The National Pulse

No Putting Up with Putdowns

As states eye workplace bullying bills, employment lawyers see flood of lawsuits

Posted Feb 1, 2008 11:43 AM CDT
By Wendy N. Davis

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David Yamada.
Photo by Tracy Powell

Accounting manager Joan Frye was working at her job at St. Thomas Hospital in Nashville, Tenn., for only a few days when she began having problems with her new boss. “From the very beginning,” Frye says, “she would put me down. Anything I would do was nev­er right.”

For almost two years, Frye endured what she perceived as hostile and undermining behavior—her boss holding meetings without her, declining to introduce her to other managers, and criticizing seemingly inconsequential decisions such as whether to deliver a message in person or via e-mail.

Frye, who transferred to another hospital owned by the same parent company to get away from her boss, ultimately left the company after she collapsed at work and was diagnosed with post-traumatic stress disorder.

Like many disgruntled employees, she sought redress in court. In 2003, Frye sued in state court in Tennessee, claiming age discrimination (she was 54 when hired and her boss, Catherine Doyle, was 41) and intentional infliction of emotional distress. But the case was thrown out on her employer’s summary judgment motion. The trial court held that she hadn’t proven age discrimination and the conduct wasn’t severe enough to constitute emotional distress.

Last March, the Court of Appeals of Tennessee at Nashville agreed, ruling that Frye’s boss was an “oppressor” but didn’t discriminate based on her age. “Nothing in the record established that Ms. Doyle treated age-protected employees any differently than nonprotected employees. Rather, the testimony clearly showed that Ms. Doyle was an equal opportunity oppressor, using her intense, dominant, abrupt, rude and hard-nosed management style on all St. Thomas employees.” Frye v. St. Thomas Health Services, 227 S.W.3d 595.

Altogether, Frye spent $400,000 to litigate the case and appeal.

NO SURPRISE

Employment lawyers say the result shouldn’t have been unexpected. It has long been the case that employees don’t have grounds to sue their employers simply for a “hostile” work environment, unless the hostility is based on race, religion, gender, age or another category protected by civil rights laws. In other words, as long as bosses treat everyone equally poorly, there’s little ground for a lawsuit.

As the Tennessee appellate court said, without proof of age bias, “the fact that a supervisor is mean, hard to get along with, overbearing, bellig­erent or otherwise hostile and abusive does not violate civil rights statutes.”

That might soon change. In the last several years, legislation has been introduced in 13 states to allow people to sue their employers for bullying or offensive behavior even when the conduct doesn’t meet standards for discrimination or infliction of emotional distress.

Some employment lawyers say these bills, which allow people to litigate for a vast array of incivilities, will generate an endless stream of lawsuits.

“All of a sudden, you’re going to have people who are bringing all kinds of suits to change the bad manners of the boss,” says Richard Block, an employment lawyer with Dreier in New York City.

A Zogby International poll conducted in September on behalf of the Bellingham, Wash.-based Workplace Bullying Institute revealed that 37 percent of U.S. work­ers, or 54 million people, have been bullied at work.

Supporters of the anti-bullying movement, however, say these laws will give companies an incentive to rein in abusers. “The goal is not to tortify the workplace, but to compel them to do the right thing,” says psychologist Gary Namie, who founded and directs the nonprofit institute along with his wife, Ruth.

Namie and others say companies can be reluctant to fire office bullies because they often ingratiate themselves with their own bosses or are good producers. What’s more, there’s nothing illegal in simply giving other people a hard time at work.

Much of this percolating legislation was modeled on a draft by David Yamada, a professor at Suffolk Univer­sity Law School in Boston who has been working with Namie. “There are some serious gaps in the law in terms of workplace bullying,” says Yamada, who studies harassment in the workplace.

Yamada says he has experienced or witnessed bullying behavior in the legal world and in academia. Typic­ally, he says, people victimized by bad bosses end up quitting. “It strikes me as being horrifically wrong,” Yamada says, “that targets are the ones to pay the price.”

‘INSIDIOUS’ CONDUCT TARGETED

The pending bills vary slightly, but the gist of them is to allow employees to sue when bosses or other colleagues mistreat them.

Yamada intends for the legislation to cover at least two categories of workplace bullying. The first is the boss who openly berates employees. The poster child for this type of personality, he says, is the former U.S. ambassador to the United Nations, John Bolton. During his 2005 confirmation hearings, he was accused of being a “serial abuser” and “quintessential kiss-up, kick-down sort of guy.”

But Yamada’s proposal doesn’t stop with giving employees grounds to sue the yellers and screamers. He says he would also allow workers to sue for “the more hurtful and insidious” types of conduct—the backstabbing, subtle undermining and sabotaging that exist in many workplaces.

The language of New Jersey’s pending Healthy Work­place Act is typical. That bill, introduced in 2006, says abusive conduct includes “repeated infliction of verbal abuse such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of a person’s work performance.”

The bill’s sponsor, Assemblywoman Linda R. Green­stein, says she hopes the law gives employers an incentive to stop workplace bullying. “The goal is not to cre­ate more litigation,” she says. “It’s to make the employers make sure that these things are not happening.” Greenstein planned to reintroduce the bill if it died at the conclusion of the 2007 legislative session.

But some employment lawyers say the statute’s definition of bullying is so broad that it allows people to sue for what essentially is office politics. “It’s inconceivable to me that there will be court rem­edies for those kinds of things,” Block says. “Corporate politics is corporate politics.”

Even when employees allege discrimination, adds Block, courts hesitate to hold employers liable unless the conduct is egregious. “Courts have gone out of their way not to take cases where conduct is merely offensive,” he says. “Courts don’t want to be bombarded with a ton of claims.”

Similar bills have also been introduced in California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New York, Oklahoma, Oregon, Vermont and Washington. None has been passed.

COST ISSUES WEIGHED

Whether the pending statutes will actually encourage litigation depends on a variety of factors, includ­ing potential remedies.

Nancy Hoffman, a lawyer for the Civil Service Em­ployees Association in Albany, N.Y., and a former vice-chair of the ABA Labor and Employment Law Section, says that enacting legislation could be a hollow gesture unless employees can bring cases to an agency in lieu of bringing a potentially costly lawsuit.

“A lot depends on whether working people will have any meaningful way to enforce it,” Hoffman says. Many workers, she says, simply can’t afford to sue, even when they have legal grounds. “If there’s an agency to enforce it, that at least levels the playing field.”

Additionally, the New Jersey bill caps damages at $25,000, meaning it could well cost plaintiffs more to bring a case than they could recover. But other states, such as Connecticut, don’t have a cap on actual damages and also provide for punitive damages.

The pending statutes also provide incentives for employers to handle abusive situations on their own. Yamada’s model bill says that employers generally have a defense if they have used reasonable care to prevent and/or correct the problem and employees failed to avail themselves of the measures.

Still, even with the safeguards for employers and the potential costs of litigation, some lawyers are predicting a wave of new cases should these laws be enacted.

“You’re talking,” Block says, “about a lifetime annuity of work for employment lawyers.”

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