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 Icognito 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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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