Abstract
In spite of the substantial negative effects of workplace bullying and the widespread recognition of the problem of workplace bullying, the legal status of workplace bullying and psychological harassment remains quite uncertain in the United States. Rather than receiving comprehensive legal treatment by either federal or state law, workplace bullying and psychological harassment is addressed in the United States, if at all, by a number of disparate statutes and causes of action, none of which are tailored to the particular issues raised by bullying in the workplace. Workplace bullying remains a problem in search of a cause of action.
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Notes
- 1.
Workplace Bullying Institute, 2014 WBI U.S. Workplace Bullying Survey, available at workplacebullying.org (last visited January 15, 2016). The online survey was conducted of 1,000 adults in the United States on January 27 and 28, 2014. Seven percent of the respondents reported that they had experienced this conduct in the past year, while 20% reported that they had personally experienced this conduct, but not in the past year. Generally similar results were obtained from earlier surveys by the Workplace Bullying Institute. A 2010 survey indicated that 8.8% of respondents had personally experienced bullying in the past year and 25.7% reported past, but not last year, experience of bullying. Workplace Bullying Institute, 2010 WBI U.S. Workplace Bullying Survey, available at workplacebullying.org (last visited January 15, 2016). A 2007 survey indicated that 12.6% of respondents had personally experienced bullying in the past year and 24.2% reported past, but not last year, experience of bullying. Workplace Bullying Institute, 2007 WBI U.S. Workplace Bullying Survey, available at workplacebullying.org (last visited January 15, 2016).
- 2.
Aaron C.H. Schat, Michael R. Frone, and E. Kevin Kelloway, Prevalence of Workplace Aggression in the U.S. Workforce: Findings from a National Study, in Handbook of Workplace Violence (W. Kevin Kelloway ed., Sage Publications 2006). This telephone survey consisted of 2829 study participants, sampled from a population non-institutionalized adults aged 18–65 employed in the civilian labor force in the 48 contiguous states and the District of Columbia. The prevalence of psychological abuse was measured by asking participants how frequently they were subjected to the following actions by someone at work: shouted obscenities at you or screamed at you in anger; insulted you or called you names in front of other people; made an indirect or hidden threat, such as saying that “something bad” would happen to you; threatened to hit you or throw something at you; or threatened you with a knife, gun, or another weapon.
- 3.
Society for Human Resource Management, Survey Findings: Workplace Bullying (2012). “Workplace bullying” had been defined as “persistent, offensive, abusive, intimidating or insulting behavior or unfair actions directed at another individual, causing the recipient to feel threatened, abused, humiliated or vulnerable.”
- 4.
U.S. Merit Systems Protection Board, Employee Perceptions of Federal Workplace Violence ii, 7, 17 (Sept. 2012). This study involved a survey distributed to 71,970 full-time, permanent federal employees from July to September 2010, with a 58% response rate.
- 5.
See Aaron Schat and Michael R. Frone, Exposure to Psychological Aggression at Work and Job Performance: The Mediating Role of Job Attitudes and Personal Health, 25 work stress 23-40 (Jan. 2011); Cassandra A. Okechukwu, Kerry Souza, Kelly D. Davis, and A. Butch de Castro, Discrimination, Harassment, Abuse and Bullying in the Workplace: Contribution of Workplace Injustice to Occupational Health Disparities, 57 am. j. ind. med. 573 (May 2014). See also Christine Porath and Christine Pearson, The Price of Uncivility. harvard business review (Jan./Feb. 2013).
- 6.
Society for Human Resource Management, Survey Findings: Workplace Bullying (2012).
- 7.
Workplace Bullying Institute, Workplace Bullying from the Perspective of U.S. Business Leaders (2013), available at workplacebullying.org (last visited January 16, 2016).
- 8.
See, e.g., Cassandra A. Okechukwu, Kerry Souza, Kelly D. Davis, and A. Butch de Castro, Discrimination, Harassment, Abuse and Bullying in the Workplace: Contribution of Workplace Injustice to Occupational Health Disparities, 57 am. j. ind. med. 573 (May 2014); Aaron Schat and Michael R. Frone, Exposure to Psychological Aggression at Work and Job Performance: The Mediating Role of Job Attitudes and Personal Health, 25 Work Stress 23-40 (Jan. 2011).
- 9.
See generally Katherine Lippel, The Law of Workplace Bullying: An International Overview, 32 Comparative Labor Law & Policy Journal 1 (2010) (describing the general state of the law in a number of countries with respect to what is variously called “workplace bullying,” “moral harassment,” “psychological harassment,” and “mobbing” and introducing symposium contributions on the issue from scholars in Australia, Canada, Chili, France, Germany, Spain, and Sweden).
- 10.
One of the United States legal scholars who has been most persistent in his quest for legal recognition of workplace bullying is Professor David C. Yamada. His article titled The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection, 88 georgetown law journal 475 (2000), chronicled the problem of workplace bullying and the inability of existing legal protections for the workplace to deal with the problem of workplace bullying. He has drafted model legislation on workplace bullying, the Healthy Workplace Bill, which is patterned on harassment law under the federal anti-discrimination laws and which has served as the basis for proposed legislation introduced into a number of state legislatures. See David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 Employee Rights and Employment Policy Journal 475 (2004).
- 11.
See, e.g., Workplace Bullying Prohibition, 2015 Illinois Senate Bill No. 1363 (introduced February 18, 2015) (would prohibit workplace bullying by private sector employers with three or more employees and would require those employers to adopt a policy regarding workplace bullying); An Act Concerning Workplace Bullying, 2015 Connecticut Senate Bill No. 432 (introduced January 22, 2015) (would provide greater protections to employees who are bullied in the workplace and create a workplace bullying advisory board to address instances of workplace bullying).
- 12.
A fourth jurisdiction, Puerto Rico, has sought to raise awareness of workplace bullying by establishing “Unity Day,” a day set aside “in order to raise awareness of bullying in schools, the workplace, and communities.” 2014 P.R. Laws No. 70 (approved June 25, 2014); 1 L.P.R.A. § 5271. The “statement of motives” for that legislation indicates that “[i]ncorporating patterns of verbal hostility, humiliating remarks, threats, assaults, and other forms of abuse and intimidation constitute violent manifestations of inequality and intolerance among human beings interacting in a school, work, or community environment.”
- 13.
2014 Cal. Legis. Serv. ch. 306 (filed Sept. 9, 2014) (amending Cal. Gov’t Code § 12950.1). This requirement applies to employers employing 50 or more employees or receiving the services of 50 or more persons pursuant to contract, as well as to the state, political subdivisions of the state, and cities.
- 14.
Cal. Gov’t Code § 12950.1(g)(2).
- 15.
Cal. Gov’t Code § 12950.1(d).
- 16.
2015 Utah Laws ch. 211 (approved March 26, 2015; effective July 1, 2015) (codified at Utah Code Ann. § 67-19-44). Title R477 of the Utah Administrative Code contains the department’s policy against abusive conduct, which generally provides that “[i]t is the policy of the State of Utah to provide a work environment free from abusive conduct.”
- 17.
Utah Code Ann. § 67-19-44(3). Title R477 of the Utah Administrative Code provides more information on the complaint and investigative procedures for allegations of abusive workplace conduct.
- 18.
Utah Code Ann. § 67-19-44(1)(a)(i).
- 19.
Utah Code Ann. § 67-19-44(1)(a)(ii).
- 20.
Utah Code Ann. § 67-19-44(7).
- 21.
2014 Tenn. Laws Pub. ch. 997 (approved May 22, 2014) (codified at Tenn. Stat. §§ 50-1-501 to 50-1-504).
- 22.
Tenn. Stat. § 50-1-502(1).
- 23.
Tenn. Stat. § 50-1-503(b).
- 24.
Tenn. Stat. §§ 50-1-503(c), 50-1-504.
- 25.
Although the Commission Staff did draft a model policy and present it to the Commission for adoption, the Commission asked the legislature for and received additional time to adopt a policy, and the minutes of the Commission’s meetings through late 2016 do not indicate that it has in fact adopted a policy. See Minutes of the Tennessee Advisory Commission on Intergovernmental Relations (Jan. 28, 2015) (motion passed to request additional time for Commission to develop a model policy); Minutes of the Tennessee Advisory Commission on Intergovernmental Relations (June 10, 2015) (reporting that Senate had passed Senate Bill 1157 extending the due date for the model policy from March 1, 2015 to September 1, 2015). See generally Minutes of the Tennessee Advisory Commission on Intergovernmental Relations (Sept. 2, 3, 2015; Oct. 21, 22, 2015; Jan. 5, 6, 2016; May 25, 26, 2016; Aug. 30, 31, 2016; Dec. 5, 6, 2016) (no discussion of model policy).
- 26.
Tenn. Op. Atty. Gen. No. 15-01, 2015 WL 224845 (Jan. 6, 2015).
- 27.
Some scholars have argued that most bullying in the workplace, whether directed at women or at men, is gendered and therefore meets the definition of discrimination because of sex. See Ann C. McGinley, Creating Masculine Identities: Harassment and Bullying “Because of Sex,” 79 U. Colo. L. Rev. 1151 (2008). See also Denise Salin and Helge Hoel, Workplace bullying as a gendered phenomenon, 28 Journal of Managerial Psychology 235, 246 (noting the substantial evidence indicating that bullying is a gendered rather than a gender-neutral phenomenon, indicating that women are not only targeted more often for bullying but experience bullying in different ways than do men).
- 28.
42 U.S.C. §§ 2000e to 2000e-17.
- 29.
29 U.S.C. §§ 631 to 633a.
- 30.
42 U.S.C. §§ 12101 to 12103, 12111 to 12117.
- 31.
See Ramseur v. Perez, 962 F. Supp. 2d 21, 30 (D.D.C. 2013) (indicating that while “workplace bullying is not an independently cognizable claim under Title VII,” bullying can be actionable as hostile environment harassment if the bullying is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment”), later proceeding, 80 F. Supp. 3d 58, 77–79 (D.D.C. 2015) (granting summary judgment on hostile environment claim because being yelled at in the workplace in front of co-workers and being reprimanded without cause was just an “ordinary tribulation[] of the workplace” and not actionable under Title VII). But see Barnes v. Nationwide Mutual Insurance Co., 598 Fed. Appx. 86, 90–91 (3d Cir. 2015) (in upholding district court’s rejection on summary judgment of employee’s claim that she had been mistreated by supervisor because of her race, court of appeals indicated that the conduct was not serious enough to affect a term and condition of her employment and that “[b]ullying or discrimination of any kind in the workplace is wrong, but not every wrong is a violation of federal law”).
- 32.
422 F.3d 840 (9th Cir. 2005).
- 33.
Id. at 842-44.
- 34.
Id. at 844-45.
- 35.
Id. at 845.
- 36.
Id. at 845-46.
- 37.
Id. at 846-47.
- 38.
Id. at 847.
- 39.
30 F. Supp. 3d 1285 (N.D. Ala. 2014).
- 40.
Id. at 1294-1304.
- 41.
Id. at 1305-06.
- 42.
Id. at 1307.
- 43.
Id. at 1309-13.
- 44.
2013 WL 6490275 (D. Md. 2013).
- 45.
Id. at * 1-2.
- 46.
Id. at * 5.
- 47.
Id. at * 5-6.
- 48.
746 F. Supp. 2d 575 (S.D.N.Y. 2010).
- 49.
Id. at 604-07.
- 50.
Id. at 606.
- 51.
I do not mean to suggest that the court should have lightly overturned a jury verdict finding for the employer on the plaintiff’s discriminatory harassment claim, only that the court’s indication that “[v]iewing the evidence most favorably to the plaintiff” there was no indication that the race and national origin neutral conduct might also have been motivated by discrimination is surprising.
- 52.
The courts have made clear that psychological harassment or workplace bullying not tied to a particular protected classification is not actionable under the anti-discrimination laws. As the district court in Johnson v. City University of New York, 48 F. Supp. 3d 572, 574 (S.D.N.Y. 2014), explained: “Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII …. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”
- 53.
Curiously, some courts have suggested that psychological harassment or workplace bullying that is based on sex or another protected characteristic may be the only type of such conduct that also meets the requirements of a claim of intentional infliction of emotional distress. See Livingston v. Marion Bank and Trust Co., 30 F. Supp. 3d 1285, 1323-24 (N.D. Ala. 2014) (noting that narrowness of claims of intentional infliction of emotional distress and that the Alabama courts have recognized the claim in only three contexts, including that of “egregious sexual harassment”).
- 54.
See Connearney v. Main Line Hospitals, Inc., 2015 WL 9302912, * 6 (E.D. Pa. 2015) (noting that plaintiff had stated that “it is time for the Courts to recognize that bullying and employee abuse constitute an exception to at-will employment” but indicating that the court “will not create a common law cause of action in Pennsylvania for bullying”); Ramseur v. Perez, 962 F. Supp. 2d 21, 30 (D.D.C. 2013) (dismissing plaintiff’s tort claim for “workplace bullying” on grounds that there is no “independently cognizable common law claim for ‘workplace bullying’”); Jaber v. FirstMerit Corp., 2017 -Ohio- 277, ___ N.E.3d ___ (Ohio App. 2017) (court refused to “expand the current state of the law to recognize a claim for violation of public policy on the basis of bullying”).
- 55.
See restatement (third) of torts § 46 (2012).
- 56.
restatement (second) of torts § 46 cmt. d (1965).
- 57.
restatement (third) of torts § 46 cmt. d (2012).
- 58.
2015 WL 5194832 (Minn. Ct. App. 2015).
- 59.
2015 WL 5194832, * 7.
- 60.
2015 WL 5194832, * 10.
- 61.
2015 WL 5194832, * 7. Because the court does not describe the nature of the conduct to which the plaintiff was subjected, it is difficult to assess the validity of the court’s conclusion.
- 62.
858 N.E.2d 119 (Ind. App. 2006).
- 63.
Id. at 120-24 (alterations in original). The jury found in favor of the plaintiff on the claim of assault, but against the plaintiff on the claim of intentional infliction of emotional distress.
- 64.
Raess v. Doescher, 883 N.E. 2d 790, 795-97 (Ind. 2008).
- 65.
Id. at 798-99 (citations to record omitted).
- 66.
Id. at 800-02 (Boehm, J., dissenting).
- 67.
See Nesbitt v. University of Maryland Medical System, 2013 WL 6490275, * 8-9 (D. Md. 2013) (noting that intentional infliction of emotional distress claims are rarely viable under Maryland law, “especially in workplace harassment cases”); Dart v. County of Lebanon, 2014 WL 4792135, * 11 (M.D. Pa. 2014) (noting that under Pennsylvania law, it would be extremely rare to find conduct in the employment context to rise to the level of outrageousness required by the tort of intentional infliction of emotional distress and that the allegations of the plaintiff, while “possibly constituting ‘bullying and abuse,” did not meet that high threshold).
- 68.
See Espinoza v. The Computer Co., 2015 WL 1014865 (Conn. Super. Ct. 2015). See also Woodward v. Elizabethtown Community and Technical College, 2015 WL 4464100, * 6 (W.D. Ky. 2015) (“The workplace is too often a source of insults and indignities, but the law does not redress all rude and disheartening actions taken by employers.”).
- 69.
2013 WL 6490275, * 9.
- 70.
See Northern v. State of Lousiana, 2015 WL 6839998, * 6 (La. App. 2015). See also Espinoza v. The Computer Co., 2015 WL 1014865, * 2 (Conn. Super. Ct. 2015) (“[t]he extreme and outrageous character of the conduct may [also] arise from an abuse by the action of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests …. Such ‘position or relation’ may be that of an employer or supervisor at work.”).
- 71.
2015 WL 1014865 (Conn. Super. Ct. 2015).
- 72.
Id. at 1014865, * 1-2.
- 73.
For a detailed discussion about how the Occupational Safety and Health Act might be interpreted to reach workplace bullying, see Susan Harthill, The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act, 78 u. cinn. l. rev. 1250 (Summer 2010).
- 74.
Occupational Safety and Health Act of 1970, § 5(a) (1), 29 U.S.C. § 654(a)(1).
- 75.
Letter to Mr. John R. Schuller from Roger A. Clark, Director, Directorate of Enforcement Programs (Dec. 10, 1992).
- 76.
U.S. Department of Labor, Occupational Safety and Health Administration, OSHA Fact Sheet, Workplace Violence (2002).
- 77.
United States Department of Labor, Occupational Safety and Health Administration, Safety and Health Topics, found at https://www.osha.gov/SLTC/workplaceviolence (last visited January 28, 2016).
- 78.
Memorandum for Regional Administrators from Richard E. Fairfax, Director, Directorate of Enforcement Programs (June 7, 2004) (referencing guidelines provided to employers on workplace violence and noting that failure to implement a guideline is “not a violation, or evidence of a violation of the general duty clause”).
- 79.
U.S. Department of Labor, Occupational Safety and Health Administration, Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents, Directive No. CPL 02-01-052 (Sept. 8, 2011)(emphasis in original). See also Ayers v. Army, 2014 WL 793973 (Merit Systems Protection Board, Initial Decision) (reporting that complaint of workplace bullying was made to Occupational Safety and Health Administration, which declined to conduct an investigation, but did request that commander conduct an investigation and report back to the agency).
- 80.
See U.S. Merit Systems Protection Board, Employee Perceptions of Federal Workplace Violence ii, 18–19 (Sept. 2012) (“The type of workplace violence that Federal employees observed most was, by far, violence perpetuated by current or former employees—MPS 2010 survey respondents observed this type of workplace violence more often than violence perpetuated by all other individuals combined.”). See also id. at 33 (noting that workplace violence that does not result in physical injury should still be a concern to federal organizational leaders because psychological abuse is “particularly insidious” and that “[t]hreats, demeaning or belittling statements, and ridicule can erode the mental health of employees and an organization’s ability to function effectively and ultimately to produce desired results”).
- 81.
Occupational Safety and Health Administration Field Safety and Health Manual, Directive No. ADM 04-00-001, p. 10-1 (effective May 23, 2011).
- 82.
Id. at 10-1.
- 83.
Conn. Gen. Stat. § 31–49.
- 84.
60 Conn. L. Rptr. 208, 2015 WL 2166662 (Conn. Super. Ct. 2015).
- 85.
2015 WL 2166662, * 3-5. The court’s initial decision is reported at 2014 WL 2854124 (Conn. Super. Ct. 2014).
- 86.
60 Conn. L. Rptr. 311, 2015 WL 3522022 (Conn. Super. Ct. 2015).
- 87.
2015 WL 3522022, *3-4 (quoting Brunelle v. Reuters Analytics, Inc., 21 Conn. L. Rptr. 365, 1998 WL 61900 (Conn. Super. Ct. 1998). Curiously, the judge in the Stanley Black & Decker case relied in part on the initial decision in the Gonzalez case, apparently unaware that that initial decision had been vacated about a month earlier.
- 88.
249 Conn. 766, 734 A.2d 112 (Conn. 1999).
- 89.
2015 WL 9302912 (E.D. Pa. 2015).
- 90.
Id. at * 9.
- 91.
Id.
- 92.
There is evidence that some employers are voluntarily adopting policies addressing issues of workplace bullying and psychological harassment. See Society for Human Resource Management, Survey Findings: Workplace Bullying (2012) (reporting that 40% of respondents indicated that their organization addressed workplace bullying as part of another workplace policy, while 3% of respondents indicated that their organizations had a separate policy addressing workplace bullying).
- 93.
See L. Camille Hébert, Divorcing Sexual Harassment from Sex: Lessons from the French, 21 Duke Journal of Gender Law & Policy 1, 3 n. 8, 43 (Fall 2013)(discussing concerns expressed by courts about recognition of status-blind harassment as imposing civility codes on the workplace).
- 94.
See Jessica A. Clarke, Beyond Equality? Against the Universal Turn in Workplace Protections, 86 Indiana Law Journal 1219, 1252-58 (Fall 2011) (suggesting that anti-bullying laws might create new disadvantages in terms of inequality, including by stereotyping already disadvantaged groups as bullies and enforcing traditional sexual mores). See also Hébert, supra note 93, at 41–42 (discussing concerns about reliance on dignity rather than discrimination as the primary justification for sexual harassment laws).
- 95.
See Denise Salin, The Significance of Gender in the Prevalence, Forms and Perceptions of Workplace Bullying, 5 Nordiske Organisasjonsstudier 30, (2003) (discussing results of Finnish study reporting that female respondents reported being subject to more bullying than male respondents and that female respondents were bullied by superiors, colleagues, and subordinates, while male respondents were bullied primarily by superiors; results also indicated that female respondents were more likely to report negative consequences of bullying); Denise Salin and Helge Hoel, Workplace bullying as a gendered phenomenon, 28 Journal of Managerial Psychology 235 (2013) (reporting results of empirical studies in a number of nations, some of which suggest comparable levels of bullying of men and women and some of which report significantly higher rates of bullying of women than men).
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Hébert, L.C. (2017). Protections from Workplace Bullying and Psychological Harassment in the United States: A Problem in Search of a Cause of Action. In: Lerouge, L. (eds) Psychosocial Risks in Labour and Social Security Law. Aligning Perspectives on Health, Safety and Well-Being. Springer, Cham. https://doi.org/10.1007/978-3-319-63065-6_16
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