Addressing Peer-to-Peer Bullying
Question: We have heard rumors that one of our employees is feeling bullied by another employee. Does an employee have a cause of action against an employer for workplace bullying? Is there a suggested course of action we should take to prevent bullying in the workplace to avoid litigation?
Answer: Currently, there is no federal law preventing workplace bullying, however some states have begun to implement anti-bullying statutes and many other states have introduced similar bills into the state legislature.
What is Workplace Bullying?
The Healthy Workplace Campaign, an organization dedicated to promoting anti-bullying laws, defines workplace bullying as repeated health-harming mistreatment through verbal abuse, actions that interfere with work being completed, or offensive behaviors that are threatening, humiliating or intimidating. Bullying is not refined to loud and overt aggressive acts. It can and does take many forms including gossip, threats, unfair criticism, teasing and denying credit to a deserving employee. In addition to the negative effects that bullying can have on an employee, the employer will often also incur costs as a result of bullying, including litigation, turnover, absenteeism, low morale, poor customer service, higher healthcare costs, retaliation and an unpleasant workplace that restricts productivity.
While workplace bullying is not covered per se by federal laws, bullied employees often seek vindication for their poor treatment at work through the legal process. They do so by couching their bullying claims as claims under the Title VII of the Civil Rights Act, the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"), resulting in significant costs to employers. Most commonly, an employee will bring a hostile work environment claim stating that the bullying actions were motivated by the employee's status in a protected class, such as religion, race, color, age, disability, sexual orientation, sex and national origin. State laws often add further protected classes, such as protecting against discrimination based on marital status, family status, caregiver status, genetic predisposition, gender identity or expression, or ancestry, thus increasing the potential claims that a bullied employee can allege the bullying behavior is connected to.
Bullied employees may also resort to bringing an intentional infliction of emotional distress claim. Intentional infliction of emotional distress is defined as "extreme or outrageous conduct [which] intentionally or recklessly causes severe emotional distress to another." Restatement (Second) of Torts § 46(1). However, employees often have difficulty showing that the actions were severe or outrageous enough to qualify for protection. Regardless of the likelihood of success on a hostile work environment or intentional infliction of emotional distress claim, the process of defending such claims can be very costly for an employer.
While federal law has yet to protect workplace bullying, three states have so far enacted anti-bullying laws. Two of the three states, Utah (Utah H.B. 216) and Tennessee (Tenn. S.B. 2226), have enacted workplace bullying laws that focus solely on public employers. However, in 2015, California enacted a law aimed at workplace bullying for all employers with more than 50 employees. CA A.B. 2053. The California law requires all covered employers to add anti-bullying training into the current required sexual harassment training. The commonality between these three laws is that none have created a private right of action for an employee against the employer to seek damages for workplace bullying, but instead require that employees be made aware of workplace bullying through training. Additionally, Florida, Hawaii, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Vermont, West Virginia and Wisconsin currently have workplace bullying bills making their way through the state legislature. Accordingly, employers should stay abreast of workplace bullying laws in the states in which they operate.
How should employers protect themselves?
There are many actions that an employer should take in order to mitigate the potential costs of workplace bullying. The first step is to implement a workplace anti-bullying policy stating that such bullying may lead to discipline or termination. This policy should be clearly stated in the employee handbook, on the company's intranet, and anywhere else that company policies are commonly found. Enacting a workplace anti-bullying policy will also reduce the threat of litigation, but, if implemented appropriately, it should reduce and/or eliminate future bullying thereby resulting in increased productivity and higher employee morale.
Once the workplace anti-bullying policy is in place, the employer should reiterate the seriousness of the policy by conducting annual training, which can often be included as part of standard harassment training. During the training the employer should clearly demonstrate the differences between bullying an employee and aggressive management techniques.
The policy and the training should lay out a process for reporting bullying behavior in such a way that the reporting employee does not fear retaliation. Once reported, the employer should have an internal plan to investigate and handle all instances of bullying in a consistent manner.
When faced with an instance of bullying couched as a hostile work environment claim, an employer may protect itself by offering proof that it (1) exercised reasonable and prompt care to prevent and correct the hostile work environment; and (2) the complaining employee unreasonably failed to avail themselves of the preventative and corrective opportunities provided by the employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). By taking the recommended actions of implementing a workplace anti-bullying policy, conducting an annual training, having a secure method for reporting bullying instances, investigating all complaints in a similar manner, and taking swift remedial action when warranted, the employer will have a greater likelihood of success against a hostile work environment claim and any other bullying-related type of claim that may be brought.
Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Ian F. Plummer, resident in Proskauer's Newark office, assisted with this article.