By Emily Sneddon, Esq.
Efforts are underway on several fronts to once again raise the standard of acceptable (and legal) behavior at work. The new area of concern is the elimination of workplace bullying. Quite frankly, if you are a workplace bully, your employment future does not look good.
Some states have considered enacting some version of a model law called The Healthy Workplace Bill, which would hold an employer accountable for a bullying employee in certain circumstances and which would provide a new avenue for the bully to be personally sued.
Even without a new law, bullies already can face some legal liability for their actions. Just ask Dr. Daniel H. Raess, an Indiana cardiovascular surgeon who had to pay $325,000 to a perfusionist who sued him for assault after a workplace meltdown. The perfusionist testified that Dr. Raess was angry over reports to hospital administration about the way Dr. Raess had treated other perfusionists at the hospital. The perfusionist said that while he and Dr. Raess were adjacent to the open-heart surgery area, Dr. Raess aggressively and rapidly advanced on him with clenched fists, beet-red face, popping veins, and screaming and swearing at him. The perfusionist backed up against a wall and put his hands up in front of his face, believing he was about to be struck. Dr. Raess suddenly stopped, turned, and stormed past the perfusionist and left the room, stopping momentarily to state: “You’re finished. You’re history.” Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008).
While the perfusionist prevailed in the Indiana case, the usual tort laws like assault or intentional infliction of emotional distress were not designed with workplace bullying in mind; therefore, victory is not easy on these theories. That is one impetus behind anti-bullying legislation. An Arkansas case provides an example of how bullying behavior can evade punishment under existing laws. In Hollomon v. Keadle, 326 Ark. 168 (1996), an employee lost her tort of outrage claim against an employer who repeatedly cursed her, called her offensive or demeaning names, made degrading and belittling remarks about women, insinuated that he had had other employees killed in the past when they displeased him, and that he could pay $500 to one of his schizophrenic patients “to take care of” anyone he chose. The Arkansas Supreme Court found that the employee’s allegations did not meet the high threshold for a tort of outrage claim in connection with employment. The employer’s win on summary judgment was affirmed.
Although a bully may be able to escape legal liability under current law, the bully may not be able to hold onto his job. More employers are adding “Respectful Workplace” policies to their handbooks. These policies typically prohibit bullying behaviors and impose disciplinary consequences including termination.
What are Bullying Behaviors?
A bully in the workplace is someone who repeatedly engages in any of the following behaviors:
- Verbal abuse or yelling.
- Consistent angry demeanor when interacting with targeted persons.
- Nonverbal actions that are demeaning, threatening, humiliating, or that create unnecessary problems for others, i.e., “mistakenly” throwing away another employee’s lunch, “forgetting” to deliver a message from a spouse, etc.
- Interference with or sabotage of others’ work.
- Isolating the targeted persons from opportunities and outings.
- Throwing or slamming things.
- Withholding information that other employees need.
- Intrusion on the privacy of others by sneaking around to overhear conversations, look at screens on phones or computers, look over employees’ desks and personal items, etc.
- Pretending to be friends with a target in order to discover personal information that will later be used against the target.
- Gossiping and asking inappropriate questions, i.e.: “So how much does she make here anyway?”
- Negative comments about the targeted person’s commitment, abilities, personal life, appearance, financial situation, etc.
- Acting in a way to increase the likelihood that employees will fail in their assignments through a pattern of, for example, changing project requirements in midstream, refusing to provide needed feedback, engaging in constant criticism that is not constructive and aims to undermine an employee’s belief that success in the task can be achieved, giving impossible deadlines, putting unreasonable pressure on employees, or assigning too much work.
- Blaming others for mistakes.
- Taking credit for others’ work.
Are You a Bully?
If you engage in these kinds of behaviors at work, it is time for you to do some sincere self-examination on why you would do such things and why you hold other people in such contempt. You are damaging your employability, your career, and your reputation.
What Is the Difference Between Bullying and Illegal Harassment?
Harassment is unwelcome conduct that is based on a person’s race, color, religion, gender, national origin, disability, age of 40 or older, or on genetic information about the person, i.e., coworkers learn that an employee has the breast cancer gene. Harassment can become unlawful if enduring the harassment becomes a condition of continued employment or if the conduct is severe or pervasive enough that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. Harassment is illegal employment discrimination because the conduct is based on a person’s status in one or more of the legally protected categories. For example, it would be illegal harassment for a supervisor to call Caucasian employees by their correct names but to require all Hispanic employees to respond to the name “Gonzalez.” Employers can potentially be held liable for discriminatory workplace harassment.
By contrast, there is no specific law in some states or federally that makes employers liable for workplace bullying that is not based on a legally protected characteristic such as race. The Healthy Workplace Bill would impose liability on employers and the bully in severe situations of bullying.
Employers Are Beginning to See the Costs.
Employers are starting to realize that bullies cost their businesses a lot of money. Bullies spend a lot of the workday engaging in the activities of bullying rather than doing the work they were hired to do. They distract other employees from their own work by having to deal with bullying. Then there is the fact that employees who are bullied tend to miss work more often. Other employees who are not the direct targets of the bullying frequently get drawn into the drama by being urged to support the bully or the target. The overall office morale is low, turnover becomes high, and there is a massive loss of productivity. Furthermore, employers realize, sooner or later, that by allowing a bully to run unchecked, their place of business will become known as an undesirable place to work and perhaps as an undesirable place for clients to do business.
Bullying Behavior Increases Risk in Professional Offices.
Bullies in a licensed professional’s office are particularly troublesome. If there is a bully in an office, work is not getting done efficiently and communication among coworkers and supervisors is suffering. These breakdowns make an office far more likely to experience serious errors, missed deadlines, “near misses,” and client dissatisfaction.
What if I am Being Bullied?
There are some helpful websites, such as the one for The Workplace Bullying Institute (www.workplacebullying.org) and the one about the Healthy Workplace Bill (www.healthyworkplacebill.org). Advice varies on whether to complain to management about a bully, depending on the receptiveness of management to correcting such problems. Whatever you do, you should not let the bully drive you into violating company policy or doing anything else that could get you fired. While it may not help your immediate situation, it is good to see that identifying and preventing bullying is one of the current hot topics in the human resources arena. Employers’ tolerance for the office bully is eroding. Office bullying is on its way to being recognized as the destructive and unacceptable behavior that it is.
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Emily Sneddon, Esq., of Mitchell, Blackstock, Ivers, and Sneddon, PLLC, was named the Outstanding Woman Law Graduate of the University of Arkansas at Little Rock School of Law in 1994. She was the Associate Survey/Comments Editor, U.A.L.R. Law Journal, and an article by her was published in the U.A.L.R. Law Journal (15 UALR L.J. 299). Prior to becoming a lawyer, she had a career in advertising and in journalism. She was an assistant vice president of a small advertising agency in Little Rock. Before that, she worked as a news copy editor and occasional columnist at the Arkansas Gazette. She was a law clerk for a federal judge in Little Rock before entering private practice. Her practice areas include health care law, employment law, general business and contract law, civil rights law, products liability, aviation law, and education law. Her clients include physicians, healthcare-related companies and organizations, product distributors or manufacturers, and Arkansas school teachers. She is one of the authors of a book published by the Arkansas Medical Society, Physician’s Legal Guide. She has been a speaker on employment law issues in seminars for clients and for attorneys.