Workplace Bullying and The Law

by Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley - Labor, Employment and Employee Benefits Law | Attorney Advertising

Written by:

Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact
more
less

Pullman & Comley - Labor, Employment and Employee Benefits Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!