STATE HARASSMENT/DISCRIMINATION LAWS

  • California passed a general anti-harassment law in 2014, AB 1825, that went into effect on January 1, 2015. It requires that supervisors in all firms with 50 or more employees receive training in “abusive conduct.” This requirement was added to an existing law requiring employers to provide two hours of sexual harassment training  to supervisors within the first six months of the employee’s assumption of a supervisory role. The new law defines “abusive conduct” as:

  . . . conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  [It] may include 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, or the gratuitous sabotage or undermining of a person’s work performance.”

Malice is conduct that is “intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

The new law states that a “single act shall not constitute abusive conduct, unless especially severe or egregious.”

  • Tennessee approved a “Healthy Workplace Act” in 2014 that is designed to curb verbal abuse at work by making public-sector employers immune to bullying-related lawsuits if they adopt a policy that complies with the law. The law applies only to public-sector employers, and administrators aren’t required to follow guidelines. If they do, however  they receive immunity from potential lawsuits.
  • Utah Gov. Gary Herbert signed HB 216 into law in 2014 to mandate Abusive Conduct training for public sector The law requires state agencies to train supervisors and employees about how to prevent abusive conduct. The law takes effect July 1, 2015. Utah is the second state to pass a training-only law to begin to address abusive conduct in the workplace.

Every state has laws that protect employees from unlawful discrimination. These laws may be more expansive than similar federal laws, encompassing more employers and additional classes of victims.  They may offer protection that is  not available under federal law. For example, the U.S. Congress has yet to adopt legislation prohibiting discrimination on the basis of sexual orientation but almost half of the states and the District of Columbia have adopted such laws.  Thus, a victim of harassment based on sexual orientation may be able to file a lawsuit in state court that would not be possible in federal court.  State  discrimination laws may offer a wider range of damages, especially with claims related to age discrimination.  Many attorneys prefer to bring suit in state courts to avoid federal courts, which tend to be hostile to employment law claims.  You should check the laws in your state.

Other State Remedies

STATUTORY & COMMON LAW REMEDIES

Note: Workers’ compensation laws may preempt tort (personal injury) claims in some states.

  • Intentional Infliction of Emotional Distress

    (IIED).  A tort is a civil action to redress a wrongdoing. According to the Restatement of Torts 2nd § 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

One court found the conduct must be “‘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).

However, the Supreme Court of Indiana said in dicta in Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008) that workplace bullying could be a form of  IIED .  Id. at 799.  In that particular case, the jury rejected the plaintiff’s IIED claim but did find in favor of the plaintiff on a claim for assault. The jury awarded the plaintiff $325,000 in damages.  The Indiana Supreme Court found there was substantial evidence or reasonable inferences to support the assault claim and upheld the damages award.

The plaintiff in Raess was hospital operating room perfusionist who claimed the defendant, a cardiovascular surgeon, was “angry at the plaintiff about reports to hospital administration about the defendant’s treatment of other perfusionists” and “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.  The plaintiff, fearing imminent physical harm, backed up against the wall and held his hands up. Instead of striking the plaintiff, the surgeon stopped, turned, and stormed out of the room, declaring, “you’re finished. you’re history.” Id.

The plaintiff did not return to work, in part, because he developed a panic disorder and depression, limiting his ability to perform under pressure in an operating room.

(Note: This case marked the first time that Gary Namie, the founder of the Workplace Bullying Institute, was allowed to testify as an expert on workplace bullying, over the objections of the defense. Namie called the 2001 incident an “episode of workplace bullying” and called the doctor “a workplace abuser.”  Defense counsel argued Namie was not qualified to be an expert because his is not a clinical psychologist, and that Namie based his report on a telephone call with the Plaintiff, without ever speaking to the Defendant. The Indiana Court of Appeals  ruled the trial court committed reversible error in allowing the doctor to be labelled a workplace bully and overturned the jury award.  However, the Indiana Supreme Court reinstated the jury’s award, finding, among other things, that the defendant’ s objection to Namie’s testimony was procedurally flawed.  One of the four justices dissented and said Namie’s testimony was highly prejudicial and violated an evidentiary rule that permits expert opinion testimony only as to  “scientific, technical, or other specialized knowledge” to “assist the trier of fact to understand the evidence or to determine a fact in issue.”

See also, Subbe-Hirt v. Baccigalupi, 94 F.3d 111 (1996), where the 3rd Circuit Court of Appeals ruled that a jury could find the plaintiff, a female salesperson, was the victim of IIED by her boss, Robert Baccigalupi. The Court said the Subbe-Hirt was not limited to damages under the New Jersey’s worker’s compensation law because of evidence  of deliberate intent on Baccigalupi’s part.  The Court said Subbe-Hirt had demonstrated her supervisor’s conduct was sufficiently outrageous to support an IIED claim.  Among other things, the Court said, witnesses testified:

” … Baccigalupi replaced females’ given names … with the term “cunt,” to depersonalize and deride the women in the office … Moreover, he would ask Subbe-Hirt for her resignation almost every time she was in the office. Baccigalupi even went so far as to have an unsigned resignation on his desk; we would then ask Subbe-Hirt “why don’t you sign it; if you don’t want to sign it, go on disability … Baccigalupi would “grill” her on work she submitted, asking “why did you do this, what did you do here, what was said here?” If he was not “satisfied” with her answer, he would call Subbe-Hirt’s clients in front of her and say “Elaine says this; what do you say?”

… After one meeting with Baccigalupi, Subbe-Hirt “literally blacked out behind the wheel and hit a tractor trailer just from stress and emotion[,]” suffering severe injuries that required eight days of hospitalization. This incident forced Subbe-Hirt to take temporary disability leave; indeed, her treating psychiatrist has opined that she remains totally disabled with post traumatic stress disorder triggered by Baccigalupi’s badgering and intimidation.”

Key evidence was a note Subbe-Hirt presented to  Baccigalupi from her psychiatrist stating she  was capable of working but should not be placed under undue stress. He refused her request to place it in her personnel file, and continued his allegedly abusive behavior.

  • Breach of Contract

    Is there an anti-bullying or anti-harassment provision in your employee handbook? In an “at-will” employment states, where an employee can be fired for any reason (except illegal discrimination), this might be the basis for a lawsuit alleging the employer breached its contract of employment.

  • Defamation.

    A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. There must be a false and defamatory statement, an unprivileged publication to a third party, and fault amounting at least to negligence on the part of the publisher.

  • Assault and/or battery

    If this does not rise to the seriousness of a criminal act, it may still be an intentional tort. Assault consists of intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact. Battery consists of intentional and harmful or offensive physical contact.  See above entry for Intentional Infliction of Emotional Distress where a defendant was found guilty of assault in a workplace bullying case where a doctor approached him in a rage with raised fists but never actually touched him.

  • Invasion of Privacy

    This includes an intentional interference with a person’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. The intrusion must be of a kind that would be highly offensive to a reasonable person. It might include such things as placing a camera or a peephole in an employee bathroom or forcing your way into a person’s hotel room.

  • False imprisonment.

    An actor is subject to liability to another for false imprisonment if h/she intends to and does confine the other or a third person in a confined space and the other is conscious of the confinement or harmed by it.   This might work if, for example, if a bully boss confines you inside an office and blocks your ability to leave.

  • Tortuous interference with the employment contract or business relationships.

    Generally, a third party must  knowingly induce the employer to break the employment contract.  Theoretically, it could be argued the supervisor acted outside the scope of  his/her employment relationship in bullying the target .

  • Failure of an employer to exercise reasonable care with respect to the hiring, supervision and retention of the abuser

    See Daka, Inc. v. McCrae, 839 A.2d 682 (D.C. 2003), where a male banquet chef complained he was sexually harassed by a male supervisor, the catering director, for several months after he refused the supervisor’s dinner invitation. The chef was subsequently demoted and fired.  The chef could show that other supervisors were aware of the harassment but did nothing. He sued for negligent supervision, and a jury awarded him $187,500 in compensatory damages and $4.8 million in punitive damages. Negligent supervision claims generally require a tort to be committed by the supervised employee before the employer can be held liable.   A tort is a  civil wrong recognized by the law as the basis for a lawsuit that results in an injury or harm. This remedy also has been successfully invoked by victims of sexual assault where a company hired a supervisor who had a record of sex offenses and in police brutality cases, where an officer had a record of complaints.

  • Constructive dismissal:

    If you are forced to quit a job to escape a bully boss, you may still be able to get unemployment benefits. An employee can argue the employer changed the fundamental terms and conditions of the job for which the employee was hired, effectively dismissing the employee.

(05/11)

For Employers

Bullying is a costly management problem.  Yet, all too often, instead of being the first line of defense, the Human Resources Department reinforces the bullying and further undermines the victim. The result is costly turnover, poor morale, and expensive litigation.  Stopping bullying makes economic sense for employers.  Does your company have an anti-bullying policy?  Is it strictly enforced, even when the bully is a highly valued employee?  Are employees encouraged to report bullying and do you insure they are protected from retaliation?   If not, you are inviting needless expense and risk.  – PGB

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“Bully bosses are the bane of management. They are the ones who take credit for their subordinates’ ideas, engage in abusive behavior, humiliate employees in public, talk behind people’s backs, and send others to do their dirty work. Bullies often make the numbers; that’s why it’s hard to get rid of them. When bullies resist all help, they must be removed from the organization. FROM:  Article by John Baldoni, Harvard Management Update; Sept. 2005, Vol. 10 Issue 9, p1-3, 3p.

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THE TAB FOR EMPLOYERS

It is astonishing that American employers tolerate workplace bullying.  Never-mind the devastation that bullying wreaks on the target, bullying wreaks havoc on the company’s bottom line. Bullying results in higher health costs, needless turnover, lower morale and motivation, lost work hours, absenteeism, etc. etc. etc.

Consider:

  • According to Christine Pearson at UNC-Chapel Hill and Christine Porath of USC’s Marshall School of Business (The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It (2009))  targets of bullying react in the following ways:

-48% decreased their work effort,

-47% decreased their time at work,

-38% decreased their work quality,

-66% said their performance declined,

-80% lost work time worrying about the incident,

-63% lost time avoiding the offender

  • Bullying causes needless turnover.

According to the Level Playing Field Institute, more than two million managers and professionals flee their jobs every year as a result of workplace unfairness, including bullying. The cost of replacing just one $8-per-hour employee can range from $3,500 to $25,000, depending on the industry. The  exodus of two million workers costs businesses $64 billion.

Research shows that bullying also contributes to turnover among witnesses of bullying, who suffer emotional distress that is almost as great as that experienced by the victims of bullying. Furthermore, more than a quarter of employees who leaves because of unfairness do not recommend the employer to potential employees, and many do not recommend the company’s products and services to others.

  • Bullying results in costly litigation.

Even if the employer wins, it can cost the employer tens of thousands of dollars to defend the lawsuit.

The employer doesn’t always win. In Indiana, a medical technician was awarded $325,000 after successfully suing a surgeon who bullied him in an operating room for Intentional Infliction of Emotional Distress and assault.

A lawsuit, and attendant publicity, can be harmful to a business in terms of public perception and the ability to attract quality employees.

____________________________________

Five Tips for Businesses on Handling Workplace Bullying

(Excerpted from Teresa A. Daniel,  Stop Bullying at Work (ISBN 9781586441357, September 2009, $17.95)

To properly approach the bully and create individual change:

1.  Confront and monitor existing bullies.

– Talking directly to the bully about the consequences of his or her behavior;

– Training bullies about how to treat others fairly in the workplace; and

– Implementing performance evaluation and appraisal mechanism to discourage bullying behaviors, such as a 360-degree performance feedback system.”

2. Obtain a senior management commitment to a bully-free environment. Organizations need to demonstrate in visible and continuous ways that senior management is committed to addressing and eradicating the bullying phenomenon. Because of the power differential that exists in the relationship between the bully and the targeted employee, the reluctance to report bullying appears to be linked to the belief that nothing will be done and also to the fear of retaliation if something is done.

3.   Develop an anti-bullying policy. “Any policy that you develop should be customized to fit your organization’s specific culture, values, and needs. An anti-bullying policy will generally address the following types of issues: your company’s commitment to a culture of mutual respect and zero-tolerance of bullying, clear definitions of bullying, managerial responsibilities, complaint procedures, any support or counseling offered to the target, assurances that all complaints are taken seriously and will be treated confidentially, a ‘no retaliation’ provision, and who to contact to get further information.”

4.  Create monitoring, investigation, and complaint systems, disciplinary procedures, and follow-up measures. “Whether or not you elect to develop and implement an anti-bullying policy, a specific internal group or department needs to be identified as being responsible for receiving complaints and educating your employees. An investigation is a necessary response to a bullying complaint. All complaint resolution systems must include an effective disciplinary procedure that spells out the consequences for failure to abide by the company’s policy, including progressive discipline.”

5.  Train employees about conduct expectations. “Periodic training of employees must be conducted to ensure a culture of respect and accountability, and also that all employees understand the company’s expectations about their workplace conduct – what is and is not acceptable – and the consequences for failing to observe these requirements.”

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Research shows that  Human Resources often creates an environment where bullying “remains unchallenged, allowed to thrive or actually encouraged in an indirect way.” If the victim seeks help, HR  protects the employer’s interests rather than to seek a fair and just resolution. “The absence of collective voice … renders employees completely vulnerable, with no avenues for redressal … Issues of justice and morality inevitably arise … With managers being judge and jury combined, the correctness of managerial decisions remains largely unchecked … .”  FROM:  Premilla D’Cruz and Ernesto Noronha, Protecting My Interests: HRM and Targets’ Coping with Workplace Bullying, The Qualitative Report Vol.15, Number 3 (May 2010) http://www.nova.edu/ssss/QR/QR15-3/dcruz.pdf.

_________________________

In the case of despots, you need to depose them; in the case of bullies, you need to boot them. Few are worthy of rehabilitation. Power for them is both a means to an end as well as the end itself. “ – John Baldoni, 12 Steps to Power Presence: How to Assert Your Authority to Lead, (2010)

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Excerpt from the Center for the Promotion of Health in the New England Workplace at the University of Massachusetts, Lowell:

Organizational Practices that cause worker stress:

  • Favoritism
  • Inflexible rules
  • Low pay and benefits
  • Poor supervision
  • Job insecurity
  • Responsibility without authority
  • Lack of input in decisions
  • Poor chances for advancement or growth
  • Unclear responsibilities or expectations
  • Multiple supervisors
  • Lack of recognition
  • Poor communication
  • Mandatory Overtime

* Patricia G. Barnes is an attorney with experience in both domestic violence and employment law. She is available for consultation, training on creating a healthy and positive management environment for employees and speaking engagements.

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The Healthy Workplace Bill (2010)

This is  the  2010 version of the Healthy Workplace Bill,, drafted by  David C. Yamada, Professor, Suffolk University Law School, and supported by the Workplace Bullying Institute.  This proposal was sharply criticized by international scholars and others as being far less protective of worker rights than legislation in other industrialized countries. The bill has been improved since 2010 but still is problematic.  In any case, after more than a decade, it appears unlikely that a state-by-state approach is a viable option to the problem of workplace bullying. This blog supports a federal national approach, recognizing that workers who may need the most protection live in so-called “pro business” states that  will never adopt a workplace anti-bully protections. Also, workplace bullying is an important health and safety issue for workers and the United States lags behind other industrialized countries in addressing the problem.  Workers need help now! PGB

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THE HEALTHY WORKPLACE BILL

By David C. Yamada, Professor, Suffolk University Law School

Section 1 – Preamble

(a) Findings

The Legislature finds that:

(1) The social and economic well-being of the State is dependent upon healthy and productive employees;

(2) Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone;

(3) Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.

(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;

(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes;

and,

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.

(b) Purpose

It is the purpose of this Chapter:

(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments;  (2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

Section 2 – Definitions

(a) Abusive work environment. An abusive work environment exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.

(1) Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: 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 a employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard.

(2) Malice. Malice is defined as the desire to cause pain, injury, or distress to another.

(b) Tangible harm. Tangible harm is defined as psychological harm or physical harm.

(1) Psychological harm. Psychological harm is the material impairment of a person’s mental health, as established by competent evidence.

(2) Physical harm. Physical harm is the material impairment of a person’s physical health or bodily integrity, as established by competent evidence.

(c) Adverse employment action. An adverse employment action includes, but is not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.

(d) Constructive discharge. A constructive discharge shall be considered a termination, and, therefore, an adverse employment action within the meaning of this Chapter. A constructive discharge exists where: (1) the employee reasonably believed he or she was subjected to abusive conduct; (2) the employee resigned because of that abusive conduct; and, (3) prior to resigning, the  employee brought to the employer’s attention the existence of the abusive conduct and the employer failed to take reasonable steps to correct the situation.

Section 3 – Unlawful Employment Practices

(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to subject an employee to an abusive work environment as defined by this Chapter.

(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate inany manner against an employee who has opposed any unlawful employment practice under this Chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.

Section 4 – Employer Liability and Defense

(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this Chapter, committed by its employee.

(b) Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer only that:

(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.

Section 5 – Employee Liability and Defense

(a) An employee may be individually liable for an unlawful employment practice as defined by this Chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this Chapter at the direction of the employer, under threat of an adverse employment action.

Section 6 – Affirmative Defenses

It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.

Section 7 – Relief

(a) Relief generally. Where a defendant has been found to have committed an unlawful employment practice under this Chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.

(b) Employer liability. Where an employer has been found to have committed an unlawful employment practice under this Chapter that did not culminate in an adverse employment action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named employee defendants.

Section 8 – Procedures

(a) Private right of action. This Chapter shall be enforced solely by a private right of action.

(b) Time limitations. An action commenced under this Chapter must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.

Section 9 – Effect on Other Legal Relationships

The remedies provided for in this Chapter shall be in addition to any remedies provided under any other law, and nothing in this Chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this Chapter and the workers’ compensation law, or compensation under both this Chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers’ compensation shall be reimbursed from compensation paid under this Chapter.