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Employers should prepare for a flood of litigation if states approve legislation making it easier for employees to sue over workplace bullying, observers warn.
Anti-bullying bills were approved by the senates of the New York and Illinois legislatures this year, but the legislation stalled in their respective houses.
Observers expect, however, that anti-workplace bullying legislation will be reintroduced next year in those states and elsewhere, and some say eventual passage is likely.
Bullied workers can use existing laws to sue their employers under various causes of action, including sexual, gender, religious and disability discrimination laws. In addition, they can seek relief under federal Occupational Safety and Health Administration regulations. But, the legislation's proponents say, these laws still exclude many, if not most, instances of workplace bullying.
Opponents to the legislation, however, say the term bullying often is vaguely defined and could be inappropriately applied to a variety of behavior, including a lost temper or justifiable terminations or reprimands (see story, page 18).
Workplace bullying is widespread, according to a widely quoted 2007 survey by Utica, N.Y.-based market research firm Zogby International, which was commissioned by the Bellingham, Wash.-based Workplace Bullying Institute. According to the survey, 37% of workers have been bullied, 72% of bullies are bosses and 62% of employers ignore the problem.
David C. Yamada, a professor at Suffolk University Law School and director of the New Workplace Institute, both in Boston, said most anti-bullying legislation, including the measures that failed to win passage in New York and Illinois, are based on a model he originally developed in 2002 call the Healthy Workplace Act, which has been updated several times since.
Many observers expect eventual passage of anti-bullying legislation in some states. Legislation is expected to be introduced in at least a dozen states next year, said Gary Namie, the Workplace Bullying Institute's co-founder and a supporter of the legislation.
“I think we're on the precipice” of success, said Mr. Yamada. “We seem to be getting closer to eventual passage....I think it is just a matter of time.”
“I think it's inevitable,” said Robert Nobile, a partner with law firm Seyfarth Shaw L.L.P. in New York, noting several European countries already have anti-bullying laws.
Anti-bullying legislation has been defeated four times in Oregon, but “it's a matter of time before there is a statute,” said Tamsen L. Leachman, a partner with law firm Dunn Carney Allen Higgins & Tongue L.L.P. in Portland, Ore.
The publicity surrounding the January suicide of 15-year-old Phoebe Prince, who hanged herself after being bullied by classmates, may increase pressure for passage of anti-bullying laws, say some observers.
A major court decision in this area was a 2008 opinion by the Indiana Supreme Court in Daniel H. Raess, M.D. vs. Joseph E. Doescher in which the court upheld a $325,000 jury verdict for an assault claim brought by Mr. Doescher.
The case involves a 2001 incident, in which Dr. Raess, a cardiovascular surgeon, became angry at Mr. Doescher, who runs an operating room heart/lung machine, causing Mr. Doescher to back up against a wall and raise his hands in defense, according to court documents.
“The legal issues in that case are mostly procedural and evidentiary, so they don't really establish any broad precedent in terms of bringing bullying-related claims,” said Mr. Yamada, who believes this issue must be addressed through legislation rather than the court system.
Some observers believe, though, that there is no need for such legislation. “There are already existing laws that cover virtually every instance of workplace bullying if it's severe and intentional and consistent enough,” including discrimination laws and OSHA regulations, said John S. Ho, an attorney with law firm Bond, Schoeneck & King P.L.L.C. in New York.
However, Seyfarth Shaw's Mr. Nobile said there is a gap in these existing laws. “They don't cover conduct that is not based on one's status in a protected group or class so, in effect, this type of legislation fills that gap” if there is abusive treatment by a supervisor, said Mr. Nobile, who believes, though, that the issue can be controlled through the use of effective employer practices and training.
Many observers believe passage of anti-bullying legislation will lead to increased litigation against employers. Anti-bullying legislation could open the floodgates to litigation against employers “because every mean boss could create liability for a company,” said Susan K. Lessack, a partner with law firm Pepper Hamilton L.L.P. in Berwyn, Pa.
D. Michael Reilly, a shareholder with law firm Lane Powell P.C. in Seattle, said his concern is “the definition of bullying is not real clear, and because there is not a lot of case law” defining it, “it's going to be tough for employers to know how to comply with the law. It will probably be a paradise for many people who would like to sue because it would be tough to get these cases resolved short of a full-blown trial.”
An anti-bullying law will create a cause of action where one does not exist, said Garry G. Mathiason, a shareholder with law firm Littler Mendelson P.C. San Francisco. Plaintiffs in such lawsuits may not win, but filing a lawsuit increases employers' costs, plus there is the potential cost of nuisance settlements, Mr. Mathiason said.
Jonathan T. Hyman, a partner with law firm Kohrman Jackson & Krantz P.L.L. in Cleveland, said such legislation also will hamstring employers because “they'll be afraid of being sued if they are being too harsh.” It could result in “employees having the potential to run the workplace because every petty slight or annoyance is going to be trumped up into this idea of bullying,” he said.
Employers should prepare for possible legislation, say observers. Ms. Leachman said: “We're at the point where employers can choose to deal with this on their own terms, and not have a statute that mandates what they must do.”
“Employers would be smart to review their harassment policies,” said Mr. Ho. “A good harassment policy is not going to be limited to just sexual harassment,” he said. And if a law eventually is passed, “you would have to specifically create a workplace bullying policy. What it looks like will obviously depend on the law as written,” he said.