplace bullying has been examined in a number of different

520 LABOR LAW JOURNAL ©2016 BY MARTHA WEISEL disciplines, and each discipline views the issue through its origin, religion, gender (including eventually pregnancy) own lens. Management studies have defined bullying in the in any employment action (hiring, firing, job assign- workplace as “unwanted, offensive humiliating, undermin- ments). Later legislation extended protection to other ing behavior towards an individual or groups of employees. protected categories — including age and disability. In Such persistently malicious attacks on personal or profes- 1986, the United States Supreme Court determined that sional performance are typically unpredictable, irrational, and sexual harassment in the workplace based on a hostile work often unfair. This abuse of power or position can cause such environment was a form of employment discrimination chronic stress and anxiety that people gradually lose belief in prohibited under Title VII.11 themselves, suffering physical ill health and mental distress To constitute harassment the conduct must be severe, as a result.”4 Psychology studies define workplace bullying as ongoing and pervasive. “Simple teasing, offhand com- “behavior by an individual or individuals within or outside ments and isolated incidents (unless extremely serious)” an organization that is intended to physically or psychologi- do not constitute sexual harassment based on a hostile cally harm a worker or workers and occurs in a work related work environment.12 The conduct has to be bad enough context.”5 The Workplace Bullying Institute6 defines the issue to change the conditions of employment, but there is no as “repeated, malicious, health-endangering mistreatment need to show an adverse employment action to establish of one employee (target) by one or more other employees a hostile work environment, nor is it necessary to show (perpetrators). Include verbal abuse, offensive conduct/be- actual injury, The court has to look at all of the circum- haviors including non-verbal behaviors which are threatening, stances. Would a reasonable person think this was harass- humiliating or intimidating – including work interference, ment based on gender? It must be enough to unreasonably such as sabotage – which prevents work from getting done. interfere with an employee’s ability to work effectively.13 In “ One of the distinctions that needs to be made is between cases involving a hostile work environment, an employer boss/supervisor/co-worker who is mean to everyone at work will be held liable if the employer was negligent or failed versus someone who is a bully – the bully targets an individual to take steps to counter the abusive environment cre- – he/she does not treat everyone badly. Contrary to what our ated by the supervisor or co-worker. In determining an mothers told us, the bully at work is not someone who feels employer’s vicarious liability for the acts of a supervisor/ badly about himself, rather it is about power, control and ca- co-worker, one must look at the reasonableness of what reer advancement.7 Remember Machievelli (“power corrupts the employer did and the reasonableness of what the and absolute power corrupts absolutely”). Recent studies have plaintiff employee did.14 To avoid liability, where there found that those who score high on a Machiavellianism scale was no adverse employment action, the employer has to — which measures manipulative, amoral, deceitful practices show that the employer took reasonable steps to prevent (the end justifies the means) — have found that those with sexual harassment and reasonable steps to correct the the highest scores appear most likely to engage in bullying problem, and that the plaintiff did not take advantage of at work.8 David Yamada, a legal academic who has done any of these steps – acknowledging that “it is now well much research in this area considers workplace bullying as recognized that hostile environment sexual harassment “intentional infliction of a hostile work environment upon by supervisors (and for that matter, co-employees) is a an employee by a co-worker(s) through both verbal and non- persistent problem in the workplace. verbal behaviors.”9 In many work environments bullying is An employer can, in a general sense, reasonably an- considered the way in which work gets done. ticipate the possibility of such conduct occurring in its As there is no specific legal definition for workplace workplace, and one might justify the assignment of the bullying, one must consider the three ways in which the burden of the untoward behavior to the employer as one of courts have come to examine this issue, Title VII of the the costs of doing business, to be charged to the enterprise Civil Rights Act of 1964, common law tort remedies and rather than the victim.”15 In a dissent in “a pervasively administrative law workers’ compensation awards. hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly Title VII of the Civil Rights Act charged with maintaining a productive, safe work environ- ment. The supervisor directs and controls the conduct of of 1964 the employees, and the manner of doing so may inure to the employer’s benefit or detriment, including subjecting Title VII was part of major civil rights legislation in the the employer to Title VII liability.16 Ultimately, the court 1960s.10 The law prohibits employers from discriminating has determined that whether or not sexual harassment, against any of the protected classes (race, color, national based on a hostile work environment, occurred is based on

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what a reasonable person in the plaintiff’s position would cases usually involve allegations of assault and intentional think.17 “Recognizing liability for same-sex harassment infliction of emotional distress. Assault is defined as an will not transform Title VII into a general civility code intentional, nonconsensual act by defendant that gives for the American workplace, since Title VII is directed at rise to the apprehension and fear in the mind of plaintiff discrimination because of sex, not merely conduct tinged that he or about to be physically attacked. In a case that with offensive sexual connotations; since the statute does alleged assault without an allegation of being part of a not reach genuine but innocuous differences in the ways protected category,21 the plaintiff successfully argued that men and women routinely interact with members of the defendant committed an assault. The facts included tes- same, and the opposite sex; and since the objective per- timony that in the operating room, the defendant doctor spective of a reasonable person in the plaintiff’s position, started screaming and swearing, advanced on the plaintiff considering all of the circumstances.”18 with clenched fists – the plaintiff backed up to the wall Although harassment cases were originally based on gen- and put his hands up. The defendant, however, did not der, the other protected categories (race, national origin, hit the plaintiff, rather he stopped, said that the plaintiff religion – later statutes age, disability) are also covered by was “finished” and left the room. On appeal, the court the statute as long as the plaintiff can establish that the concluded that the plaintiff proved by a preponderance of harassment was motivated by the specific protected cat- evidence that the defendant acted in such a way that it was egory. Two decisions from the 5th Circuit Court of Appeals reasonable for the plaintiff to be in fear of imminent harm granted summary judgment to the employer as most of as the doctor had the ability to cause the harm. Assault the incidents that were described by the plaintiffs did not does not require physical contact as long as the plaintiff relate to race.19 The court determined that in looking at the was reasonably afraid that he would be attacked. For as- facts in a manner that most favored the plaintiff, an African sault to constitute legal liability, there must be a physical American man, only three of the twelve alleged incidents element – even if harm does not actually occur. Raess has had a racial component. Those instances consisted of a been cited as the first case supporting workplace bullying colleague (both were supervisors) referring to the plaintiff as a legal option. However, the case – which is interest- twice as “boy” and on one occasion stating that she would ing in that harassment was argued in the absence of any “beat the tar off of (or out of) him. The court concluded protected category, does not actually provide a strike for that a claim of racially motivated hostile work environ- employees arguing bullying in the workplace. ment could not be supported based on those remarks. Intentional infliction of emotional distress is another In a case that went to trial, Yancick,20 a white employee, intentional tort that may be applied in the context of argued that an African American co-worker was a bully workplace bullying. Its definition is not as clear as that of (he did not comply with workplace rules – and got away assault. Different states have different definitions. However with more than other employees, acting “rage ready to be most require(1) outrageous conduct by the defendant,(2) unleashed,” allegedly staring at workers, bumping into intent to cause or reckless disregard of the probability of them and invading their personal space. In one instance causing emotional distress,(3) severe emotional suffering, the plaintiff was working with the other employee and a and (4) actual and proximate causation.22 The Restate- 940 pound steel coil fell on plaintiff from the machine ment Second of Torts defines the tort as: (a) Defendant being operated by the African American employee – and intended to inflict emotional distress on the plaintiff; and it was dropped purposely because of his race. The court (b) Defendant’s conduct was extreme and/or outrageous; concluded that the co-worker was not pleasant, but that and (c) Defendant’s actions caused plaintiff’s distress; and the harassment did not appear to be racially based, there- (d) Plaintiff’s distress was severe.23 fore, not protected under the statute. Allegations of intentional infliction of emotional distress, rarely, if ever, are successful in the context of Common Law Tort Remedies – the employment relationship. Although the allegation is frequently put in the pleadings, it is rarely successful. Assault and Intentional Infliction As most employees are in an at-will relationship with of Emotional Distress their employers, few behaviors in the workplace will rise to the standard needed to establish this intentional tort. In the absence of harassment under Title VII, tort law Further, in Abbott v.Conoco,24 the appellate court reversed represents another option for an employee in bringing and vacated the trial court’s decision that the defendant an action based on workplace bullying. These allegations employer had committed an intentional infliction of are usually seen together with Title VII claims. These emotional distress. In the case, the plaintiff who worked

522 LABOR LAW JOURNAL WINTER 2016 at a convenience store had stopped a store robbery. She The Workplace Bullying Institute provides a less benign was then fired because store policy prohibited employees view of the use of workers’ compensation laws as a remedy from resisting a robbery. for bullying.26 In addition to the concept of exclusive rem- edy, the article states that “most states do not recognize, Administrative Regulations – or it is nearly impossible to succeed with a psychological workers’ compensation claim. Since the wounds of bully- Workers’ Compensation Laws ing are invisible, thus psychological, your state’s workers’ compensation system may frown on stress-related claims, Some have suggested that workers’ compensation statutes and therefore, bullying or psychological abuse.” In addi- are the place to look for a remedy for bullying at work. Al- tion, “psychologists and physicians who review cases as though every state creates its own workers’ compensation independent professionals nearly always find only that laws, the laws are quite similar. Workers’ compensation is personality conflicts are responsible for bullying related a no-fault concept in which issues of responsibility are not claims and are dismissive about psychological abuse at considered. Employers pay premiums into workers’ com- work.“ For workplace bullying to be covered under work- pensation insurance. Benefits are defined under a clear-cut ers’ compensation, the injury must have occurred in the schedule – listing the value of each injury, including death. course of employment, and can lead to psychological prob- Although benefits vary state by state, non-permanent in- lems, including but not limited to depression, stress and juries tend to be based on a percentage of the employee’s anxiety. To qualify for workers compensation based on a salary. The amount of time that one can receive workers’ psychological injury (including stress), the employee must compensation is also listed. Remember the tradeoff – in establish that the harassment experienced was greater than exchange for fairly immediate payments – the employee that which other employees in similar situations within may not sue the employer for the injury. The injury must the company experienced.27 Therefore, a workplace bully have occurred in the course of employment. The statutes who treats everybody badly is off the hook under workers’ are designed to provide compensation to employees for compensation laws. injuries that occur at work that cause employees to lose In a recent New York case,28 the employee successfully worktime – thereby losing salaries and requiring medical argued that bullying by co-workers over a 3-year period, expenses. The other side of the coin is that an employee including name calling and physical threats, constituted may not sue an employer for liability; in most instances, a workplace injury. Based on the acts of co-workers, the workers’ compensation is the only relief available. The employee’s supervisor transferred her to other locations. exclusive remedy concept of workers compensation is However, this did not stop the inappropriate behaviors somewhat frayed. The Florida courts determined that in by co-workers. The Workers’ Compensation Board de- sexual harassment cases workers’ compensation should termined that these acts, which went on for several years, not be the exclusive remedy, but that an employee could caused her to have an occupational disease involving receive benefits under workers’ compensation and also adjustment disorder, an occupational disease based on bring litigation under Title VII, the court stating that her work, and granted her claim. The case is a stretch as “workers’ compensation is directed essentially at com- it appears that the claimant had lots of problems getting pensating a worker for lost resources and earnings. This along with co-workers before events occurred at work. is a vastly different concern than is addressed by sexual Although, workers’ compensation provides for relief harassment laws. While workplace injuries rob a person based on stress in the workplace,29 some are concerned of resources, sexual harassment robs the person of dignity that workers’ compensation is not the appropriate venue and self-esteem. Workers’ compensation addresses purely for cases involving inappropriate behavior by co-workers economic injury; sexual harassment laws are concerned and supervisors. with a much more intangible injury to personal rights. To the extent these injuries are separable, we believe that Part II they both should be, and can be, enforced separately.”25 An employee is going to get less under workers’ compensa- The limitations imposed by federal legislation under Title tion than he/she might receive after a trial; however, the VII of the Civil Rights Act of 1964, common law torts payment is going to be forthcoming much more quickly and state legislation based on workers’ compensation laws, and usually with more certainty than through litigation. have led to various proposals to address workplace harass- In most instances, workers’ compensation remains the ment. These include changes to current federal regulations sole remedy. such as those under the Occupational Health and Safety

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Act (OSHA)30, development of state legislative proposals, significant to the extent that it causes physical or psy- and creation of new tort remedies under the common law. chological harm. The perpetrator (the employer or other Some suggest that European models are an appropriate employees) must act with malice – i.e., knowledge that that tool for dealing with issues of workplace harassment. the behavior is intentional, that the bully knows what he The issue is very much part of the current business is doing or that a reasonable person would conclude that landscape. A 2014 survey conducted by Zooby Analyt- the bully knows what he is doing. Malice, the desire to see ics, commissioned by the Workplace Bullying Institute someone suffer harm without any legitimate reason, can (WBI), indicated that more than 25% of the respondents be inferred by the conduct of the individual. The malice had direct experiences with abusive conduct at work, and requirement is similar to the requirement for intentional that 72% were aware of workplace bullying, although 72% infliction of emotional distress tort cases under the com- of employers surveyed discount, encourage, rationalize or mon law. To constitute a wrongful act, the court requires defend bullying. According to WBI’s website, the current that the plaintiff establish by a preponderance of evidence survey provided a definition of workplace bullying as that the defendant intended to harm the plaintiff or acted “repeated mistreatment” and a form of “abusive conduct” in such a way that harm was likely to occur. indicating that only the most serious infractions should The intent to harm, or malice requirement of HWA, be considered in answering the survey.31 is not seen in court decisions under Title VII. In Harris The proposal that has gotten the most traction is the v. Forklift 38 the U.S. Supreme Court ruled that a person Healthy Workplace Act (HWA), which was first developed could establish sexual harassment based on a hostile work by David Yamada in 2004.32 Since then the proposed environment without the need to show psychological or legislation has made its way through academic journals, emotional harm. In Harris, the Court determined that a popular websites and state legislatures.33 More than half of reasonable person could find the acts of Ms. Harris’ boss the states in the United States have had Healthy Workplace offensive enough to constitute harassment, although Ms. legislation introduced into their legislatures, but no state Harris did not suffer any physical or emotional harm. It has passed the legislation (www.healthyworkplacebill. is interesting that HWA included the intent requirement. org, last viewed June 25, 2015).34 For example, New York Outside of the intent requirement, the Healthy Work- legislators have introduced this bill to amend current New place bill mirrors the language of a hostile work environ- York labor law every year since 2007. However, it has never ment based on sex that has been developed by the courts, become the law.35 that is, the disputed conduct must be severe, pervasive and The major thrust of the Healthy Workplace legislation is ongoing. In addition, there is an exception for behaviors that the wrong of workplace bullying should not be limited that are so bad, “egregious,” that a single act would consti- to a particular status (i.e.: race, gender), and that the bul- tute a wrong, and a caveat that exploiting a person’s known lying need not be related to a specific protected category.36 weaknesses is to be considered an aggravating factor.39 The theory makes sense. Why should an employee who is HWA specifies that retaliation constitutes an unlawful bullied because of her gender be protected if the bullying employment practice.40 This includes retaliation against an relates to her gender but not be protected if the bullying employee who has made an accusation, even though the does not relate to her protected status? The proposed underlying charge is unfounded. Again, this is something legislation attempts to deal with bullying at work that that the courts have addressed. For example, an employer does not fall within the protected categories. Its central may be found not liable for harassing an employee based on hypothesis is that bullying should not be legally defensible her gender, yet liable for taking certain forms of retaliation.41 as against any person, even if that person does not have Another requirement of the proposed legislation is that protected status under federal law and the harassment is the employee must notify the employer of the situation, not directly related to that protected status. and the employer must try to correct the problem.42 In many ways, HWA mirrors the language of the courts HWA protects an employer against a bullying complaint in determining what constitutes sexual harassment under if the employer tried to prevent the conduct and took Title VII. To qualify under HWA, the target (HWA’s lan- appropriate measures, and the employee did not take guage for the alleged victim) must be subjected to an abu- advantage of the preventive steps. This employer defense sive work environment which “exists when an employer or is available only when the employee has not suffered any one or more of its employees, acting with intent to cause adverse employment action, such as job loss. Again, this pain or distress to an employee, subjects the employee to language is similar to that used by the courts. HWA adopts abusive conduct that causes physical harm, psychologi- a defense for employers that the court established relating cal harm or both.37 The behavior must be persistent and to sexual harassment. If the bullied employee does not

524 LABOR LAW JOURNAL WINTER 2016 suffer tangible harm e.g.( : getting fired), and the employer results in emotional and/or physical harm.52 It remains has a procedure in place to deal with harassment — but to be seen whether or not the courts will be amenable to the targeted employee did not use the procedure — then such an approach. the employer will have no liability.43 If there has been a tangible loss, this defense is not available to the employer. The Right to Dignity in the Workplace The proposed bill allows the employee to sue for a Still others argue that looking at workplace bullying variety of remedies, including damages, back pay & as a form of discrimination is not the correct mindset. reinstatement. However, if there is no negative employ- Proposed legislation such as the Healthy Workplace bill, ment action, emotional distress and punitive damages can as well as suggested modifications to current tort law, tend only be awarded against the employer if the “actionable to focus on liabilities and entitlements. The focus is on conduct was extreme and outrageous.”44 Other states have discrimination and monetary compensation. Some have proposed damages for emotional harm limited to $25,000 argued that the issue is one of having the right to safety when there has been no adverse employment action.45 and dignity in the workplace.53 European countries have The proposed legislation prohibits a person from seeking looked at the issue from that perspective, concentrating relief under HWA if the individual has received workers’ on safety and respect in the workplace. The argument is compensation benefits. New York’s proposed legislation that the focus should be on dignity at work, and that the requires the employee to bring an action within one year right to a civil workplace should be a human right. Some of the “last act that constitutes an alleged violation.”46 In have argued that OSHA is the correct place to address terms of workers’ compensation, New York’s proposed bill workplace bullying,54 as OSHA’s general duty clause requires that any benefits received under workers’ com- requires employers to furnish to employees a workplace pensation are reimbursed from damages awarded under which is free of recognized hazards that are causing or likely HWA.47 There have been a number of articles suggesting to cause death or serious physical harm to employees.55 ways to improve on the Healthy Workplace Bill, including The argument in using OSHA is that workplace violence the use of mediation and arbitration rather than litiga- could definitely be considered a hazard (bullying being one tion as a way of mollifying employers.48 Others suggest type of harm). However, the law as currently written only that there should not be a requirement of emotional or refers to physical harm. Some have suggested that specific psychological harm, and that the standard developed in regulations are needed to deal with bullying, rather than the HWA is higher than that of the courts under Title VII relying exclusively on the general duty clause, and that and more akin to an intentional tort under IIED.49 But a specific standard is appropriate given the evidence of the bottom line is that to date, no legislature has adopted “prevalence, costs, and health impact of workplace bully- the Healthy Workplace Law. ing.56 As seen throughout this article, workplace bullying tends to do more psychological harm, rather than physi- Changes in Tort Law cal harm. Critics of OSHA argue that OSHA refuses to regard bullying as a serious problem despite research that Others have argued that workplace bullying should be shows that workplace bullying may cause severe damage addressed through the common law, suggesting a modi- to the victim’s mental and physical health.57 Further, use fication to the tort of intentional emotional distress. As of OSHA has certain drawbacks – many argue that the discussed in Part I, to date the courts have not been recep- penalties are not adequate and that compliance is low, and tive to any but the most extreme forms of abusive conduct. has no private cause of action.58 The argument is that rather than emotional distress, the The model suggested through OSHA is being imple- tort would be named intentional infliction of workplace mented in several European countries. Sweden was the first abuse,50 providing a definition of bullying behavior as: European nation to pass legislation dealing with bullying “Exposure by the targeted employee to at least two nega- in the workplace.59 The statute places affirmative require- tive acts on a weekly basis for at least 6 months, resulting ments on the part of the employer, requiring intervention in mental or physical harm to the employee and in situ- to stop harassment at work. In addition, the employer ations where the employee finds it difficult to defend or must attempt a collaborative process to resolve disputes. stop the abusive acts.”51 After establishing the definition of The employer can be charged with a fine for failing to abide bullying, the modified tort itself is defined as having three by the law. However, there is no private cause of action. prongs. They are: (i) The conduct must be intentional or Great Britain passed the Protection from Harassment Act reckless and occur at work; (ii) The conduct must result in in 1997.60 The statute was developed as an anti-stalking actual bullying (as previous defined); and (iii) The conduct law but is used to deal with workplace bullying. Under

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the law, an employer will not be held liable unless liability California is the first state to try to deal with the issue is “just and reasonable.” The definition of harassment is of workplace bullying behavior that is not covered by cur- vague, but English courts have interpreted harassment rent federal or state law. As of January 1, 2015, employers as conduct: (i) occurring on at least two occasions, (ii) in California with 50 or more employees are required to targeted at claimant, (iii) calculated in an objective sense include training regarding workplace bullying (defined as to cause distress.61 France also has legislation dealing with abusive conduct) within the two hours of training regard- workplace harassment and the right to dignity at work.62 ing sexual harassment that is required of all supervisory The law provides that a single act can constitute a wrong- employees every two years.67 This is in addition to the ful act. In brief, unlike the United States, Europe tends requirement of training to deal with sexual harassment to see the problem as a health and safety issue, requiring that is already in place in California since 2004. The new a workplace free of bullying as part of the need for safe law does not state how much time should be spent on work conditions.63 workplace bullying within the two-hour training program. Some have argued that this model of seeing the issue as The new law defines abusive conduct as: “…conduct of one of health and safety should be incorporated into U.S. an employer or employee in the workplace, with malice, law. Recent mainstream media articles have looked at the that a reasonable person would find hostile, offensive and issue from a health standpoint, arguing that incivility and unrelated to an employer’s legitimate business interests.” bad behavior have a negative effect on employees’ health, The use of the term malice is important. As previously performance and morale, citing a study published in 2012 stated, malice requires intent to harm. It is conduct that a that tracked women for 10 years and determined that reasonable person would find threatening or intimidating. stressful jobs increased the risk of a cardiovascular event It has been suggested that training should be directed to by 38 percent.64 Further, Porath argues that incivility at ensuring that supervisors do not act impulsively, and to work has grown from 25% in a study by the author in provide supervisors with appropriate tools.68 What the new 1998 (the employee was treated rudely at least one time legislation does is to develop a civility code.69 The Califor- a week). By 2011 the number was more than 50%. She nia statute was amended in 2016 by the FEHA regs.70 The believes that one of the reasons for the increase is technol- regulation allows the Department of Fair Employment and ogy “We can take out our frustrations, hurl insults and Housing to seek remedies against an employer for failing take people down a notch from a safe distance.” Further, to deal with discrimination in the workplace even if the some of the most successful business people have very bad underlying discrimination is not successful. However, the reputations for the ways in which they treat employees.65 remedies sought by the agency must be non-monetary and While lauding the innovations and creativity of Elon preventative in nature. Musk (Tesla), Jeff Bezos (Amazon) and Steve Jobs (Apple), Tennessee passed the Healthy Workplace Act in 2014.71 Schwartz finds it troubling as to “how little care and ap- Unlike the California law, the Tennessee statute applies preciation any of them give (gave) to employees and how only to state and local governmental entities.72 The purpose unnecessarily cruel and demeaning they could be to the of the law is intended to help prevent abusive conduct in people who made their dreams come true.” the workplace. “Abusive conduct” means acts or omis- So we know that there is a problem, we have looked at sions that would cause a reasonable person, based on the various ways of correcting the problem, but to date there severity, nature and frequency of the conduct, to believe has been no success. It appears that bullying in the work- that an employee was subject to an abusive work environ- place may be a subject that should not be amenable to ment, such as: (A) Repeated verbal abuse in the workplace, being regulated through the courts or through legislation. including derogatory remarks, insults and epithets; (B) Research has shown that a civil workplace is a more effec- Verbal, nonverbal, or physical conduct of a threatening, tive work environment, that more work gets done, and the intimidating, or humiliating nature in the workplace; or work gets done better. If we can also establish that civility (C) The sabotage or undermining of an employee’s work in the workplace lessens other business costs, such as health performance in the workplace. insurance or the cost of replacing employees who leave or Unlike the California law, the Tennessee law does not take off days from work, then we have a true victory. Per- require intent or malice. Both laws use the reasonable haps an alternative model that includes cooperation from person standards. The law requires the Tennessee Advisory the various stakeholder groups, employees, employers, Commission on Intergovernmental Relations (TACIR) to government, and unions, using compliance incentives is a develop a model policy for employers to prevent abusive path worth trying.66 A step in that direction can be seen in conduct in the workplace.73 Although not required, if the recent legislation passed in California, Tennessee and Utah. public employer adopts the model policy or one that is

526 LABOR LAW JOURNAL WINTER 2016 similar to the model policy, “the employer shall be immune behavior negatively affects the organization and other from suit for any employee’s abusive conduct that results employees as well as the victim.78 Can we make the case in negligent or intentional infliction of mental anguish.”74 to businesses without the need for legislation? The law supplements legislation that protects employers It certainly seems that trying to make the workplace from employees’ intentional acts against other employees. more civil is an effort worth trying, a no-brainer, a win- In this way, the legislation is similar to the affirmative win. However, it let us conclude with a word of caution.79 defense available under Farragher and Elleneth in terms In Hispanics United, the employer had a policy of “zero of sexual harassment. tolerance” prohibiting bullying and harassment. Some Utah’s statute went into effect in 2015. It requires state employees posted nasty remarks about co-workers on agencies to provide training for supervisors. Its definition Facebook. The employees who posted the remarks were of abusive conduct includes “exploit(ing) an employee’s fired and brought the issue to the National Labor Relations known physical or psychological disability.”75 The law Board (NLRB). The NLRB found that such a policy is applies only to state agencies, but requires state agencies not prohibited as it prevents employees from engaging in to train supervisors every other year. The law also requires a “concerted activity” which is allowed under our labor the training to include the employee grievance process. laws. The NLRB ordered that the fired employees had to be Employers are required to explain how they will assist those reinstated. The NLRB’s position may make anti-bullying employees who have been subjected to abusive conduct at policies difficult to enforce.80 To avoid problems in train- work. Although the statute does not create a new cause of ing employees, the focus should be on individual, rather action, it does not necessarily limit the options available than group behavior. The NLRB focuses on protecting to an employee. concerted activity, that is, a number of employees working The new laws move from a focus on discrimination together. Therefore, anti-bullying activities should focus and harassment to the need for a more respectful work on preventing individual negative behaviors. In training, environment.76 Can these statutes act as a roadmap to provide examples of inappropriate behavior. Training employers in other states? Is training the answer? Employ- works best if people are engaged. Ask how situations can ers long-ago jumped on the training bandwagon to deal be remediated. Concentrate on actions. with issues involving sexual harassment. However, the A civil workplace is in everyone’s interest. Managers have “carrot” to training was paved with the “stick” of litiga- to buy into setting a positive tone. Get employees involved, tion. Without the threat of litigation, it appears, based on concentrate on ideas that improve the workplace environ- the research, that employers will not be subject to liability ment rather than focusing on what not to do. Develop a for bullying behavior unless it reaches the outrageous training program that works. “At the very least, training category. Will employers be willing to deal with bullying should remind employees and managers that they have through training? a responsibility to contribute to achieving a healthy and Employers have to be able to see the impact of bullying civil work environment that does not tolerate bullying. in the workplace. To get employers to sign on, one needs At the very best, training programs should include skills to show that bullying can have an adverse effect on the such as conflict resolution, negotiation, interpersonal com- victim, on others in the organization and on the business munication, assertiveness, empathy, stress management, as a whole. The focus needs to be on the benefit to the leadership, optimism and self-examination…valuable employer of a civil workplace. One can argue that bully- skills that promote a healthy workplace.”81 In light of the ing can increase productivity at first; it is likely that in the limitations of the litigation model, employer initiatives, longrun it will result in lack of engagement and increased together with legislation requiring employers to develop turnover as nobody wants to work in a place where they training programs, may be a better answer to the problem are demeaned.77 Studies have demonstrated that abusive of workplace bullying.

ENDNOTES

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WINTER 2016 527 BULLYING IN THE WORKPLACE: NOT EVERY WRONG HAS A LEGAL REMEDY

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