The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case.
Currently, no federal or state law explicitly prohibits bullying in the workplace. In the past 10 years, however, 25 states have introduced some iteration of an anti-bullying bill titled the “Healthy Workplace Bill.” New York, for example, has a version of the Healthy Workplace Bill currently pending before its legislature. New York’s proposed law proscribes “abusive conduct” that creates an “abusive working environment.” Abusive conduct is defined as: “acts, omissions, or both, that a reasonable person would find abusive . . . including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.” Under the legislation, an employee who establishes a violation is entitled to, among other things: reinstatement, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney fees. Employees may also be held individually liable for violations. The proposed law includes limited affirmative defenses (e.g., where the adverse employment action was based upon a reasonable performance evaluation).
Ten other states currently have similar legislation pending. While it is uncertain whether any will actually become law, the prevalence of this type of legislation shows that anti-bullying is a growing concern among legislators and employers must take steps to combat it.
Legal Exposure for Workplace Bullying
Even though current law does not explicitly ban bullying, bullying conduct nevertheless can expose employers to legal liability under a variety of federal, state, and local laws. Most employees who file suit for bullying type behavior do so under laws prohibiting discrimination, harassment, and retaliation. For example, an employee who was bullied because of his race may have an actionable claim under Title VII (or a state’s anti-discrimination law, such as California’s Fair Employment and Housing Act (FEHA)), despite the fact that “bullying” itself is not unlawful. Employees may also attempt to bring claims under the Occupational Safety and Health Act (OSHA), the National Labor Relations Act (NLRA), some state workers’ compensation acts, or state tort law for intentional infliction of emotional distress. Finally, the bully may be sued individually under a tortious interference theory (i.e., the bully intentionally and maliciously interfered with the employee’s business relationships resulting in harm).
Given the legal exposure for workplace bullying, not to mention the potential morale problems, employers who have not done so already should consider implementing written policies that prohibit this type of conduct in the workplace. An effective anti-bullying policy needs to: define what constitutes bullying (e.g., name-calling, hazing, etc.); detail how complaints will be investigated; and prohibit retaliation against those who do complain. Because bullying itself is not illegal, the definition of what constitutes bullying will vary among employers. In addition, while some companies’ harassment policies may be robust enough to cover acts of bullying, employers should also consider two stand-alone policies. And, of course, no policy is effective if the employees are not aware of the policy and supervisors and management do not know how to properly enforce it. As such, an effective anti-bullying policy must include training.