Office Bully Takes One on the Nose: Developing Law on Workplace Abuse: New York Law Journal

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Office Bully Takes One on the Nose: Developing Law on Workplace Abuse

Jason Habinsky and Christine M. Fitzgerald
New York Law JournalJanuary 21, 2011
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Jason Habinsky


Christine M. Fitzgerald

For years the law has been stacked against an employee claiming that
he or she was abused or bullied by a co-worker. Generally, the law
offers no protection to such a victim as long as the alleged bully can
show that his or her actions were not motivated by the victim's status
as a member of a protected class. Currently, there are no federal,
state or local laws providing a cause of action for an individual
subject to a non-discriminatory abusive work environment. However,
with bullying becoming front-page news across the nation, it is just a
matter of time before the law adapts. Since 2003, 17 states have
considered legislation designed to protect employees from workplace
bullying. Indeed, this year New York came very close to a floor vote
on a bill that would provide a cause of action to an employee
subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary
given the prevalence of abusive conduct in the workplace. The proposed
New York legislation noted that "between sixteen and twenty-one
percent of employees directly experience health endangering workplace
bullying, abuse and harassment" and that "[s]uch behavior is four
times more prevalent than sexual harassment."

Employers, however, should be wary of such legislation. Anti-bullying
legislation would allow employees having nothing more than ordinary
disputes and personality conflicts with their supervisors and co-
workers to threaten their employers with litigation. Surely some of
these disputes would end up in court even though they wouldn't rise to
the level of actionable bullying. Moreover, it is hard to conceive how
an anti-bullying statute could avoid being vague and overbroad when it
comes to defining what sort of behavior is unlawful.

Existing Legal Framework

Currently, employers have little to worry about with respect to facing
substantial liability as a result of workplace bullying. The existing
legal framework provides very limited recourse to an employee who is
bullied at work. While some types of harassment are outlawed under
Title VII of the Civil Rights Act of 1964, Title VII's reach is
narrow. Title VII prohibits employment discrimination based on an
individual's race, sex, color, religion, or national origin.

It is well-settled that "Title VII does not prohibit all verbal or
physical harassment in the workplace" but rather only discrimination
because of race, sex, color, religion or national origin. Oncale v.
Sundowner Offshore Services Inc., 523 U.S. 75 (1998). See also,
Marshall v. NYC Board of Elections, 322 Fed. Appx. 17, 18-19 (2d Cir.
2009) (noting that plaintiff's "allegations that her supervisor
displayed a violent temper, stood over her with clenched fists on
several occasions, disparaged her educational background, and engaged
in crass behavior are troubling. But Title VII is not a 'general
civility code for the American workplace'; it prohibits only
harassment that is discriminatory"); Bush v. Fordham University, 452
F.Supp.2d 394 (S.D.N.Y. 2006) (allegations of harassment included that
co-worker altered plaintiff's timesheets, threatened to call security
on her for no reason, and failed to give her phone messages did not
amount to actionable harassment); Jowers v. Lakeside Family and
Children's Services, 2005 U.S. Dist. LEXIS 30977 (S.D.N.Y. 2005) ("It
is quite clear that Plaintiff did not enjoy the most cordial of
relationships with either his co-worker or his supervisor. Such
discord, however, is not a valid ground to assert a hostile workplace
claim under Title VII…Title VII is not designed to serve as a code of
civility to govern workplace professionalism"). Therefore, even where
the workplace bully creates an uncomfortable or even unbearable work
environment for co-workers or subordinates, this will not violate
Title VII unless such conduct is discriminatory.

Likewise, the extreme behavior that gives rise to the tort of
intentional infliction of emotional distress does not encompass most
workplace bullying. In order to prove a claim for the intentional
infliction of emotional distress a plaintiff must prove that the
defendant acted intentionally or recklessly, the defendant's conduct
was extreme and outrageous, and the conduct caused severe emotional
distress. Restatement (Second) of Torts §46.

Courts have found that extreme or outrageous conduct is "'so extreme
in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community'…but does not extend to 'mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.'" Porter v.
Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS 20627, at 5-6 (N.D.
Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional
distress claim where employee claimed that he was falsely accused of
fraud and bullied and intimidated during questioning about the alleged
fraud) (citations omitted).

Employees also have been unsuccessful in trying to fit their workplace
bullying claims into a cause of action for constructive discharge. For
example, in Aldridge v. Daikin America Inc., 2005 U.S. Dist. LEXIS
27389, at 14 (N. D. Al. Oct. 6, 2005), the court found that
plaintiff's "work conditions were not so intolerable that a reasonable
person would have resigned… [Plaintiff] may have been under a closer
watch than other…employees. He also may have been the target of
negative comments… He was not, however, forced to resign from his
job."

A recent case from the Southern District of New York illustrates the
current law's limited use in the bullying context. In Mendez v.
Starwood Hotels & Resorts Worldwide Inc., 2010 U.S. Dist. LEXIS 107709
(S.D.N.Y. Sept. 30, 2010), the plaintiff alleged that his employer
discriminated against him based on his national origin, race and
disability. The plaintiff also alleged that his employer unlawfully
retaliated against him for engaging in protected activity. At trial,
the jury found for the employer on all of the discrimination claims,
but found in favor of the plaintiff on the retaliation claim and
awarded the plaintiff $1 million in compensatory damages. The court,
however, remitted the compensatory damages to $10,000, noting that
there was no evidence that the plaintiff suffered any significant
damage as a result of the employer's actions.

The court opined that it was

convinced that the jury felt sorry for the plaintiff—as, indeed, the
court felt sorry for the plaintiff. Mendez endured an abusive
workplace and got very little sympathy or assistance from either his
employer or his union…. [A] non-discriminatory but uncivil workplace
can certainly make a person miserable. The court is convinced that the
jurors concluded that Mendez was miserable at work, having found some
basis on which to hold [the employer] liable, awarded damages that
were entirely out of proportion to any injury that was or could have
been attributed to the retaliatory [action]—but that were perfectly in
proportion to the teasing and rudeness Mendez endured at the hands of
his fellow workers and chefs….

Mendez, 2010 U.S. Dist. LEXIS at 63. Although the discrimination laws
shielded the employer from substantial liability in this case, had a
law prohibiting workplace bullying existed, the employer would have
been on the hook for the $1 million in damages as evidenced by the
court's sympathetic words regarding the plaintiff's working
conditions.

Importantly, despite the absence of a cause of action for workplace
bullying, the jury in the Mendez case clearly tried to find a way to
compensate the plaintiff for the bullying he endured. Likewise, in
Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008), the Supreme Court of
Indiana upheld a $325,000 jury verdict on an assault claim where the
plaintiff alleged that "the defendant, angry at the plaintiff about
reports to hospital administration about the defendant's treatment of
other perfusionists, aggressively and rapidly advanced on the
plaintiff with clenched fists, piercing eyes, beet-red face, popping
veins, and screaming and swearing at him." 883 N.E.2d at 794. Although
the defendant prevailed at trial with respect to the plaintiff's claim
for the intentional infliction of emotional distress, the court opined
in dicta that workplace bullying could be a form of intentional
infliction of emotional distress. Id. at 799.

Legislation Campaign

Notably, the jury in the Raess case heard expert testimony on
workplace bullying from Gary Namie, the co-founder of the Workplace
Bullying Institute (WBI), a nonprofit organization dedicated to the
eradication of workplace bullying. The WBI's Legislative Campaign
division focuses on enacting anti-bullying legislation state-by-state.
The WBI recruits state coordinators to introduce the Healthy Workplace
Bill (HWB), drafted by Suffolk University Professor of Law David
Yamada, to their local lawmakers. Thus, the campaign to pass an anti-
bullying statute begins in each state with the same HWB language,
although local lawmakers regularly make changes to the HWB as it is
introduced and works its way through the legislative process.1

The HWB provides legal redress for employees who are subjected to an
abusive work environment, by allowing employees to sue both their
employer and the alleged bully for monetary damages. The WBI contends
that the bill is employer friendly since it sets a high standard for
misconduct, requires proof of harm by a licensed health professional
in order for an individual to collect damages, and protects employers
with internal correction and prevention mechanisms from liability.

In 2003, California became the first state to introduce some form of
the HWB. Subsequently, anti-workplace bullying legislation has been
introduced in sixteen other states.2 In 2010, the New York State
Senate passed the bill.3 However, the New York Assembly Labor
Committee stalled the passage of this ground breaking legislation when
it voted to hold the bill, rather than vote on it.

The New York bill, A 5414B/S 1823-B, establishes a civil cause of
action for employees who are subjected to an abusive work environment.
The bill defines an abusive work environment as "a workplace in which
an employee is subjected to abusive conduct that is so severe that it
causes physical or psychological harm to such employee, and where such
employee provides notice to the employer that such employee has been
subjected to abusive conduct and such employer after receiving notice
thereof, fails to eliminate the abusive conduct."

Abusive conduct is defined as "conduct, with malice, taken against an
employee by an employer or another employee in the workplace, that a
reasonable person would find to be hostile, offensive and unrelated to
the employer's legitimate business interests." The severity, nature
and frequency of the conduct should be considered in determining
liability. The bill gives the following examples of abusive conduct:

• Repeated infliction of verbal abuse, such as the use of derogatory
remarks, insults, and epithets;

• Verbal or physical conduct that a reasonable person would find
threatening, intimidating or humiliating; and

• The gratuitous sabotage or undermining of an employee's work
performance.

Factors from which malice can be inferred include "outward expressions
of hostility, harmful conduct inconsistent with an employer's
legitimate business interests, a continuation of harmful and
illegitimate conduct after a complainant requests that it cease or
displays outward signs of emotion or physical distress in the face of
the conduct, or attempts to exploit the complainant's known
psychological or physical vulnerability."

The bill provides employers with an affirmative defense when the
employer "exercised reasonable care to prevent and promptly correct
the abusive conduct which is the basis of such cause of action and the
plaintiff unreasonably failed to take advantage of the appropriate
preventive or corrective opportunities provided."

The affirmative defense is not available when the abusive conduct
"culminates in a negative employment decision with regard to the
plaintiff." Further, employers are afforded the affirmative defense
that "it made a negative employment decision with regard to the
plaintiff which is consistent with such employer's legitimate business
interests." The bill also provides employees with a cause of action
for retaliation.

Remedies for an employer found liable include injunctive relief,
reinstatement, removal of the offending party from the plaintiff's
work environment, reimbursement for lost wages, medical expenses,
compensation for emotional distress, punitive damages and attorney's
fees. Under the New York bill, an employer found to have caused or
maintained an abusive work environment that did not result in a
negative employment decision cannot be held liable for punitive
damages and damages for emotional distress will be capped at $25,000.

Therefore, it appears that we may be on the cusp of a new era of
legislation and legal precedent targeted at preventing and punishing
workplace bullying. Indeed, it seems inevitable that some form of the
HWB will become law, whether in New York or elsewhere, and that once
the first state adopts an anti-bullying statute others will shortly
follow. The Mendez case, discussed above, should serve as a cautionary
tale to employers about the potential for huge damage awards should
such legislation be passed. In the interim, employers are faced with
significant uncertainty with respect to how to deal with workplace
bullying. We suggest that employers become proactive and take
immediate steps to prevent workplace bullying. This will ensure that
employers are better prepared to defend against a cause of action for
workplace bullying.

Steps Employers Can Take

There are several steps that an employer can take to address workplace
bullying. First, most employers' harassment and discrimination
policies do not cover workplace bullying. Such policies can be revised
to prohibit harassment that is based on factors other than those
protected by federal, state and local discrimination laws. Codes of
conduct and disciplinary policies should likewise be revised.
Employers can use the examples of abusive conduct set forth in the New
York bill, and other proposed legislation, as a guide for appropriate
additions to these policies.

Once these policies are revised, they should be circulated to all
employees. Furthermore, employers should take seriously any complaint
by an employee who alleges that he or she is the victim of workplace
bullying. Such complaints should be investigated promptly and fully in
the same manner as other harassment complaints. Employers also should
consider providing management training to supervisory employees in
order to cut down on complaints of bullying.

Finally, employers should have a zero tolerance policy for workplace
bullying. There is no denying that most workplaces will have employees
with different management styles and personalities, and an ordinary
dose of tension, stress and conflict. However, when conduct "crosses
the line" and rises to the level of bullying, supervisors or other
employees who engage in bullying should immediately be disciplined.
Employers should seek the assistance of counsel in revising these
policies and addressing any incidents of bullying, as well as to keep
abreast of the developing legislation and jurisprudence on workplace
bullying. By taking proactive action, employers can minimize the
impact of the workplace bullying legislation that is bound to come to
light in the near future, and in the meantime, maintain a safer and
more productive workplace.

Jason Habinsky is counsel and Christine M. Fitzgerald is an associate
at Hughes Hubbard & Reed.

Endnotes:

1. One notable exception to this occurred in Nevada. The bill
introduced in Nevada in 2009 attempted to expand the state's civil
rights code to include abusive conduct as an illegal employment
practice.

2. The 16 other states are Connecticut, Hawaii, Illinois, Kansas,
Massachusetts, Missouri, Montana, Nevada, New Jersey, New York,
Oklahoma, Oregon, Utah, Vermont, Washington and Wisconsin.

3. The Illinois Senate passed a bill that would cover only public
sector employees.

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