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 WINTER 2016 521 BULLYING IN THE WORKPLACE: NOT EVERY WRONG HAS A LEGAL REMEDY 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.