Proposed Laws Attempt to Stop Bullies in Their Tracks

Thirteen states have considered "healthy workplace legislation," which would prohibit bullying in the workplace. Although no state has so far passed the proposed statutes, they would prohibit employers from creating or permitting "abusive conduct" or an "abusive work environment," according to Pepper Hamilton LLP, a multi-practice law firm (www.pepperlaw.com).

"The various proposed laws define 'abusive conduct' broadly as conduct of an employer or another employee that a reasonable person would find hostile or offensive," says Susan K. Lessack, a partner with Pepper Hamilton's Labor and Employment Group.

The states that have considered healthy workplace legislation are: New Jersey, New York, Connecticut, Vermont, Washington, Oregon, Montana, Hawaii, Oklahoma, Kansas, Missouri, Massachusetts, and California.

If workplace bullying laws are enacted, employers will face lawsuits raising legal issues that have been easily dismissed under current laws against discrimination, according to Lessack. "For example, it is well-settled law that discrimination laws do not impose a 'civility code' on employers, and that mean-spirited behavior in the workplace is usually not unlawful if it is not based on an employee's protected class, such as his or her gender or race."

"Under the proposed workplace bullying laws, such behavior may be actionable. The proposed laws would invite courts and juries to scrutinize the way people treat each other at work. While respectful treatment in the workplace is a laudable goal, should it be legally required?" Lessack asks.

As Incentive reported in May (see www.incentivemag.com/bully), a recent survey by Zogby International estimated that 37 percent of employees had experienced bullying at work. When made aware of the cases, employers in 62 percent of them ignored the problem or made it worse, according to Zogby.

"Workplace bullying generally refers to harassment that is not necessarily based on an employee's protected characteristics, like harassment based on a protected characteristic, bullying can adversely affect physical and emotional health. In fact, some researchers concluded that workplace bullying actually has more severe consequences on employees than sexual harassment. But, unlike harassment based on a protected class, bullying may not be prohibited by law," says Lessack.

A recent Indiana decision highlights the potential costs of allowing workplace bullying to go unchecked. The Indiana Supreme Court, in Raess v. Doescher, formally acknowledged the existence of workplace bullying when it affirmed a ruling in favor of a hospital employee who sued a surgeon claiming emotional distress and assault.

The case arose out of an incident in which the defendant, a cardiac surgeon, was angry with the plaintiff over his reports to the hospital administration about the defendant’s treatment of other perfusionists (technicians who operate heart/lung machines). The plaintiff sued the surgeon for assault and intentional infliction of emotional distress. At trial, the plaintiff called a workplace-bullying expert, who opined that the surgeon was a 'workplace abuser.' The jury found in favor of the plaintiff on the assault claim and awarded damages of $325,000.

"The surgeon appealed, arguing, among other things, that the trial court had erred in refusing to instruct the jury that workplace bullying was not at issue in the case. The Indiana Supreme Court disagreed, explaining that workplace bullying could be a form of intentional infliction of emotional distress—which was still part of the case at that point," Lessack says.

"It is too soon to predict whether the case presages a trend of workplace bullying claims," says Lessack.

"The difficulty for employers is that different employees subjected to the same conduct will often perceive it differently," adds Lessack. "What one employee feels is bullying may not trouble another worker. Where is the line between a supervisor being demanding and being abusive?"

Pepper Hamilton's Lessack recommends that employers take the following steps to minimize the risk of workplace bullying claims:

- Employers should have policies in place that make it clear bullying behaviors will not tolerated.

- The employee handbook should emphasize that workers must treat each other with respect.

- Employers should encourage employees who feel bullied to report the conduct, much the same as discriminatory harassment complaints are handled.

- Bullying complaints should be treated seriously and investigated. Depending on the results of the investigation, employers should take appropriate remedial actions, if warranted.

Editor's Note: For more on rising bully-in-the-workplace trends, read "Big Bully in the Workplace."