Human Resources News & Insights

New type of lawsuit: Bullying

What happens when one employee assaults another – verbally? It’s tricky for employees to win cases alleging hostile workplace environments when no form of discrimination is involved. But that might be changing.

What consitutes assault and intentional infliction of emotional distress – better known as “workplace bullying?”

A recent court ruling shows that the bar is set pretty low when it comes to proving that an employer has a worker who engages in bullying.

A perfusionist (a type of medical technician) at a hospital filed a civil assault claim against a surgeon who publicly berated him in an operating room.

The plaintiff said the surgeon was angry at him because of reports to hospital administrators about the way the doctor treated other perfusionists.

In testimony, the perfusionist said the surgeon aggressively and rapidly advanced toward him, screaming and swearing. He felt the doctor was going to hit him but stopped short, saying, “You’re finished. You’re history.”

A jury awarded the plaintiff $325,000. But the surgeon appealed on the grounds that the jury was not instructed that “workplace bullying” wasn’t an issue for the jury’s consideration.

The Indiana Supreme Court disagreed, saying “It is an assault to shake a fist under another’s nose,” even without striking a person.

The court also said, “The phrase ‘workplace bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury.”

Oddly enough, the attempt to keep the hot topic of workplace bullying out of this case had just the opposite effect. The court’s decision has drawn the attention of many in the legal community as an acknowledgment by the court of workplace bullying as a phenomenon and a legal term. Some are calling this the first real court case about workplace bullying.

The Indiana court even provides a partial definition of workplace bullying in its written opinion: “Workplace bullying could be considered a form of intentional infliction of emotional distress.”

New laws could bring changes

In this case, the bullied person sued his co-worker instead of his employer. That was likely a decision made by the perfusionist’s legal counsel, because when faced with lawsuits charging hostile work environments, courts look for hostility based on race, religion, gender, age or another category protected by civil rights laws.

However, employees may soon be able to sue their employers instead, even when there’s no discrimination involed.

At least 13 states are considering anti-workplace-bullying laws, often called “healthy workplace” bills.

The laws would allow people to sue their employers for bullying or offensive behavior even when the conduct isn’t connected to discrimination.

Employment lawyers predict such laws would produce a huge number of bullying lawsuits.

And plenty of people think they’ve been bullied at work. A Zogby poll conducted for Workplace Bullying Institute shows 37% of U.S. workers believe they’ve been bullied at work.

Most of the bills introduced are based on a draft by law professor David Yamada. His version would not only allow employees to sue over bullying bosses. It would also premit lawsuits in cases of backstabbing and sabotaging by co-workers.

Yamada’s draft bill also provides encouragement for employers to handle bullies. The bill says employers have a defense if they use reasonable care to prevent or correct the problem and employees fail to avail themselves of those measures.

No one likes a workplace bully. But what can companies do about them? What can you do as an HR professional? Tell us about experiences you’ve had, or comment about the Indiana case or the impending laws.

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  • http://www.cpiproducts.com Melony Leach

    I believe the possibility of having “healthy workplace” laws in effect would have a positive impact for the most part. Although it will surely bring on more head aches for HR. It will also bring out the “sue happy” individuals and certainly more companies will face lawsuits. I have personally experienced and seen “work place bullying” by bosses that believe they were above the “law” so to speak. Since most states are “at will” if you are being bullied, go get another job. Just because you work for a company and your boss/owner is a jerk doesn’t mean you have to take it. When I once worked for an individual that cursed and yelled at me, I picked up my purse and left. I wound up getting unemployment because it was decided that it was “good cause for reasons connected with work”.

    At the company I currently work for we already have “anti bullying” policies in place. It basically falls under our harassment policy. It is not tolerated here for no reason and does not have to be one of the protected classes.

  • http://notreally.com Outraged

    Soon you will be sued for looking at someone in a way they perceive as not happy and nice.

  • http://wchcd.org Linda

    Workplace “bullying” “mobbing” “harrassing” is becoming more noticeable in our facility. We have disciplined immediatley for this type of violation to our “code of conduct policy”. I am currently providing training for all supervisors regarding this type of behavior, how to recognize it, what are the appropriate steps to take, how to controll the atmosphere in their departments and how to prevent reoccurrance of such behavior. After a full investigation, we recently disciplined an employee for derogatory remarks to fellow staff; though we had cautioned the employee about any form of retaliation the employee began making negative remarks about his supervisor to fellow staff and to another department; at that point we placed the employee on paid administrative leave until further investigation of this second offense (another violation addressed within our code of conduct policy). This type of divisive behavior caused the employee to end up with two written warnings in his file, since these two occurrances the employee has been doing very well. We consider this type of behavior unacceptable.

  • Toni Laich

    As I work for a company owner who is notorious for calling his employees names, throwing shoes, swearing and bullying, I am delighted to see that the courts and states are moving in on workplace bullying.

    I have to take exception to Ms. Leach’s comment “you don’t have to take it.” If you live in a rural community, the rate of pay is good and you have a family to support just walking out is not an option.

    For this reason, I do not believe that ownership, money or position affords anyone the right to treat hardworking individuals as if they were your playthings. We use the expression here that the company is the boss’s sandbox. Some days you’re the favorite toy and get to stay in the box while other days you are cast aside at his whim. There are times when his actions put the company at risk and those of us charged with protecting the company meet unreasonable challenges. Additionally, others have taken his lead and treat people with disdain and rudeness. He seems most approving of these individuals. The rest of us just shake our heads and try to cope.

    The more anti-bullying information released by the media–the more likely this monster will realize that he must change his behavior. He’s certainly, more than once, threatened the well-being of individuals who work for him. Witnesses to these events are also traumatized.

  • Dory Scott

    I believe “healthy workplace” laws are just more legisaltion to benefit lawyers. There are too many frivolous law suits as it is. Grow-up. If you don’t want to be bullied, then find another place to work. Management will soon get the picture that their bully is causing them problems keeping good workers and will act accordingly.
    No, we’ve got too many “social” laws now and too many frivolous law suits. This costs us, the taxpayers too much in court costs, etc.

  • Jerry

    Here is another Pandora’s box. “Intentional infliction of emotional distress” says that the intent of the person was to cause harm. It seems like intent would be a difficult thing to prove and certainly emotional distress is not an objective or consistent threshhold to observe. If the court felt that there was an assault present, why not base the case on that rather than some ill-defined guess at intent or, even worse, a shifting standard of emotional distress.

  • Kerri

    Smart employers already build codes of conduct into their policies and can easily enforce them. Employers are being forced to become adult day care providers. Let societal movements prevail in situations like this. Grow up people. Life isn’t easy and is sometimes downright difficult. Stop expecting others to make your life easier. Courts and legislatures need to stop sticking their fingers in where they don’t belong. On the other hand, this sort of thing is a boon for the HR profession, making us more necessary than ever before.

  • Anne

    What do you do if the co. owner is the one screaming, yelling, getting two inches from your face with spit flying out amongst the obsenities? I am a very compete employee who out sells everyone and does the job completely. I am female, a mom, a wife and a Christian. I do not deserve this yet I am brought to tears and threatened almost daily. I am sick inside but I cannot leave.

  • Rich Sherman

    The key to making this kind of legislation ultimately work is how later courts are going to interpret the standard of proof necessary for employees to make a credible allegation. I don’t think simply treating it as a tort will be enough, as what happened in Indiana. Even though an allegation won’t (and shouldn’t) be tied to a protected group (i.e., a civil rights allegation), I think we’re going to have to adopt at least some of the same standards developed for harassment prevention. Chief among these standards will be the “reasonable person” or “objectivity/subjectivity” test.

    Without it, this way lies madness. Employees and aggressive plaintiff attorneys might choose to litigate about behavior that isn’t patently offensive, abusive or threatening, but merely rude or boorish or unpleasant. Internal complaints (and, as a result, lawsuits) will spiral out of control, and any true remedial benefit may be lost as employers simply seek to defend themselves against litigation with a low and variable burden of proof for plaintiffs instead of being focused on what’s really the point: making their workplaces safer and better. This is why civil rights legislation, despite many employer advocacy groups’ complaints, has been having and continues to slowly have success over the decades at reshaping and bettering our workplaces.

    Besides, adopting similar standards will, I believe, enable both employees and employers to more easily adapt to and implement this new (for the US) area of employment law.

  • Donna

    What worries me is the growing trend of making employers “pay” for all manner of things over which they have little control. An employer can’t fire someone with emotional disorders if they are covered by ADA, yet employers will now be able to be sued by another employee if they are the recipient of an outburst by the former. An employer can already be sued if they don’t hire someone based on the results of personality tests, yet again the new legislation would hold the employer accountable for the behaviour of someone they may not have hired in the first place had they been able to use the test’s results. Or a normally rational person who is under extreme stress due to a family situation may have a completely uncharacteristic outburst and, instead of it being recognized as the anomoly it is, it will now become the basis of a lawsuit. This is added to the increasing burden employers face because of states that want to shift the burgeoning cost of uninsured adults to employers by requiring them to provide insurance coverage for the adult children of their employees up to age 25 or 26. How can this possibly be the “duty” of an employer? With the way the pendulum is swinging, the increasing burden on employers is eventually going to force them to start cutting back on staff and benefits in general — and what will that have solved?

  • Scooter

    Many employers do not realize how manager’s treat their employee’s. Once it is addressed to HR or another supervisor it seems they all like to look the other way or they think the individual is “too sensitive”. Taking legal steps may not be the answer but finding an outside source for the individual to get guidance would be an intermediate step before any legal action is taken. A third party mediator can sometimes help identify what the issue may be before we tie up the court system with these types of issues. If the matter is not resolved after a period of time then it could be moved to legal action. We all go through bad times and if the situation was not normal it may be worked through rather quickly, others may need more formal training to understand their behavior.

    I have been the victim of “workplace bullying” due to someone else feeling I was a threat to their position. When I addressed it with the HR director, not a thing was done, but then the individual who acted in this manner was an HR Generalist who worked for him. You would think they would know better. I lived with this for over five years and it made my life miserable. My credability, confidence and energy was affected because of things this person did and said to me. (The nasty glares and rude statements and sabotage were endless.) I did not know what to do since I had already gone to the head of HR and he did not want to hear it and did not act on it. I would have liked to take this to someone outside the company to get guidance on how to handle this but I did not know what action I could take and I really could not afford an attorney – nor did I want to jeopardize my position. Jobs have not been plentiful in this area.

    I would like to see an approach to help change peoples behaviors rather than hitting them financially. The financial impact may not change their behavior and other people will eventually be affected by them as well.

  • Rich Sherman

    Anne:

    My heart goes out to you. What a horrible situation. The first thing you to do is to make a painful decision about whether continuing to accept the owner’s behavior is a “price you can pay.” This is an intensely personal and family decision, and I have worked in the field of EEO and employee relations too long to presume to tell you what’s best for you and your family, or to engage in moral preachings regarding a very real and painful situation.

    That said, if you decide that you can’t pay the “price” the company owner is extracting from you for the purported “privilege” of working for him, you have two difficult choices:

    The first can be described as “flight.” Simply put, begin the process of updating your CV/resume, and start looking. This will be hard, especially if you are a talented and desirable employee, as prospective employer will want to check your employment history and references, and will be AT LEAST concerned if you decline to permit that (i.e., sign a waiver and release). Moreover, your current boss sounds like the type that may fire you if he/she finds out that you are looking. You will have to discuss with your family a plan if this is your choice, and you are fired as a result. This option has the real benefit of obviously finding a better employer who doesn’t engage in outrageous behavior.

    The second can be described as “fight.” This is also an option that may be filled with nothing but fear and anxiety, perhaps for months or years as you as an employee (or former employee if your boss retaliates) seek redress. How to fight? It depends. Can any of the owner’s behavior be attributed to a protected class? Whe he/she yells at you and invades your space, are the insults thrown based on gender, or age, or race, or ??? In any event, and especially in light of the news in this topic, I’d strongly suggest that, if this is your choice, get advice from an attorney…even if you have to pay for it (although many won’t charge for an initial consultation). Not just any attorney, but one specialized in employment and labor law. And one you have confidence in and get along with. Looking for an attorney can be similar to looking for a new shirt; find one that is comfortable and fits you right.

    Normally, I’d be suggesting that you first pursue an internal complaint process (if one is available) BEFORE you even think about talking to an attorney. But if the person you speak of is truly the sole owner of the company (not corporation), that’s not really a practical option.

    Last piece of advice…somewhat obvious, but must be said: THINK. What do I mean? As painful as it is, and irrespective of whether you choose flight or fight, you must use whatever tools you have at your disposal to keep your wits about you, remain calm, and process the decisions you make in the most objective manner you can. If you react emotionally, especially directly to your current boss, you will likely make a mistake that will be some kind of setback. So think about your decisions. Once a decision is made, think about how to implement your choice. Think about what resources you have, and what you will need. And lastly but just as importantly, and regardless of whether you stay or go, don’t give your boss the pay-off he/she is looking for. Bullies often act the way they do because they are looking for a reason to justify/continue their behavior. Don’t give it to them. Only let your emotions go with those you know you can trust.

  • Rich Sherman

    Jerry:

    Excellent point, but don’t get too hung up on the use of the word “intentional” in this area of law. It’s not the same use as in criminal law. Yes it’s a very important element, but many courts will just examine the facts to determine if there is a causal relationship between an alleged action and its effect (harm), and if the respondent (or perpetrator, if you prefer) had control (and if so, to what degree) over that relationship. In most cases involving human behavior, this is often obvious.

    For employers, that wouldn’t be enough to be held responsible. Thus my first post on “borrowing” from established civil rights case precedent in employment decisions. Employers would have to have real or constructive knowledge of the behavior, and failed to act, before responsibility (and liability) attaches.

    Heck, for large employers, this is yet another reason to have internal EEO/employee relations specialist on staff. So yeah, as Kerri said, it means more demand and more work for us HR types.

  • Michele Villados

    A number of interesting arguments, both for and against legal remediation for bullying, have been made here. One point that hasn’t been touched on, however, is that current laws against discrimination and harassment have created a loophole that essentially makes it legal for people to engage in workplace harassment–as long as it isn’t based on a protected characteristic. While the laws may have been enacted to provide extra protection for certain groups of persons considered at greater risk for disparate treatment, I’m certain they were not intended to condone harassment in other forms. Unfortuantely, by failing to recognize the harm caused by “legal” harassment, employers have fueled the push for legislation to make workplace bullying illegal. A clear policy that defines an employer’s expectations for professional conduct by all employees in all instances, investing someone or some group with the authority to enforce the policy for all employees (including supervisors), and creating a means for employees to report abuses to someone other than their immediate supervisor would go a long way towards side-stepping problems before they have a chance to start, regardless of how the courts weigh in.

  • http://www.lyngsogarden.com Hal

    It’s easy to criticize the possibility of frivolous lawsuits until you’ve actually worked for a bullying screamer. Management can usually handle the out-of-control employee, but it does a very poor job of reigning in out-of-control managers and executives. Fortunately, I now have the privilege of working for a company whose philosophy requires treating people with respect. Silicon Valley was full of screamers during the Dot Com era. Thank God, many of them have gone back home and are now delivering pizza.

  • Shannon

    I think having bullying laws in place is a wonderful idea. I work for a large company that has ethical procedures in place for the employee to go to if they feel that their rights have been violated, and they are promised no retaliation. I have used these channels, and the retaliation has run rampant within my department. Our supervisors are so afraid of our manager, that they have started to mimic his behavior.

    Several people have complained using company channels, and most of us have had some sort of backlash due to bringing attention to our problems. However the most that happens is a slap on the wrist to management and he continues on his merry way.

    I am a good employee. They pay me to do a job and I do it well, consistently and with the highest results in my department, yet I am always getting into trouble for some perceived incident. I am not a sue happy person, and I have tolerated my managers behavior for over a year. A year in which I have looked for work elsewhere, but unless I am willing to move out of state, there is nothing available here.

    When you have exhausted the channels your work has set for you, complied with every thing that you were told to do, and you are still being harassed? What option are they leaving you with other than suing?

  • Renee

    I, along with several other individuals, have been harassed and bullied in our workplace for over two years. I have been brought to tears several times, and I am currently looking for other employment. The screaming, harassing, bullying, and just plain torture is out of control. The sad thing about all of this is that I love my job. I like what I do, but the constant ‘bullying’ and lack of administrative support has left me no alternative. I hope for the sake of everyone else involved in our situation and others that there is help in our futures!

  • Sam

    Anne:

    I can relate to your situation.

    I didn’t call it by name at the time, but I was subjected to workplace bullying for nearly 7 years from the owners of the company I worked for. It started out slowly and the escalated. I was not a bad employee. In fact, I was one of the top producers. Motivation by fear and intimidation was the way they ran their business. For the longest time I had the mentality that I needed my job, it was a fact of life in the workplace and I needed to just suck it up and take it. But eventually it started to effect every area of my life. I was no longer happy and friendly and optimistic as I had always been. Friends and family didn’t want to be around me because I was a “downer”. I was now pessimistic and stressed and the pit I had in my stomach never went away. Not even on weekends. No one should have to endure that in the workplace. It is not healthy and it is not right or ethical. I finally made the decision that I valued myself even if my employer did not. It was not easy building up what had been torn down for so long, but I did it. I have been blessed with a fantastic job for a fantastic company and I am happy and optimistic once again. I was afraid at first that things would change when the honeymoon stage was over, but I have been with this company for quite some time and I can’t wait to get up and come to work every day. For those of you who are still struggling with this beast, let me encourage you to stand up for yourself and remember that you are valuable and even if your current employer doesn’t appreciate you, somewhere out there is an employer who will. There can be a light at the end of the tunnel.

  • T M

    I think you either get a back bone or move on. When will the courts stop bullying the american public. Does a person have the right to sue because he/she doesn’t have the fortitutde to address his/her own issues? Come on people where does it all end?

  • Rich Sherman

    TM:

    Some people stand up for themselves and are successful at it. Some do, and are unsuccessful. Some, because of a variety of economic, social, personal, or even political competing pressures, don’t or can’t stand up. But that’s not really the point, is it?

    Your question, “Does a person have the right to sue because he/she doesn’t have the fortitutde to address his/her own issues?” presupposes that the issue an employee faces is an individual one. If that presupposition were backed by evidence, I might agree with you.

    The problem is that bullying is never an individual issue; there are always at least two people involved. It is those two people (at least) that need to be given the opportunity to work it out. Sometimes, if both parties are rational, reasonable people, they are successful on their own.

    However, the whole topic of bullying involves behavior (even if just perceived behavior, to give meaning to what is apparently your position on this issue) that is NOT rational or reasonable. The reality unfortunately is that a person, for whatever their own motivations, that uses leverage in the workplace to intimidate, ridicule, threaten, or actually injure another (usually – but not always – a person subordinate to them) is also not a person that can self-recognize the impact and consequence(s) of their behavior – on others or even themselves. That same person – if the facts show they did what they were accused of doing – would generally attempt to mitigate or wholly evade responsibility for their actions (either because they don’t see them as wrong and are thus justified, or knew they were wrong and were motivated by something else).

    Thus the need for law.

    If everyone could resolve their “own issues,” there wouldn’t be any need for civil (or, for that matter, criminal) law. There would be no need for enforcement. Everyone would act collectively to the betterment of both themselves and others. The sum of human history, and the very foundations of civil society in developing from the state of nature, teaches us that such is not the case. People hurt other people, in as many different ways as there are different societal, economic, political and personal relationships.

    Or perhaps you know this, and were merely having a visceral emotional reaction to a topic you chose to make a moral judgment on, for whatever your own motivations?

  • http://mef9001@nyp.org Michele

    I think that there is a lot of merit to bulling in the work place and to have a law or more tools to stop it will assist us greatly. I also believe that a lot of people in leadership roles suffer from this kind of behavior from people they report to (like a VP) and also for us in the HR department, we are not exempt from receiving this behavir from the people we report to as well. A lot of times people don’t report it or do not say anything because it would be politically dangarous for your career.

  • Valerie

    This is an excellent discussion. There is hard evidence that workplace bullying exists with one out of six employees having been bullied in their lifetime. THere is the subjectivity of the target’s experience as well which is the challenge of law makers: could people take advantage of these laws? Currently, there are laws in other countries with regard to workplace bullying. Quebec and Saskatchewan in Canada have passed provincial laws and many countries have laws as well. Ideally, companies are to create an environment of a respectful workplace in which good relations can exist. Not all companies have policies, and the ones that do, very few have a means of accountability and protection in order to ward off such behaviors. Severe workplace bullying does occur: work overload, shifting of priorities without the resources to complete tasks, being left out of important information loops, shunning and direct put-downs and over-all being ignored are just some examples. Without naming this as workplace bullying we create confusion. Valerie Cade is a world-wide expert on workplace bullying and her resource is http://www.bullyfreeatwork.com for free resources for all aspects of workplace bullying.

  • Jennifer

    I currently am being “bullied” at my current job. I was finally forced to seek employment elsewhere. One more week and I’m done, and it can’t be soon enough. Even after giving my two week notice, I’m still being bullied by this person. Constantly listening to negative comments about myself and other co-workers, unethical and unprofessional behavior by this person and going against company policies is just to much. The corporation that I work for is the one who hired this person after all, what voice do I feel I have? None. The sad part is that I really love my job, and put my heart and soul into my work, and because of one person, I know longer have the enthusiasm and motivation to move forward. I come home every-night in tears. It’s a matter of not being able to sleep at night and feeling ill. I am a major contributor in my families income, and with the present condition of the economy the decision to find employment elsewhere did not come easy. I feel there should be some legal options or even policies implemented in today’s work place so that myself and others do not have to be put through this same kind of treatment and stress.

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