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NEW YORK — Punctuated by a recent high-profile incident involving the Miami Dolphins pro football team, the growing prevalence of workplace bullying could lend substantial support to many states' efforts to outlaw the behavior, experts said Tuesday.
Sixty-eight percent of employers surveyed last year by Utica, N.Y.-based Zogby International indicated that workplace bullying is a serious problem. Fewer than one-third said it does not occur among their employees.
Since 2003, as many as 25 states have attempted to pass legislation that would permit employees to sue their employers for creating or failing to remedy an abusive work environment — one in which employees have been caused significant physical or mental harm or experienced an established pattern of targeted employment actions against them.
In most cases, the proposed laws have been based on a bill drafted in 2001 by Suffolk University law professor David Yamida, the Healthy Workforce Bill.
Thus far, legislative efforts have been unsuccessful, panelists said Tuesday at the American Conference Institute's 20th National Employment Practices Liability Conference in New York.
“As prevalent as workplace bullying has become, and despite all of the legislation that's been introduced regarding bullying in the last few years, it's still not actually illegal,” said Elizabeth Roussel, a New Orleans-based partner at Adams & Reese L.L.P.
That may change in the near future, Ms. Roussel said, particularly given the amount of media attention paid to workplace bullying in the wake of Miami Dolphins offensive lineman Richie Incognito's indefinite suspension following allegations that he consistently victimized one of his teammates.
“I think the thing we all can take away from the Richie Incognito incident was that really no one is immune to this kind of thing,” Ms. Roussel said.
Mounting awareness by employers and the public in general of the prevalence and potentially harmful effects of workplace bullying could make the difference for lawmakers in 11 states seeking passage of anti-bullying legislation this year.
However, panelists warned that such legislation—depending on its exact wording—would expand anti-workplace bias and harassment rules beyond existing protected classes to include essentially all employees, leaving employers considerably more vulnerable to litigation.
“Employers and (employment practice liability insurance) underwriters should be very concerned about any of this legislation being passed, at least in its current form,” said Joseph Starr, a partner at Starr, Butler, Alexopoulos & Stoner P.L.L.C. in Southfield, Mich. “It would basically create an unlimited protected class for discrimination and harassment claims, and it would make it pretty easy for any employee to bring an action against their employer.”
Panelists noted that employees victimized by workplace bullying can already pursue legal action against their employers as well as individual perpetrators for a range of offenses that do not necessitate elements of bias, including defamation, infliction of emotional distress, negligent hiring or supervision, criminal assault and/or battery, retaliation stemming from a criminal complaint and public policy claims.