Employment Discrimination-When Your Boss is a Bully
It is hard to go one day without a friend, prospective client or acquaintance complaining to me about their boss. Apparently, they are not alone.
Currently, 11 states are considering legislation that would give victims of abuse like taunting and yelling the right to sue for damages. They are Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon and Washington.
Under current federal and state laws, abused employees are only allowed to sue claiming some type of discrimination, such as race, sex or age discrimination.
Should employers be nervous?
Absolutely, say labor and employment attorneys, especially if companies consider a recent poll that found that a majority of Americans want the right to be able to sue a mean boss who taunts or bullies them. That poll, lawyers note, coupled with the proposed legislation should be a wake-up call to corporate America to get abusive bosses under control.
The alliance released the poll last month that found that 64 percent of workers believe an abused worker should have the right to sue to recover damages.
The poll, based on a recent telephone survey of 1,000 American adults, also found that:
• 44 percent of employees have worked for a supervisor or employer who they consider abusive;
• 59 percent have experienced or witnessed bosses criticizing employee performance in front of co-workers.
• 50 percent have been personally insulted by bosses, or have witnessed such insults in the workplace.
• Southern workers are less likely to have experience with an abusive boss (34 percent) than are their Northeastern (56 percent) and Midwestern (48 percent) counterparts.
Connecticut, for example, wants to outlaw "threatening, intimidating or humiliating" conduct by a boss or co-worker and would ban repeated insults and epithets. The proposal doesn't specify a penalty, but would only give workers the grounds to sue.
New York's anti-bullying legislation targets malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant.
Many attorneys meanwhile, believe the proposed bills raise concerns about whether courts or juries should be allowed to regulate workplace behavior.
"The Supreme Court, in making harassment illegal, made clear that you can't have a general civility code in the workplace," said Mark Cheskin, head of Washington-based Hogan & Hartson's labor and employment practice in Florida.
Having said that, however, Cheskin noted that abusive bosses are already creating legal headaches for employers. He said that he's seen an uptick in discrimination cases in recent years. And in most cases, an abusive boss is behind the allegation.
"The abusive behavior gives the plaintiffs' bar what they need to work with," Cheskin said. "But most of the time, bosses are not as bad as the plaintiffs say."
And the courts shouldn't be the forum for griping about a mean boss, said John Barry of New York-based Proskauer Rose's Newark, N.J., office. "A jury has to realize that they cannot be a superpersonnel, human resource committee," he said, citing several court opinions that discuss regulating workplace behavior.
Among the cases was a 2nd U.S. Circuit Court of Appeals 2001 ruling, which held "[The court's] role is to prevent unlawful [employment] practices, not to act as a superpersonnel department that second guesses employers' business judgments." Alfano v. Costello, 294 F.3d 365, 377.
Barry believes the proposed anti-bullying bills are "ripe for abuse" and will expose employers to unnecessary litigation. For example, he said, employees who can't handle valid criticism from supervisors could interpret it as harassment or bullying.
"How is a manager supposed to react in those circumstances?" Barry said. "It can turn into a slippery slope very quickly."
Attorneys note that there is very little case law in the area of bullying.
One landmark bullying case is an Indiana 2005 case in which a heart surgeon was ordered to pay $325,000 after allegedly screaming at and lunging toward an employee following a dispute.
But in December 2006, an appeals court overturned the verdict, claiming the evidence of assault was thin and the depiction of the defendant as a bully was misleading to the jury. Doescher v. Raess, 858 N.E.2d 119 (Ind. Ct. App. 2006).
