ACC Docket 84 April 2010 An employee in your company approaches you and tells you he is ter- rified to come to work. He explains that he is constantly the sub- ject of social ostracism, vulgar language and dismissive and rude behavior from both supervisors and coworkers. Despite producing quality work, he is criticized on a regular basis for his performance. He does not believe, however, that this treatment is because of race, gender, age or any other protected characteristic. Is this employee sim- ply disgruntled, or just too sensitive and unable to handle the rigorous nature of today’s corporate climate? As we all know, times are tough and competition among coworkers and supervi- sors in corporate America is not uncommon. Some What Employers Should companies may even en- Do to Address Bullying courage such behavior by overemphasizing that Behavior in the Workplace competitiveness. How- ever, the behavior that your employee describes may be more than workplace competition, and failing to deal with the issue promptly may have a negative impact on your com- pany — both legally and financially. By Carol Rick Gibbons, Rodney A. Satterwhite and Latoya C. Asia ACC Docket 85 April 2010 employee morale and performance, and What is Workplace Bullying? Carol riCk Gibbons is an An emerging risk for companies today associate general counsel your company’s culture. for Capital one Financial is a surprisingly common phenomenon Corporation in richmond, Va, known as workplace bullying. While there where she leads the legal de- Workplace Bullying and Its Impact partment’s employment and benefits group. is no standard definition of workplace Gibbons is the chair of the Employment and on the Workplace bullying, the expression is commonly used labor law Committee and a member of the Workplace bullying is becoming more WMaCCa board. she can be contacted at to describe workplace behavior that could [email protected]. of a potential liability issue for employers reasonably be considered threatening, due to the massive research and media rodnEy a. sattErWhitE, a demeaning, humiliating or intimidating partner at McGuireWoods llP, exposure it has received in recent years. practices in equal employ- to an individual or group, thus creating ment opportunity law, sexual In 2007, the WBI partnered with Zogby an “abusive work environment.” Unlike harassment, employment International, a polling and market contracts, non-competition agreements, unlawful harassment, which is generally employee handbooks, employment policies, research company, to conduct the first based on race, color, sex, religion, na- wrongful discharge, ada, adEa and FMla. representative study of adult Americans he has litigated in state, federal and tional origin, disability and/or age, work- administrative courts. he can be contacted on the topic of workplace bullying. Ac- place bullying is an act that involves the at [email protected]. cording to their research, 37 percent of psychological — and sometimes physical latoya C. asia is a the US workforce, or roughly 54 million — abuse of one person by another. This practicing attorney in the employees, admitted that they had at labor & Employment group behavior is normally directed at employ- at McGuireWoods llP in some point experienced bullying on the richmond, Va. asia received ees or their job performance, but is not her Jd from William & Mary school of law job. The research also revealed that: based on any protected status. Addition- in 2009, and her bs in Criminal Justice • Most bullies are bosses (72 percent); and spanish from Virginia Commonwealth ally, because workplace bullying behavior University in 2006. she can be contacted at • More perpetrators are men (60 per- is usually covert, it is difficult to detect. [email protected]. cent) than are women (40 percent); The Workplace Bullying Institute • Most individuals bullied (57 percent) (WBI) is a leading organization formed are women; to help eradicate workplace bullying through research in • Female bullies target women (71percent); men target North America. In addition to the WBI’s research compo- men (54 percent ); nent, it has separate legislative and educational divisions • Bullying is four times more prevalent than illegal dis- that allow for focus on public policy solutions to workplace criminatory harassment; bullying and professional training, respectively. According • 62 percent of employers ignore the problem; to research conducted by the WBI, some of the most com- • 45 percent of those targeted suffer stress-related health mon workplace bullying tactics include: problems; • Falsely accusing an individual of “errors” not • 40 percent of those bullied never tell employers; and actually made; • Only 3 percent of bullied people file lawsuits. • Nonverbal intimidation, such as staring and glaring, Workplace bullying is becoming so prevalent that the that clearly shows hostility; 2008 International Conference on Occupational Stress and • Discounting individuals’ thoughts or feelings in front Health, titled “Work, Stress, and Health 2008: Healthy of others (i.e., in meetings); and Safe Work Through Research, Practice and Partner- • Using the “silent treatment” to ignore the individual; ships,” featured many papers on this topic that received • Exhibiting uncontrollable mood swings; international press coverage. Furthermore, over the past • Randomly making up their own rules and not few years, the National Institute for Occupational Safety following them; and Health has been involved in research and studies fo- • Disregarding individuals’ satisfactory or exemplary cused on workplace bullying to assist with their research in quality of completed work; identifying factors associated with work-related stress. • Constantly criticizing an individual, using a more harsh Most recently, Consulting Psychology Journal, a standard than for others; prominent academic journal published by the American • Starting or failing to stop destructive rumors or gossip Psychological Association, devoted its entire September about an individual; or 2009 issue to identifying solutions to workplace bullying, • Encouraging others to turn against the individual. including effective organizational consultation, policies Although workplace bullying is not illegal per se, it is and legislation; alternative dispute resolution and special- on the rise, and has a strong possibility of becoming illegal ized training. Additionally, workplace bullying has been when looked at in the employment law context. Further- discussed on various talk radio shows and in hundreds of more, this form of behavior can have a profound effect on news articles and workplace blogs. ACC Docket 86 April 2010 Financial Costs for Employers Doescher on the assault claim and awarded him $325,000. Workplace bullying can have a significant impact on an On appeal, the Indiana Court of Appeals reversed and employer’s bottom line. A recent survey of 9,000 federal em- remanded the case because the trial judge allowed the tes- ployees indicated that 42 percent of female and 15 percent timony of a “workplace bullying expert,” Dr. Gary Namie, of male employees reported being bullied within a two year one of the co-founders of the WBI. Dr. Namie testified as period, resulting in a cost of more than $180 million in lost to the nature of Raess’ behavior saying that in his opin- time and productivity. High absenteeism and turnover rates ion, it was “an episode of workplace bullying....” He said are common with workplace bullying and this increases he reached his conclusion based on what he heard and employers’ costs in having to hire and re-train employees. read and that Raess “is a workplace abuser, a person who In addition to the economic drain resulting from high subjected [Doescher] to an abusive work environment.” absenteeism and high turnover of individuals who are In addition, the court of appeals found that the trial court victims of bullying, health care costs may also increase. failed to give a jury instruction requested by Raess that According to a study conducted by the WBI in 2003, workplace bullying was not an issue in the case and that many bully targets become depressed. The research found there was no basis in the law for such a claim. that targeted individuals suffer debilitating anxiety, panic The Indiana Supreme Court reversed the court of ap- attacks, clinical depression (39 percent) and even post- peals, reinstating the trial court’s award to Doescher. It traumatic stress (30 percent of women; 21 percent of men). found no error in the trial court’s ruling that allowed Dr. Namie’s expert testimony. According to the court, the term Current State of the Law “workplace bullying” could be used because the phrase is With the level of workplace bullying activity on the rise, “like other general terms used to characterize a person’s there have been a few instances where the issue has been behavior....” The court boldly stated that “[a]s evidenced by raised in court. For example, in Raess v. Doescher, the the trial court’s questions to counsel during pre-trial pro- Indiana Supreme Court upheld a $325,000 verdict against ceedings, workplace bullying could ‘be considered a form of a cardiovascular surgeon accused of being a “workplace intentional infliction of emotional distress.’” Importantly, the bully.” No. 49S02-0710-CV-424, Indiana Supreme Court court also found that the trial court did not err in refusing (April 8, 2008). In this case, the plaintiff Joseph Doescher to instruct the jury that workplace