Workplace bullying: Serious issues for employers

According to a recently released in-depth study of workers by the RAND Corporation, Harvard Medical School, and the University of California, Los Angeles, nearly one in five Americans felt they were exposed to a hostile or threatening environment at work.

The recent study is similar to findings of a 2017 survey conducted by the Workplace Bullying Institute specific to workplace bullying that concluded workplace bullying affects 60 million Americans.

Workplace bullying presents serious issues for employers. Not only can it lead to lower employee moral and productivity, it has potential legal consequences. In addition, victims of such behavior may leave the organization, work effort will be displaced as employees cope with bullying incidents and costs certainly could be incurred in investigating allegations of bullying and in defending against legal claims. Thus, employers are well advised to address bullying and disruptive behavior in the workplace at an early stage.

Workplace bullying can generally be described as "abusive conduct." It has been described as repeated and unreasonable actions of individuals (or a group) directed toward an employee (or a group of employees) intended to intimidate, degrade, humiliate or undermine; or which create a risk to the health or safety of the employee(s).

Workplace bullying often involves an abuse or misuse of power and can be exhibited by a variety of personality types from aggressive, manipulative, or intimidating conduct to "the silent treatment." Bullying behavior creates feelings of defenselessness and injustice in the target and undermines an individual's right to dignity at work. Such behavior is often is committed by a supervisor; however, bullying situations may involve employees bullying their peers.

A number of states are considering legislation, often referred to as the Healthy Workplace Bill, specifically prohibiting workplace bullying. Both the Washington and Oregon legislatures are considering bills that create civil liability for "abusive conduct" or an "abusive work environment." No similar bill has been proposed in Idaho.

Even without specific statutory protections, it may be possible for a victim of workplace bullying to assert claims under various theories. For example, there may be claims under Title VII and/or the Idaho Human Rights Act for a hostile work environment. However, in order to assert such a claim, the victim must be a member of a protected class, such as sex, age, national origin, or religion. Such a claim is actionable where the discriminatory intimidation was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." See Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). Further, the working environment must be both subjectively and objectively be perceived as abusive.

One common law legal theory for seeking relief for emotionally abusive treatment at work has been the tort of intentional infliction of emotional distress. However, the burden of proof for sustaining this tort is high and typical workplace bullying seldom results in liability under this theory. This is because courts have tended to find workplace bullying cases lack two of the required elements either that the conduct complained of was not sufficiently severe or outrageous, or that the employee did not suffer severe emotional distress.

It may also be possible that bullying constitutes intentional interference with the employment relationship, another tort theory that potentially may be invoked as a response to workplace bullying. Under this theory, the victim would need to argue that the interfering "third party" is a supervisor or co-worker who is acting outside the scope of his or her employment relationship by bullying the employee and in so doing is adversely affecting the relationship between the victim and the employer.

Finally, victims of bullying may be able to rely on disability discrimination statutes where employees are subjected to bullying treatment at work because of their protected class membership. However, generic behavior not overtly grounded in protected class status, such as most instances of bullying, may not be actionable.

Even though there may not be direct legal remedies for workplace bullying, employers should still take steps to decrease the risk of such conduct and appropriately respond when it does occur. These steps include the following:

-Create an anti-bullying policy. This policy should be part of the employer's wider commitment to a safe and healthy working environment and should have the full support of top management;

-When witnessed or reported, bullying behavior should be addressed immediately;

-Complaints of bullying should be taken seriously and investigated promptly. Remedial action should be taken as appropriate;

-Encourage reporting of bullying behavior;

-Ensure management is interacting with the staff they supervise, rather than being far removed from them;

-Encourage open door policies;

-Investigate the extent and nature of the problem. Employee surveys may be helpful in this regard;

-Provide training for managers for responding to bullying conduct; and

-Establish numerous points of contact for employees (e.g., human resources).

In conclusion, bullying in the workplace cannot be condoned or ignored. By implementing and enforcing workplace policies which address bullying can help with productivity and moral, and guard against potential liability in the future.


Carsten Peterson is an attorney with Hawley Troxell and has a civil litigation practice that includes personal injury, medical malpractice claims, insurance coverage, uninsured and underinsured motorist claims, insurance bad faith, employment discrimination, wrongful termination, employment wage disputes, and transportation liability.

Published: Fri, Aug 25, 2017