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Judy Greenwald

Workplace bullying is a growing, complicated problem for employers

Pressure builds to pass laws targeting problem

February 16, 2014 - 6:00am



Workplace bullying is a growing, and often complicated, problem for employers.

A stagnant job market, with workers who feel stuck in jobs in which they are subject to bullying, may be exacerbating the situation, industry experts say.

Since 2003, legislation banning workplace bullying has been considered in 26 states, but no state has passed a law, according to the Bellingham, Wash.-based Workplace Bullying Institute. Earlier this month, the latest bill was introduced in Tennessee.

Workplace bullying is not recognized as a claim under federal law, but legal experts say it often is an underlying factor in litigation when the stated charge may be sex or racial discrimination. Experts say they think juries have become more sympathetic to bullying claims.

The issue attracted national attention late last year, when Miami Dolphins professional football player Jonathan Martin accused teammate Richie Incognito of bullying him, and then left the team. On Friday, the lawyer hired by the National Football League to investigate the matter released a report concluding that Mr. Incognito “engaged in a pattern of harassment'' of Mr. Martin. Mr. Incognito's lawyer said the report was wrong and promised a counter report.

To be sure, more workers are feeling bullied in the workplace, according to a survey of 3,892 workers nationwide released by Chicago-based CareerBuilder L.L.C.

The 2012 survey found that 35% of workers said they were bullied at work, compared with 27% the previous year. Among workers who said they were bullied, 48% said it involved incidents with their bosses, while 26% said it involved someone higher up in the company than their bosses.

Otherwise, of those who said they were bullied, 45% cited their co-workers and 31% said it involved customers, according to the survey. Of the 27% of workers who reported the bullying to their human resources departments in 2012, 57% said nothing was done.

Experts say bullying often takes the form of ostracism. Bullies may isolate their victims by forbidding colleagues' contact with them; move their work site to a remote location; delete their names from group emails; and not inform them of meetings. Yelling, swearing and other public displays “are actually kind of rare,” Workplace Bullying Institute national director Gary Namie said.

Workplace bullying is “a significant problem and it can lead to workplace violence,” said Sean Ahrens, Chicago-based practice leader for Aon Group Consulting.

With today's economy, workers' “escape route is blocked,” Mr. Namie said. “Individuals used to be able to leave the job and find something fairly comparable and they can't now, so they feel trapped” and stay in their jobs longer, which allows bullies “to ratchet up the abuse if it suits them.”

David C. Yamada, a professor at Suffolk University Law School and director of the New Workplace Institute, both in Boston, has developed a workplace anti-bullying model bill. He said the issue is getting “more and more attention,” making the prospects for legislation “rather good.”

“Legislation is a great opportunity for organizations to recognize the need to have anti-bullying policies in their organization,” Mr. Ahrens said. “From that standpoint, I think it's beneficial.”

Mark A. Lies II, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said, “I am in favor of some type of legislation in the area, but I'm also concerned that sometimes the legislation goes too far” and causes other problems.

“It's got to be evenhanded and it's got to be done in such a way that the rights of everyone in the situation are respected,” Mr. Lies said. Automatically assuming a supervisor who is accused of bullying is guilty “is not fair, either.”

Susan K. Lessack, a partner with law firm Pepper Hamilton L.L.P. in Berwyn, Pa., raised another point.

“Legislation could really open up a Pandora's box of litigation,” she said. “I think there are people who don't currently have a legally cognizable claim, who feel that they've been treated harshly and perhaps feel empowered to bring a claim if legislation were to pass,” which would trigger more litigation.

Even though no state laws on workplace bullying have been enacted and it is not recognized as discrimination under federal law, the issue has sometimes been shoehorned into other existing laws, Mr. Yamada said. Those include discrimination laws and anti-retaliation provisions in whistle-blower laws.

“An individual says, "You're bullying me because of my race'” and files litigation under civil rights law, Mr. Lies said, citing an example.

In what has been labeled the largest single judgment for a single victim of workplace harassment in U.S. history, Ani Chopourian, a physician assistant who claimed she had been bullied by a surgeon at Mercy General Hospital in Sacramento, Calif., was awarded $168 million by a jury in 2012. Ms. Chopourian's attorney said the case has since been settled for an undisclosed amount.

Juries are becoming more sympathetic to the alleged victims of workplace bullying, experts say. “Some of these cases are getting traction in terms of juries accepting the mental anguish associated with bullying” and believing employers either knew about, or should have known about, the bullying, said Tamsen L. Leachman, a shareholder with law firm Littler Mendelson in Portland, Ore.

“I believe people are much more sensitive to it now, and don't just say, "Buck up,' or "Man up,'” she said.

 



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