Could Jonathan Martin successfully sue the Miami Dolphins and Richie Incognito for workplace bullying? Probably not.
For one reason or another, the existing array of legal claims do not cover much of what would be considered workplace bullying. And while there have been thoughtful efforts to develop model legislation which would provide a right of action to victims, no state has adopted the legislation or any version of it, and 26 state legislatures have considered it. More on that below.
The most likely cause of action for workplace bullying is the common law action for intentional infliction of emotional distress. This action is usually unavailable because only rarely will the bullying reach the level of seriousness that the action requires – the conduct must be extreme and outrageous. Also, the bullying conduct will rarely rise to the level the law requires for a successful intentional infliction claim – distress that no reasonable person could be expected to endure.
Negligent infliction of emotional distress, another potential cause of action, is generally unavailable for many of the same reasons. In, Connecticut, though, there is an additional reason. In employment cases, the Connecticut Supreme Court has specifically restricted the action to conduct arising in the context of a termination.
And then, as far as claims against employers are concerned, there is always the issue of the workers’ compensation act barring a civil suit (in those states where emotional distress is a covered claim).
The anti-discrimination laws and the concept of a hostile work environment could be perfect candidates to remedy workplace bullying. But, to access those laws, the bullying victim must be a member of a protected class (gender, age, race, religion, etc.) and the bullying must be on account of that membership.
The model legislation being proposed to address workplace bullying is called the Healthy Workplace Bill. It’s the work of a Suffolk University law professor, David Yamada. It reflects an effort to impose liability for conduct that is sufficiently serious and injurious, yet not as serious or injurious as that required to satisfy the elements of an intentional infliction of emotional distress claim. The Bill describes the offending conduct as “abusive conduct,” which it defines as acts or omissions “that a reasonable person would find hostile, based on the severity, nature, and frequency” of the defendant’s conduct. It includes a non-exclusive list of examples – 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 sabotaging or undermining of an employee’s work performance, or attempts to exploit an employee’s known psychological or physical vulnerability.
To prevail in an action for abusive conduct, the employee must show that the defendant acted with malice – an intent to cause pain, injury or distress – in subjecting the employee to the challenged conduct, and the conduct must be so severe as to cause the employee tangible harm – a material impairment of the employee’s physical or mental health. The Bill imposes liability on employees, as well as employers. The employer liability is vicarious, and if there is no causally related adverse employment action, the employer can avoid liability with an Ellerth/Faragher-type defense.
Employer groups oppose the bill arguing that it is likely to create liability for conduct that is merely rude, obnoxious and offensive, and that it discourages employers from pushing for excellence, when pushing for excellence is sound public policy and should be encouraged. There is merit to these criticisms. Yet just because employers are afraid of being exposed to liability for bullying in their workplaces, they understand that bullying in their workplaces is bad for their businesses for all the obvious reasons.
At Pullman & Comley, we customarily include in the employee manuals we create for our clients policies against “harassment” – any harassment, not just sexual or protected class discrimination. Among other things, the policy states the employer “will not tolerate verbal or physical conduct by any employee that harasses, disrupts or interferes with another’s work performance or that creates an intimidating, offensive or hostile environment.” Yes, the conduct that violates the policy can be less serious and less injurious than the conduct the Healthy Workplace Bill addresses, but we believe that an employer’s interest in a happy workforce and in an efficient operation should be sufficient motivation for employers to police their own workplaces and that exposure to civil liability is unnecessary and undesirable as a matter of policy.