August 15 2008 0comment

Bullies Beware: Employees Have More Options — Including Court — to Confront Bad Bosses

Lisa van der Pool
Boston Business Journal

To the chagrin of employees everywhere, it’s not illegal for bosses to be jerks. But a recent jury decision to award a $325,000 judgment for assault to a hospital technician who was bullied by a supervising surgeon has captured the attention of the legal community and called into question whether plaintiffs now have more ammunition going into workplace bullying cases.

In the Indiana Supreme Court case in April, the plaintiff testified that he was confronted by his supervising surgeon who threatened him with “clenched fists, piercing eyes … and popping veins,” according to press reports. The plaintiff’s expert in the case then described the confrontation as “workplace bullying” and termed the surgeon a “workplace abuser,” although there is actually no legal claim for workplace bullying.

“The ability to bring an assault claim is not surprising at all,” said Joshua M. Davis, an employment lawyer at the law firm Goulston & Storrs PC in Boston. “What’s interesting about the case is that the plaintiff tried to offer evidence about workplace bullying.”

Because there is no workplace bullying legal claim, U.S. workers have few legal methods to stop bullies who manage through intimidation, fear, and the occasional tossed chair, but some lawmakers are calling for a change in Massachusetts law that would place more liability on the employer.

Meanwhile, employment lawyers say that companies need to establish policies designed to discourage office bullies, who fuel lost productivity, costly attrition and poisonous office cultures. The issue is especially urgent, according to some, because bullies tend to act out more during economic downturns, as all workers face increased pressure to deliver results with fewer resources.

The phenomenon of workplace bullying is widespread. About 37 percent of American workers, or about 54 million people, said that they’ve been bullied at work in a 2007 online survey of 7,740 people last year from The Workplace Bullying Institute in Bellingham, Wash. According to the survey, bullying is four times more prevalent than illegal forms of harassment such as sex harassment or age discrimination. The survey also found that 72 percent of bullies are bosses and that women are targeted by bullies more frequently.

Only 3 percent of bullied workers file lawsuits, according to the survey.

“We’re still at a point where a lot of companies don’t want to cover workplace bullying because it’s not required by law,” said David Yamada, a professor of law at Suffolk University and director of the New Workplace Institute in Boston.

Yamada, who defines workplace bullying as “severe, repeated, malicious mistreatment of a worker to the point where there is demonstrated physical and psychological harm,” has penned proposed legislation called “The Healthy Workplace Bill” that would provide certain legal protections for workers who have been targeted by an office bully, including compensation. The legislation would also impose liability on both the individual perpetrator and his or her employer. Yamada is currently seeking a legislative sponsor for the bill.

“I think we need to fill in that gap in the law,” said Yamada. “It’s a tough balancing act. You want to give people who’ve been severely mistreated some legal right to claim compensation, but you don’t want to open the floodgates to frivolous litigation.”

State Rep. Ellen Story, D-Amherst, is the sponsor of “An Act Relative to Bullying in the Workplace,” a bill that has been floating around the Legislature since 2005. The bill is dead for the year but her office plans on re-introducing it into next year’s session. Story’s bill focuses on requiring companies to establish anti-harassment policies, among other things.

Specific anti-bullying policies at companies are rare, but most businesses have anti-harassment policies, according to Philip J. Gordon, an employee-side lawyer at Gordon Law Group LLP in Boston, who has seen an uptick in calls about bullying recently.

“The problem with companies is not that they don’t have good policies, it’s that they don’t follow them,” said Gordon. “Bullying isn’t good for employee retention. Your culture stinks if you have a bully in the office and your employees won’t stay.”

Indeed, human resources departments should be ready to flag potential bullies and confront them about their behavior, said Jay Hargis, author of the blog “HRCleanup” and a vice president at human resources management firm Profiles International Inc. Hargis, who calls office bullies “culture misfits,” says that bullying tends to get worse in times of stress. “HR needs to be braver and really get in and address these kinds of problems quickly,” said Hargis.

Meanwhile, employees being bullied are left with few options. When Davis gets calls about office bullies, he checks to see if there is an underlying age, sex or race discrimination problem and then he evaluates whether the bully’s actions will create a negative atmosphere that might lead to a lawsuit.

Recently Davis came across a situation where a supervisor routinely called his employees at home, after hours, to complain about the quality of work they’d done during the day. One of his female employees claimed that he was causing her emotional distress, but she was unable to prove it in court.

“The danger of not taking action against people who mistreat employees is that it makes the company look like they endorse that behavior,” said Davis.