Bullying and Cyber Bullying in the Workplace: Is It Possible To Mandate A Respectful Work Environment Without Increasing Employer Liability for Frivolous Claims?March 2014
Last year's alleged bullying, via voicemails and text messages, of Miami Dolphins player Jonathan Martin by his teammate Richie Incognito, which caused Martin to leave the team, sparked a controversial debate over the fact that workplace bullying is not illegal under federal or state law.
A 2011 Monster Global Poll asked workers, "Have you ever been bullied at work?" Sixty-four percent of the 16,517 respondents answered that they had been bullied, physically hurt, driven to tears, or had their work performance affected, and 16 percent had witnessed a co-worker being bullied. In another 2011 study by the Society for Human Resource Management, incidents of workplace bullying occurred in more than 50 percent of companies, yet only 43 percent of companies reported having an "anti-bullying" policy in their employee manual.
Since 2003, 25 states have considered legislation and, at last count, 11 states have active bills promoting a healthy workplace environment. Yet, no state has passed legislation creating a private cause of action against an employer by an employee who is subjected to workplace bullying. The Incognito episode may prove to be the tipping point where enough public support is garnered to reverse the trend.
Bullying behavior can present in a number of ways, from face-to-face or telephone confrontation, to more passive e-mail and text messaging bullying, to more aggressive cyber bullying conducted via Facebook posts, Twitter tweets, and blogs. In order to understand the colloquial terms "bullying" and "cyber bullying," which afford no statutory protections to those victimized in the workplace, one must understand the type of harassment that is legally prohibited in the workplace.
Currently, under federal law, employees are protected if subjected to a "hostile working environment" that is motivated by their perceived or actual race, color, religion, sex, national origin, disability, genetic information or age.1 Various state and city laws may also protect employees against hostility aimed at, among other things, marital status, political affiliation, sexual preference, sexual orientation or gender identity.
Generally, in order to prevail on a hostile working environment claim, an employee needs to establish that the harassing conduct, regardless of the way it was communicated, was unwelcome, aimed at the victim's protected status, subjectively abusive to the employee, and "sufficiently severe or pervasive to alter the conditions of the [victim's] employment."2 Whether the harassing conduct is considered severe or pervasive so as to be actionable is determined on a case-by-case basis, with consideration often paid to the following factors, none of which alone is dispositive:
- the frequency and severity of the unwelcome conduct;
- whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
- whether the conduct unreasonably interfered with work performance;
- the effect on the employee's psychological well-being; and
- whether the alleged harasser was a superior within the organization.3
In evaluating whether conduct that does not result in a tangible job detriment (i.e. failing to hire, termination, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits or compensation) is nevertheless actionable, the U.S. Supreme Court has specifically noted that "simple teasing, offhand comments, and isolated incidents (unless extremely serious)" are insufficient to constitute severe and pervasive. Statutes protecting employees from hostile working environments are not meant to be "a general civility code" and, when applied as intended, should not elevate a complaint involving "the ordinary tribulations of the workplace, such as the sporadic use of abusive language . . . and occasional teasing" to unlawful harassment.4
Given these parameters, the state bills that have been introduced to provide a private right of action for workplace bullying claims -- not aimed at an employee's protected class -- provide a definition of bullying that requires more than sporadic or occasional bullying. Pending legislation has been modeled on the 2004 "Healthy Workplace Bill" written by Suffolk University Law School Professor David Yamada. His definition of unlawful abusive workplace conduct includes "repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee's work performance; or attempts to exploit an employee's known psychological or physical vulnerability.5 Similar to the type of hostile work environment that is protected by statute, workplace bullying will need to be "severe and egregious" before giving rise to an actionable claim. A 2007 study conducted by the Workplace Bullying Institute reported that the workplace harassment sought to be prevented by this type of legislation is four times more prevalent than the hostile working environment harassment currently proscribed by statute.6
Healthy Workplace bills do not address the various ways one can be bullied and, presumably, if the conduct meets the definition of bullying it is irrelevant whether one is being bullied face-to-face or electronically. However, it is conceivable that certain types of cyber bullying may be difficult to identify, and to impose employer liability in those situations may be grossly unfair. For example, a bully can sabotage or undermine a co-worker's work performance by stealing the victim's password and pretending to be the victim in email communications, or by posting defamatory statements about the employer or changing the victim's online profile to include sexual, racist or other inappropriate posts. Similarly, a co-worker can spread rumors, lies or gossip about the victim through websites or blogs while maintaining anonymity. As a result, a workplace bullying law should avoid employer liability in situations where the technologically sophisticated cyber bullying simply cannot be prevented.7
While few may dispute that bullying of any nature can be destructive in the workplace, presently employees are only afforded protections from the most egregious kinds of abuse. For example, an employee who is a victim of an assault (an intentional act by one person that creates an apprehension in another of imminent harm) or battery (an intentional act causing harmful or offensive contact with another) in the workplace may pursue criminal prosecution under most state penal laws, or civil recompense in jurisdictions that recognize a private right of action for assault and/or battery. In addition, while the common law tort of intentional infliction of emotional distress exists in many states, many courts have been reluctant to find those claims sustainable in the workplace.8 Both federal and state courts have noted that "[i]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress."9 Similarly, an employer who knows of an employee's propensity for bullying and does nothing to prevent or stop it before it results in actual harm, could be held liable in states that recognize claims against an employer for negligent hiring or supervision (to the extent these claims are not preempted by worker's compensation statutes).
No state, however, has enacted the kind of sweeping legislation that is directed at eradicating intimidating, humiliating and/or threatening conduct by a co-worker or conduct aimed at sabotaging and/or undermining another's work performance, all of which can have a debilitating effect on the victim. Indeed, people who are bullied at work have been found to experience stress and anxiety which can result in depression, panic attacks, digestive problems and insomnia. Moreover, bullying can result in significant consequences for employers, such as:
- Reduced efficiency, productivity and profitability
- Increased absenteeism and sick and medical leave
- Increased employee turnover resulting in additional recruitment costs
- Poor morale, erosion of employee loyalty and commitment
- Increased workers' compensation claims
- Adverse publicity and negative public image
- Legal costs incurred defending workplace bullying claims (even if such claims are found not be actionable)
Enacting a statute providing a private right of action for bullied employees would likely reduce the incidence of bullying and increase employer awareness of the necessity to prohibit such behavior. However, challengers to such legislation have been strident in their opposition; they fear such a statute would subject employers to a barrage of frivolous lawsuits and threats.
Indeed, throughout the country, employees already have a great deal of leverage against justifiable adverse action being taken by an employer. Too often employees unjustifiably claim that adverse action being taken against them is discriminatory in order to reverse the action, receive severance or increase the amount of severance being offered. Many employers are therefore already reluctant to take adverse action against an employee in a protected class without considerable documentation, even though the action being taken is entirely unrelated to such employee's protected class.
Moreover, opponents fear that legal regulation of workplace bullying will open a floodgate of employee complaints about conduct that does not amount to bullying, and is likely present in any work environment. Such conduct includes criticism of performance, discourteous remarks or acts of frustration, differences in opinion, insensitivity to work demands, and disappointing performance reviews. Accordingly, workplace bullying must be clearly defined to ensure it does not prevent the proper exercise of managerial authority, including decisions relating to job duties, workloads, deadlines, transfers, reorganizations, work instructions or feedback, evaluations, performance management, and/or disciplinary actions.
Indeed, Prof. Yamada's examples of bullying behaviors sought to be regulated by law demonstrate the potential overreaching effects of legislation. He includes hostile glares and other intimidating non-verbal behaviors, shouting, exclusion and the "silent treatment," excessively harsh criticism, and unreasonably heavy work demands. Legislation that makes this type of behavior illegal will hamper an employer's ability to conduct business, and may require constant policing of employees' interactions.
While many of the existing "healthy workplace" bills include safeguards designed to weed out frivolous claims, these protections are not foolproof. For example, an employer can escape liability by exercising reasonable care to prevent and promptly correct bullying behavior, and if the employee fails to take advantage of preventive or corrective measures provided by the employer. However, since the proposed legislation allows for attorneys' fees, it is not unlikely that an employee will locate a lawyer to bring or threaten to bring an action for a claimed statutory violation. Thus, there is nothing in the statute that can conclusively prevent an employee from making false claims or exaggerating a benign employee conflict to fit within the statutory definition of workplace bullying.
This is not to say that pervasive and severe workplace bullying, especially when aimed at sabotaging, intimidating, threatening and/or belittling a co-worker or subordinate, should not be prohibited conduct by employers. Given the potentially damaging effects of workplace bullying to an employer's business, employers would be well served to distribute and enforce a written code of conduct that specifically defines and prohibits workplace bullying, encourages reporting of conduct that meets the definition, provides a mechanism for investigating and resolving such complaints, prohibits retaliation for reporting, and imposes corrective action for violations, including termination if warranted.10
Employers cannot ignore social media as a prevalent forum in today's world for workplace bullies.11 Last year's National Labor Relations Board ("NLRB") Acting General Counsel's Memorandum on Social Media Policies demonstrates that policies must be carefully crafted to avoid running afoul of the National Labor Relations Act ("NLRA"). Policy language violates the NLRA if it restricts an employee's right to share and discuss their terms or conditions of employment with both co-workers and outsiders alike. However, social media policies prohibiting employees from engaging in "harassment, bullying, discrimination, or retaliation of co-workers that would not be permissible in the workplace . . . even if these actions are taken after hours, from home and on home computers" are permissible.12
One would be hard pressed to argue against a work environment that promotes respect and civility, and reduces or even eliminates workplace bullying without exposing an employer to unnecessary litigation for everyday behaviors prevalent in most work environments that strive for excellence in performance and productivity. Whether through legislation or simply through greater employer awareness and the enforcement of employment policies, this is a noble goal that employers and employees alike should endeavor to achieve.
Mara B. Levin is a partner with Herrick, Feinstein LLP and Co-Chair of Herrick's Employment Practices Group. She is located in Herrick's New York office and can be reached at firstname.lastname@example.org.
1 These protections may be found in Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, as amended, Title II of the Genetic Information Nondiscrimination Act of 2008, and the Uniformed Services Employment and Reemployment Rights Act of 1994.
2 Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986) (discussing hostile work environment in the sexual harassment context).
3 See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
4 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
5 The original version of the Healthy Workplace Bill is set out in David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 EMP. RTS. & EMP. POL'Y J. 475 (2004).
6 The Workplace Bullying Institute is expecting to report results of a 2014 U.S. workplace bullying survey sometime this month (March).
7 If the harasser could be identified, a victim of this type of cyber bullying may be able to seek redress through The Computer Fraud and Abuse Act (the "CFAA"), a criminal statute that provides a civil cause of action for anyone whose computer system or network has been damaged or accessed without authorization, provided certain requirements are met. Although traditionally thought of as a form of relief for those who fall victim to computer "hackers," the Act has seen increased use in the employer-employee context in connection with the electronic theft of trade secrets.
8 In order to prevail in a lawsuit for intentional infliction of emotional distress, the plaintiff typically must show the following: (1) the defendant intended to inflict emotional distress; (2) the conduct of the defendant was extreme and outrageous; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the resulting emotional distress to the plaintiff was severe.
9 Darboe v. Staples, Inc., 243 F. Supp. 2d 5, 19 (S.D.N.Y. 2003) (applying New Jersey law); Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 604 (M.D. Pa. 2002) (applying Pennsylvania law). See also Porter v. Bankers Life & Cas. Co., 2002 U.S. Dist. LEXIS 20627, at *5-6 (N.D. Ill. Oct. 25, 2002) (holding that an employee's claim for intentional infliction of emotional distress requires conduct that 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'…and does not extend to 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities''.)
10 In some states, the policies set forth in an employee manual may be contractually enforceable, thereby conferring legal rights upon employees who face bullying behaviors.
11 Cyber bullying aimed at an employee's disability resulted in employer liability in Espinoza v. County of Orange, 2012 WL 420149 (Cal. Ct. App. Feb. 9, 2012).
12 See http://www.nlrb.gov/news-outreach/news-story/acting-general-counsel-releases-report-employer-social-media-policies