phenomenon of “workplace bullying” and the need for status-blind hostile work environment protection, The
Yamada, David C
They sometimes are called “bullies,” “tyrants,” or “jerks:” However, regardless of how they are described (usually) out of earshot, bosses and others who inflict psychological abuse on their coworkers constitute one of the most common and serious problems facing employees in today’s workplace.1 Of course, to many who have toiled for years in America’s offices and factories, this observation simply states the obvious: intimidating, mean-spirited, manipulative, and sometimes high-decibel behaviors are not unusual workplace occurrences, especially from supervisors or managers.2 The unfortunate targets of abuse usually have to chalk up their experiences to bad luck and the ordinary costs of being employed.3
In recent years, however, we have begun to gain a more sophisticated understanding of the phenomenon called “workplace bullying.” In particular, scholars, therapists, and industrial psychologists have begun to create a conceptual framework for analyzing workplace bullying.4 It is now possible to generalize about the types of bullies that exist, the tactics they use, the targets they tend to seek out, and the individual and systemic consequences of their behavior. The emerging literature on workplace bullying confirms that this behavior inflicts harmful, even devastating, effects don its targets and can sabotage employee morale in ways that severely undercut productivity and loyalty.
Given the negative ramifications workplace bullying has far employees and employers, one might naturally look to the legal system to encourage employers to prevent and punish bullying behavior and to provide relief to employees when it occurs. Unfortunately, the growing body of statutory and common-law protections for workers-particularly status-based employment discrimination laws and tart claims for emotional distress-have not been effective against workplace bullying. Consistent with the law’s historic reluctance to regulate the everyday employment arena, workplace bullying has yet to be fully recognized and addressed by the American legal system. For example, as will be discussed below, claims far intentional infliction of emotional distress (IIED) arising out of the workplace are seldom successful, and many courts have held that these claims are preempted by workers’ compensation statutes. Furthermore, bullying behavior fueled by discriminatory intent often falls outside the protections of the hostile work environment doctrine promulgated under employment discrimination statutes. For now, abusive behavior that is considered harmful to employees and employers alike is rarely illegal.
The legal implications of workplace bullying have yet to be fully examined by the academic community. Although legal scholars have examined workplace IIED claims,5 these treatments were published before the recent emergence of a significant body of research on workplace bullying.6 Therefore, the impact of lIED case law on workplace bullying has yet tee be adequately addressed. In addition, the existing analyses of employment law predate the development of modern hostile work environment doctrine. Accordingly, there is a need to compare the latest behavioral and business management research with legal analyses of the IIED and the hostile workplace doctrines and to weigh the impact of evolving legal standards governing discrimination and harassment claims.
This article will explore the phenomenon of workplace bullying and consider the potential legal responses to this pervasive problem. As demonstrated below, existing legal doctrines such as lIED and statutory schemes do not adequately prevent workplace bullying or compensate bullied employees who suffer emotional, physical, and economic damage at the hands (or words) of a bully. This article will propose a statutory cause of action to give the bullied employee true legal recourse against the bully and his or her employer.
Part I of this article examines workplace bullying from the perspectives of psychology, economics, and industrial relations. Workplace bullying will be defined, and its harmful effects on individuals and employers will be explained. In addition, this part discusses the social and economic conditions that support workplace bullying and point to a likely increase in this behavior in the future. Part II identifies the policy goals that should shape a legal response to workplace bullying and then analyzes potential existing legal theories that may be invoked to combat it, most notably the tort of intentional infliction of emotional distress (IIED) and the status-based employment discrimination statutes. Part III proposes a better legal response to workplace bullying-a new statutory cause of action called “intentional infliction of a hostile work environment” that draws from sexual harassment hostile work environment doctrine and tort law. Ultimately, this article concludes that through the proposed cause of action the legal system will play a stronger role in both preventing and punishing workplace bullying and in compensating the targets of this objectionable behavior.
1. MAPPING THE WORLD OF WORKPLACE BULLYING
In an apparent reaction to the changing work environment of the late Twentieth Century, a growing volume of material has been recently published on workplace bullying both in books directed at popular audiences7 and in academic journals directed at scholars, psychologists, and therapists.8 In addition, our understanding of bullying has been greatly enhanced by the scholarly and advocacy work of researchers and labor activists in other nations.9 The following discussion, drawing on this new explosion of material, will attempt to define workplace bullying, consider its effects on workers and employers, and place it in the context of the modern economy.
A. DEFINING AND EXPLAINING WORKPLACE BULLYING
1. Definitions of Workplace Bullying
Scholars who principally study workplace bullying and its effects have advanced several competing definitions of the phenomenon. A brief survey of those definitions, however, uncovers that most scholars agree upon what behaviors constitute workplace bullying. The two individuals most responsible for popularizing the term “workplace bullying” in the United States-Gary Namie, an industrial psychologist, educator, and founder of the nonprofit U.S. Campaign Against Workplace Bullying, and Ruth Namie, a psychotherapist specializing in assistance to targets of abusive work environments–describe it as “the deliberate, hurtful and repeated mistreatment of a [t]arget…by a bully…that is driven by the bully’s desire to control [another person].”10 The team “bullying” includes “all types of mistreatment at work.”11 Under the Namies’ broad conceptualization, legally actionable sexual harassment can be seen as a type of workplace bullying.12
Social psychologist and professor Loraleigh Keashly refers to workplace bullying as “emotional abuse,” characterized by “hostile verbal and nonverbal, nonphysical behaviors directed at a person(s) such that the target’s sense of him/herself as a competent person and worker is negatively affected,”13 Under Keashly’s conceptualization, power imbalances between the bully and target usually are present. “In the majority of studies” examined by Keashly, “superiors are most frequently reported as actors of these behaviors,” although peers and subordinates also can play this role.14
Researchers Noa Davenport, Ruth Schwartz, and Gail Elliott emphasize the effects of abusive group behavior on the individual. They have adopted the term “mobbing,” which is commonly used in Europe.15 They describe it this way:
Mobbing is an emotional assault. It begins when an individual becomes the target of disrespectful and harmful behavior. Through innuendo, rumors, and public discrediting, a hostile environment is created in which one individual gathers others to willingly, or unwillingly, participate in continuous malevolent actions to force a person out of the workplace.16
Each of these definitions include certain characteristics that should be included in any understanding of workplace bullying. In sum, workplace bullying can be described as the intentional infliction of a hostile work environment upon an employee by a coworker or coworkers, typically through a combination of verbal and nonverbal behaviors.
2. Bullies and Their Behaviors
A recent survey by management professor Christine Pearson of 775 targets of workplace incivility and aggression found that sixty percent of the “instigators” of these behaviors “were of higher institutional status than the target,” while “20 percent were of equal status” and “20 percent were of lower status.”17 Seventy percent of the instigators were male, and men were much more likely than women to inflict their actions on those of lower status.18
Although the term “bullying” may connote physical and verbal aggression, targets of workplace bullying report a variety of overt and covert behaviors. Keashly’s list of abusive behaviors includes the following:
aggressive eye contact, either by glaring or meaningful glances; giving the silent treatment; intimidating physical gestures, including finger pointing and slamming or throwing objects; yelling, screaming, and/or cursing at the target; angry outbursts or temper tantrums; nasty, rude, and hostile behavior toward the target; accusations of wrongdoing; insulting or belittling the target, often in front of other workers; excessive or harsh criticism of the. target’s work performance; spreading false tumors about the target; breaching the target’s confidentiality; making unreasonable work demands of the target; withholding needed information; taking credit for the target’s work.19
An online survey of self identified bullying targets and witnesses conducted by the Namies similarly reported the following as the most common tactics, listed from most to least frequent: blame for “errors,” unreasonable job demands, criticism of ability, inconsistent compliance with rules, threats of job loss, insults and put-downs, discounting/denial of accomplishments, exclusion or “icing out,” yelling and/or screaming, and stealing credit.20
Management professors Joel Neuman and Robert Baron have constructed a model that places each type of aggressive or abusive behavior into one of three categories-“Expressions of Hostility,” “Obstructionism,” or “Overt Aggression.”21 “Expressions of Hostility” may include “(i)nterrupting others when they are speaking/talking,” “(f)launting status/acting in a condescending manner,” and “(l)eaving the work area when the target enters.”22 Obstructionism includes behaviors such as “(f)ailure to return phone calls or respond to memos,” “(s)hawing up late for meetings run by target,” and “(f)ailing to defend target’s plans to others.”23 “Overt Aggression” covers acts or threats of physical violence, as well as destruction, theft, or sabotage of the target’s work materials.24 The Lists of behaviors compiled by these researchers indicate the broad range of behavior that must be addressed by a legal cause of action aimed at workplace bullying.
The Namies determined that the targets of bullies fit three common profiles. First, “nice people” are often targeted because bullies figure nice people are unlikely “to confront or stop them.”25 Second, “vulnerable people” present a nonthreatening profile by their words and actions.26 Third, bullies target the “bold, best, and brightest.” 27 Haunted by feelings of inadequacy, bullies “lash out at others who threaten their presumption of superiority” by doing what they can to undermine them.28
Bullies and their behaviors can take on various forms, However, the emerging research suggests that certain patterns are becoming clear. First, bullies are likely to be male and/or of institutionally superior status to the target. Second, bullying behaviors vary widely, covering a variety of overt and covert and verbal and nonverbal acts that undermine a target’s ability to succeed at her job. Third; bullies seek out agreeable, vulnerable, and successful coworkers, often motivated by the bullies’ own feelings of inadequacy.
3. The Effects of Workplace Bullying on Workers and Their Employers
Workplace bullying can have: serious, even devastating, effects on targeted individuals. Psychological effects include stress, depression, mead swings, loss of sleep (and resulting fatigue), and feelings of shame, guilt, embarrassment, and law self esteem.29 More severe effects can include Post-Traumatic Stress Disorder, which; left untreated, may cause an individual to react violently against either the bully or anyone else who happens to be in the vicinity.30 Physical effects include reduced immunity to infection, stress headaches, high blood pressure, and digestive problems.31
Workplace bullying also is very bad for business. Researcher Emily Bassman found that “(e)mployee abuse can have major bottom-line consequences” for employers.32 An employer may suffer direct costs, indirect costs, and opportunity costs as a result of abusive work environments. Direct costs include a significant increase in medical and workers’ compensation claims due to workrelated stress and the costs of lawsuits emerging from abusive work situations.33 Because these costs are reflected in a company’s financial statements, they are the easiest to measure.
Although more difficult to measure than direct costs, indirect costs also exist which carry significant negative consequences for an organization. A commitment to quality requires, among other things, “employee involvement, empowerment, trust, fixing the problem rather than fixing blame; dedication to delighting the customer;. . . and using mistakes as improvement opportunities.” 34 Abusive work environments achieve the opposite. They create “fear and mistrust, resentment, hostility, feelings of humiliation, withdrawal, play-it-safe strategies, and hiding mistakes.”35 High turnover, absenteeism, poor customer relationships, and acts of sabotage and revenge are among the other indirect costs.36
Opportunity costs are the final category identified by Bassman. Abusive work environments can result in a worker’s effort falling “between the maximum effort of which one is capable and the minimum effort one must give in order to avoid being fired.”37 Abused workers also may “disengage from their workplace,” committing themselves to outside activities and spending excessive time on the job talking about how poorly they are being treated.38 Moreover, when a work atmosphere is infected with anxiety and fear, the resulting stress can stifle creativity.39
The Pearson survey largely confirms Bassman’s findings. Targets often responded to workplace bullying in ways that reduced employee productivity and loyalty and increased employee attrition:
1. “28 percent lost work time avoiding the instigator;”
2. “53 percent lost work time worrying about the incident or future interactions” with the instigator;
3. “37 percent reduced their commitment to the organization;”
4. “22 percent decreased their effort at work;”
5. “10 percent decreased the amount of time they spent at work;”
6. “46 percent contemplated changing jobs to avoid the instigator;”
7. “12 percent actually changed jobs to avoid the instigator.”40
Research by Keashly additionally shows that an employer’s response to complaints about bullying can influence a Target’s behavior at work.41 Targets who perceived the organizational response as being inadequate often responded with “feelings of decreased commitment and loyalty to their organization and doing the minimum work to get by.”42 These individuals were likely to believe that the interests of individual employees did not matter to the employer.43
4. Pervasiveness of Workplace Bullying
Although academic research on workplace bullying is still in its infancy, the emerging literature demonstrates that workplace bullying is a significant problem and that abusive supervision is particularly common. Psychology professor Harvey Hornstein gathered information about the topic “from nearly a thousand working men and women over an eight-year period,” who represented a wide variety of occupations.44 Hornstein’s research reflected “both the unexpectedly high frequency with which brutal boss behavior occurs and its adverse effects on subordinates.”45 He estimates that ninety percent of the workforce suffers abuse from their bosses at some time in their careers.46
Most of the fifteen studies of work-related abuse examined by Keashly showed that very high percentages of respondents reported being targets of some type of emotional abuse in the workplace, generally ranging from around fifty percent to well over ninety percent.47 The following are some examples:
A 1991 study of nurses and nurse managers reported that over ninety-six percent of the respondents had been subjected to verbal abuse, most frequently by physicians.48 A twenty-five percent turnover rate and reduced patient care were among the major consequences.49
A 1995 study of university faculty and staff reported that over half of the respondents had been subjected to verbal abuse, and twenty-three percent had been mistreated.50 Superiors were the most frequent perpetrators.’51
A 1994 study of undergraduate students with work experience reported that all had experienced some type of emotional abuse in their jobs by either bosses or coworkers, and fourteen percent had been subjected to more than ten emotionally abusive events.52
Ultimately, workplace bullying is a pervasive and disturbing phenomenon with significant costs to both its targets and to the rest of our society. Moreover, economic and social conditions in the modern workplace are combining to create an environment very hospitable to bullying. Therefore, bullying will not disappear soon from the American workplace, but its costs may continue to increase.
B. THE MODERN AMERICAN WORKPLACE: PRIMED FOR BULLYING
There is a strong sense among Americans that civility has been last in the modern workplace. In a major public opinion survey conducted by The New York limes in 1995, respondents by a fifty-three to eight percent margin felt that the workplace is “more angry” than “compared to the way things used to be.”53 The study concluded that “(p)all respondents see the bonds of loyalty between employees and companies and the spirit of friendly cooperation among employees being eroded by anxiety and pressure to work harder for less.”54
An analysis of economic and social conditions supports The New York Times survey data and buttresses the assertion that the modern workplace is primed for abusive behavior toward workers. Five often-interrelated economic and social trends-the growth of the service-sector economy, the global profit squeeze, the decline of unionization, the diversification of the workforce, and increased reliance can contingent workers-are combining to create more “bully-friendly” working conditions and point strongly toward a continuation of, if not a likely increase in, bullying behavior. In order to understand how these economic and social conditions are creating a climate favorable toward bullying, each trend is individually considered below.
1. Growth of the Service Sector Economy
The growth of jobs in the service sector and the characteristics of these jobs have led to an increase in workplace bullying. Service sector work can be defined as work “in which face-to-face or voice-to-voice interaction is a fundamental element” of a job.55 Labor market statistics demonstrate that service work has constituted a steadily increasing share of the U.S. labor market. In 1850, service sector work represented under twenty percent of total employment.56 By 1950, the number of service sector jobs rose to roughly fifty percent.57 In 1990, service work provided over seventy percent of U.S. jobs.58
By contrast, the manufacturing sector reached its high point in terms of employment around 1950; when it constituted just under thirty-five percent of the workforce.59 The number of jobs in the manufacturing sector dropped to about twenty-five percent by 1990.60 The agricultural sector has continually and sharply declined since 1850, when it represented just under sixty-five percent of the workforce; by 1990 it represented only three percent of the labor market.61
Professors Cameron Lynne MacDonald and Carmen Sirianni observe that “(b)ecause personal interaction is a primary component of all service occupations, managers continually strive to find ways to oversee and control those interactions . . . . “62 In contrast to goods-producing work, service-sector labor “no longer entails the assembly of a product but the creation and maintenance of a relationship.”63 Because service sector work is so dependent on personal interaction, it becomes a form of “emotional labor” in which the psychological consequences of work, both positive and negative, are easily exacerbated, especially in comparison to the more mundane yet steady working conditions of a manufacturing plant.64
The very nature of service sector work creates conditions in which workplace bullying is more likely to occur. Frequent, ongoing personal interaction between workers often becomes a basic element of a job, especially in work arrangements between supervisors and subordinates. Lawyer-paralegal, doctor-nurse. store manager-stock clerk, bank president-secretary-these are but a few examples of typical service-sector work pairings in which personal contact is an integral aspect of the respective jobs. When people interact more, it is more likely that personalities will clash and that individuals who possess bullying tendencies will have opportunities to act upon them. This is especially true in view of the economic pressures facing companies, managers, and workers today, the details of which are discussed immediately below.
2. Global Profit Squeeze
The global marketplace has put increasing pressure an American managers and American workers to provide better and more services and goods at a lower cost.65 It appears that these stressful work environments both fuel natural bullies and create new ones. As Professor Harvey Hornstein told Fortune Magazine, “Nearly half the cases of abusive bosses that I’ve uncovered can be attributed to the Nineties work environment.”66 This environment. “has ignited explosions of brutality both from innate bullies who thrive on their mistreatment of others and from overburdened bosses who might never have behaved that way in less stressful times.”67
Driven by the profit squeeze and threatened by cheaper goods and lower labor costs from abroad, many companies have adopted a downsizing mentality and have carved away “layers of supervision and management.”68 The surviving managers and workers “are expected to produce more with fewer resources.”69 Baron and Neuman found that popular cost-cutting measures such as downsizing and layoffs, and organizational changes such as corporate restructuring, are “significantly related to expressions of hostility and obstructionism” in the workplace.70
Many of the layoff casualties have been middle managers who worked more closely with rank-and-file workers, leaving the remaining managers with more people to manage and under greater pressure to perform.71 In order to cope with their increased duties, managers have developed what Hornstein calls a “siege mentality,” whereby bosses “feel that they must stamp down subordinates to stay on top of things and alive.”72 Workplace bullying is one of the natural consequences of this dynamic.
3. Decline of Unionization
Union membership in the American workforce declined precipitously during the second half of the Twentieth Century, particularly in the private sector.’ In 1945, 35.5’0 of all nonagricultural employees were unionized.74 In 1995, only 16.710 of all nonagricultural employees were unionized.75 Figures for the private sector were even bleaker for unions, as only 10.4% of those workers were union members.76
The presence or absence of a union bears a strong relationship to conditions that promote or deter abusive treatment of workers. Although a union’s presence in no way guarantees a “bully-free” workplace,77 it can alter the balance of power and make bullying less likely in two primary ways. First, collective bargaining allows union members to negotiate with management on matters related to compensation, benefits, and working conditions.78 In terms of protecting union members’ job security, the typical collective bargaining agreement is designed to prevent arbitrary management actions and to provide baseline procedures and criteria for employment decisions.79 All of these protections can serve as checks on abusive behavior by managers and supervisors.
Second, the presence of a union provides a potentially useful “safety valve” for resolving disputes created by or exacerbated by abusive supervisors. A good union shop steward can play a helpful role by serving at times as an employee’s representative and on other occasions as an informal mediator. In addition, shop stewards and joint union-management committees can, be the conduits for communicating workers’ concerts to management about abusive supervision without invoking formal grievance procedures.80
These bilateral lines of communication are missing in the typical nonunionized workplace. A nonunion employee does not have a shop steward who can “run interference” on her behalf when dealing with a difficult supervisor or coworker. She is much less likely to have access to a worker-management committee concerned with working conditions, especially in light of the National Labor Relations Board’s finding that some management-initiated employee committees violate the National Labor Relations Act because they are “labor organizations” unlawfully dominated or supported by employers.81 She has no due process rights and very few substantive rights against arbitrary discharge: Thus, in most cases in which an at-will worker is subjected to abusive treatment in the workplace, she will have to handle it alone and-as we will see below-without much law to back her up.
In the 1950s, economist John Kenneth Galbraith recognized that unions exercised “countervailing power” that served to restrain the market strength of companies.82 Some four decades later, Galbraith affirmed the value of unions but conceded that, for many workers, especially those in the service sector, “organization [into unions] is not now a practical solution.”83 In short, the presence of countervailing union power that can help provide minimum standards for employee dignity is absent from most of today’s workplaces.
4. Diversification of the Workforce
The American workplace is becoming more diverse. According to one estimate, women, people of color, and/or immigrants will account for “[o]ver 85 percent of the net growth in the labor force between 1990 and 2000.”84 The diversification of the workforce may be heightening the potential for bullying to occur. Baron and Neuman report that “increased diversity” is one of several social factors that are “significantly related to all three forms of workplace aggression” as defined by their conceptual model-verbal aggression, obstructionism, and workplace violence.85 Citing previous research studies, they explain that people tend to be “attracted to others they perceive as being similar to themselves and repulsed by those who they view as being dissimilar.”86 When people with diverse characteristics are compelled to work together, “decreased levels of interpersonal attraction and increased potential for aggression” may be the result, especially if diversity is not properly managed.87
The relationship between the latest findings concerning diversity and workplace bullying may be understood more fully by examining Austin’s work explaining the interaction between modes of management authority and the hierarchical structure of the labor market.88 Although work rules, wage scales, and job categories are among the most prevalent forms of bureaucratic control exercised by employers,89 the greatest potential for supervisory abuse occurs because of the ability of supervisors to direct, monitor, discipline, and reward workers, known as “simple control.”90 Simple control; and the supervisory abuse that may come with it, is most easily exercised over “unskilled and semiskilled unorganized workers” who comprise the bottom tier of the labor force.91 “Blacks, Latinos, women, teenagers, and undocumented immigrant workers continue to be disproportionately represented” in this bottom tier.92
5. Increased Reliance on Contingent Workers
According to economist Paul Osterman, “perhaps for the first time since the Great Depression, there are widespread indications that internal labor market structures are changing.”93 One significant development has been the expansion of the so-called “contingent workers,” whereby traditional employment relationships have yielded more part-time work, temporary help agencies, in-house temporary labor pools, independent contractors, and other farms of flexible labor.94 A recent study by the Economic Policy Institute (EPI) reported that “(d)ata drawn from surveys of major companies suggest that the use of contingent labor is widespread and rising.”95 All types of contingent workers, noted the EPI researchers, “are frequently denied health insurance and pension coverage and have little access to promotions and better jobs.”96
The rise of the contingent workforce creates an atmosphere that nurtures workplace bullying. Contingent workers become commodities to be mixed, matched, moved, and discharged in strict adherence to an employer’s bottomline priorities: The chairman of Manpower, Inc., the largest single employer in the United States, remarked; “The U.S. is going from just-in-time manufacturing to just-in-time employment. The employer tells us, `I want [workers] delivered exactly when I want them, as many as I need, and when I don’t need them, I don’t want them here.'”97 Such arrangements discourage the creation of positive interpersonal bonds that can be forged in traditional long-term employment settings. Instead, workers are depersonalized and deemed disposable. In such a setting, they are more likely to be treated in an emotionally abusive manner.
Baron and Neuman accordingly have found a positive correlation between increased use of part-time workers and abusive work environments.98 In the words of Professor Neuman, “‘We talk about a learner, meaner workplace . . . But that creates an atmosphere where [bullying] is more likely to happen . . . If a person has no vested interest, and if you believe you won’t be with these people too long, you don’t care what they think.'”99
The foregoing discussion has demonstrated that workplace bullying is a common practice that can inflict a heavy emotional and physical toll on its targets and has a demonstrably negative effect on employee morale, loyalty, and productivity. Furthermore, economic and social conditions facing the modern American workplace point to a continuation, if not a likely increase, in this type of behavior, The legal system should recognize that workplace bullying benefits no one; and it should make reasonable efforts to address the problem of abusive work environments: Part II of this article accordingly identifies four policy goals toward combating workplace bullying and examines the existing potential legal protections against this behavior.
II. EXISTING POTENTIAL LEGAL THEORIES TO COMBAT WORKPLACE BULLYING
Ending emotionally abusive work environments is not as dramatic a goal as it may initially seem. After all, Congress already has found that workplaces should be free from discrimination100 and from working conditions that are likely to cause death or serious physical injury.101 Surely the documented effects of workplace bullying rank with status-based discrimination and occupational safety hazards as undesirable conditions for the office or factory. Workplace bullying can be defended only by relying on outdated notions of hierarchy and the dubious assumption that “cracking the whip” on employees is good for business.
With these points in mind, Part II of this article will do two things. First, it will identify some important policy objectives that should be incorporated into any legal response to workplace bullying. Second, it will examine the existing potential legal protections against workplace bullying and assess their usefulness toward combating this behavior.
A. POLICY OBJECTIVES TOWARD CRAFTING A LEGAL RESPONSE TO WORKPLACE BULLYING
Workplace bullying has been viewed primarily as a “management” or “human resources” problem, not a legal one, except for those circumstances where it has reached extreme levels or has constituted status-based discrimination. Despite the growth of individual employment rights since the early 1960s and the accompanying assumption that successful claims should lead to the recovery of compensatory damages (including those for emotional harm), American employment law doctrine has implicitly recognized that bad bosses and difficult coworkers go with the territory of being a worker. Accordingly, identifying the priorities that should inform the creation of a legal response to workplace bullying is not an easy task. Nevertheless, the following four policy goals offer a starting place for identifying the priorities that such a framework should reflect:
1. Prevention. The most important objective is the prevention of workplace bullying. The law should encourage employers to use preventive measures to reduce the likelihood of bullying. If bullying is prevented, then workers and employers alike benefit, and litigation is reduced. In short, everyone wins.
2. Self-help. When bullying does occur, the law should protect workers who engage in self-help measures to address the problem and encourage the resolution of bullying disputes within the workplace. The law also should provide incentives to employers who respond promptly, fairly, and effectively when informed about such behavior.
3. Relief, Compensation, and Restoration. If preventive and self-help measures do not end the bullying, the legal system should provide a means of relief to bullying targets. Furthermore, the target should be allowed to return to his or her position assured that the bully has been either reformed or removed from the scene.
4. Punishment. Bullies, and employers who place bullies in a position to abuse their coworkers; should be subject to punitive measures for their actions. Punishment will have a deterrent effect and promote the use of preventive measures to discourage future bullying activity.
With these four policy goals in mind, the following discusses the potential existing common-law and statutory remedies that may be invoked to respond to workplace bullying. They include the tort of intentional infliction of emotional distress (IIED),102 employment discrimination statutes,103 the National Labor Relations Act (NLRA),104 the Occupational Safety and Health Act (OSHA),105 and free-speech protections.106
B. IIED IN EMPLOYMENT SETTINGS
The favored common-law tort theory for seeking relief against emotionally abusive treatment at work has been intentional infliction of emotional distress (IIED). Plaintiffs typically have sought IIED liability on both their employers and the specific workers, often supervisors, who engaged in bullying conduct. It is important to closely examine cases involving allegations of IIED in the workplace. If this tort is an effective legal check on workplace bullying; then additional protections, such as the one proposed by this article, would be unnecessary. The discussion in this section will establish that, to the contrary, IIED has not proven to be an effective response to workplace bullying and to abusive supervision in particular.
The Restatement of Torts, heavily relied upon by many courts for guidance in considering IIED claims, defines lIED this way: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.107
Same courts have taken the Restatement definition of IIED and broken it down into separate elements:
1. The wrongdoer’s conduct must he intentional or reckless;
2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
3. There must be a causal connection between the wrongdoer’s conduct and the emotional distress; and
4. The emotional distress must be severe.108
The following discussion examines a number of cases in order to gain an understanding of modern IIED doctrine as applied to workplace disputes.109 In doing so, it will categorize workplace IIED cases based an common underlying factual scenarios-(1) cases involving “garden variety” workplace bullying; (2) cases involving status-based discrimination or harassment; (3) cases involving termination or discipline for poor job performance as a basis for the lIED claim; and (4) cases involving an employer’s in-house investigatory practices. In addition, the potentially preemptive effects of workers’ compensation statutes will be considered and analyzed.
1. “Garden Variety” Bullying and IIED
An analysis of case law reveals that typical workplace bullying, especially conduct unrelated to sexual harassment or other forms of status-based discrimination, seldom results in Liability for IIED. This is because the courts have tended to find workplace bullying cases lack two of the required elements for IIED liability-either that the complained-of conduct was not severe or outrageous, or that the employee did not suffer severe emotional distress.
a. Severe and outrageous conduct. The most frequent reason courts provide for rejecting workplace-related IIED claims is that the complained-of behavior was not sufficiently extreme and outrageous to meet the requirements of the tort.110 The Restatement gives courts plenty of support for such findings. Comment d to the Restatement’s IIED section states that “(l)iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”111 With such a high standard suggested in the Restatement, courts have held that many typical incidents of workplace bullying fall short that standard.
The following examples demonstrate the high bar courts have set for conduct to be considered outrageous. In Turnbull a Northside Hospital, Inc.”112 the Georgia Court of Appeals found that alleged conduct including “glaring at plaintiff with purported anger and contempt, crying, slamming doors, and snatching phone messages from plaintiffs hand was childish and rude,” but that “it is not the type of behavior for which the law grants a remedy.”113 The court found persuasive the absence of cursing, derogatory remarks about the plaintiff, and verbal and physical threats.114
In Dentonv. Chittenden Bank,115 the Vermont Supreme Court affirmed summary judgment for an employer and supervisor where the plaintiff alleged that the supervisor “embarked on an insulting, demeaning, and vindictive course of conduct toward [the plaintiff] that included ridicule, invasions of privacy, intentional interference with ability to car pool, competitiveness in after-work sports, and an unreasonable workload.”116 Liability should not be extended for “a series of indignities,” wrote the court, adding that “(a)bsent at least one incident of behavior” such as retaliation against the employee for whistle-blowing or an act of extreme humiliation, “incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct was outrageous.”117
In Mirzaie v. Smith Cogeneration, Inc.,118 the Oklahoma Court of Civil Appeals affirmed a trial court’s dismissal of an IIED claim where the plaintiff had alleged that his supervisor, among other things, yelled at him in front of other company executives, called him at 3:00 a.m. and “browbeat him for hours,” required him to “needlessly cancel vacation plans,” refused to allow the plaintiff to spend a day at the hospital with his wife after the birth of their son, intentionally called the plaintiffs wife by the former wife’s name; and delivered the notice of termination two hours before the plaintiffs wedding. 119 There was nothing “in this working milieu,” said the court, “that would elevate the recited facts to the ‘outrageous’ level.”120
In Crowley v.North American Telecommunications Ass’n,121 the District of Columbia Court of Appeals affirmed the dismissal of an lIED claim where the plaintiff alleged “only that he was subjected to contempt, scorn and other indignities by his supervisor and an unwarranted evaluation and discharge.” 122 “While offensive and unfair, such conduct is not in itself of the type actionable on this tort theory,” noted the court.” The pleaded facts were deemed insufficient to establish extreme and outrageous conduct by the defendant.124
Perhaps the most egregious example of IIED doctrine gone awry in workplace bullying situations can be found in Holloman v. Keadle,125 where the Arkansas Supreme Court held that the lIED doctrine requires that the defendant have prior knowledge of the plaintiffs sensitivity to emotional distress.126 Holloman, a female employee, worked for a male physician, Keadle, for two years before she voluntarily left the job.127 Holloman claimed that during this period of employment, “Keadle repeatedly cursed her and referred to her with offensive terms, such as ‘white nigger,’ ‘slut,’ ‘whore,’ and ‘the ignorance of Glenwood, Arkansas.'”128 Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside of the home were “whores and prostitutes.” 129 According to Holloman, Keadle “told her that he had connections with the mob” and mentioned “that he carried a gun,” allegedly to “intimidate her and to suggest that he would have her killed if she quit or caused trouble.”130 Holloman claimed that as a result of this conduct, she suffered from “stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.”131
On these pleaded facts, the Arkansas Supreme Court affirmed summary judgment for the defendant Keadle.132 The court skirted the question of whether Keadle’s conduct was outrageous on its face. 133 Instead, it held that Holloman’s failure to establish that Keadle “was made aware that she was `not a person of ordinary temperament’ or that she was ‘peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity,'” was fatal to her claim.134
The Arkansas Supreme Court twisted the IIED doctrine out of shape in Holloman. While the Restatement does recognize the significance of a defendant’s prior knowledge of a plaintiff’s unusual or peculiar sensitivities to emotional distress, it considers this to be a contributing factor toward determining whether behavior is outrageous, not a requirement for such a finding.135 Yet the Arkansas court apparently made prior knowledge an element of IIED. In doing so, it implicitly held that only employees of unusual susceptibility to emotional distress can meet the elements of IIED.136
Notably, when an employer’s actions smack of retaliation against the employee for reporting suspected illegalities or irregularities, a court may find that a more typical bullying situation constitutes extreme and outrageous conduct.137 For example, in Vasarhelyi v. New School for Social Research,138 a New York appeals court reinstated an IIED claim brought by Marina Vasarhelyi, a former controller and treasurer for the university who had questioned the university president’s handling of reimbursement matters for his personal and business expenses.139 Following her complaints and the leaking of a confidential memorandum by an unknown employee that fell into the hands of university trustees, the plaintiff was subjected to a course of conduct that included “ten hours of intense interrogation,” humiliating her “for her use of English,” questions about her personal relationships, and “impugning both her honesty and her chastity.”140 The court found that the pleaded facts stated a claim for IIED.141
b. Severe emotional distress. Plaintiffs also can lose lIED claims because they did not show the requisite level of severe emotional distress.142 Here, too, the Restatement sets a difficult standard, because it fails to contemplate a considerable expanse of gray area between levels of emotional distress. Comment j to the IIED section states: “Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people: The law intervenes only where the. distress inflicted is so severe that no reasonable man could be expected to endure it.”143 Read together, these sentences suggest that the Restatement drafters believed that unless the distress is so severe that it emotionally destroys its target, then it must be the kind of everyday “transient and trivial emotional distress” that does not call for a response by the legal system. Some very serious instances of emotional distress, therefore, are presumed to be “part of the price of living among people.”
Harris v. Jones,144 a 1977 Maryland Court of Appeals decision, is a compelling illustration of the difficulty of establishing severe emotional distress. Plaintiff Harris was an assembly-line worker who suffered from a lifelong stuttering problem that gave him “great difficulty with longer words or sentences, causing him at times to shake his head up and down when attempting to speak.”145 Even before the complained-of behavior began at work, he had been under long-term care for a nervous condition.146 He also was experiencing difficulties in his marriage and had an apparent drinking problem.147
During a five-month period, Harris’s supervisor, Jones, approached him over thirty times, verbally and physically mimicking his speech impediment.148 A few times a week during this time period, Jones would approach Harris and tell him, “in a ‘smart manner,’ not to get nervous.”149 As a result of this behavior, “Harris was ‘shaken up’ and felt `like going into a hole and hide [sic].'”150 Harris’s wife said that his nervous condition worsened during this time.151
When Harris tried to transfer departments, Jones refused to grant his request.152 When Harris sought the assistance of his union representative, Jones mimicked both Harris’s “shaking his head up and down” and his stuttering. 153 In response to grievances filed by Harris, on two occasions the employer, General Motors, instructed Jones to act properly.154
At trial, the jury found for Harris, but the court of special appeals reversed the judgment, holding that the plaintiff’s emotional distress lacked the requisite severity to allow recovery.155 The Maryland Court of Appeals then affirmed the court of special appeals’s reversal of the verdict.156 While Harris claimed that Jones’s conduct was cruel and insensitive, the court found that the humiliation suffered by Harris was not, “as a matter of law, so intense as to constitute the ‘severe’ emotional distress required to recover” for IIED.157 “The intensity and duration of Harris'[s] emotional distress is nowhere reflected in the evidence,” the court wrote, adding that Harris’s family problems “were not shown to be attributable to Jones'[s] actions” and it was not established “how, or to what degree, Harris'[s] speech impediment worsened” due to Jones’s conduct.158
One could argue that, in view of the court’s references to the quality of the plaintiffs evidence concerning severe emotional distress,159 Harris is simply a warning to plaintiffs” attorneys about the importance of putting on a complete case. But it is more reasonable to assert that this case illustrates just how severe a plaintiff’s distress must be in order for a claim to survive judicial scrutiny at both the trial and appellate levels. Harris testified that he “‘felt like going into a hole and hide [sic],'”160 and the appeals court quoted from comment j of the Restatement acknowledging that “in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed.” 161 The court still found that the evidence was insufficient, as a matter of law; to establish severe emotional distress. 162
In addition to IIED’s failure on its face as a weapon in the fight against workplace bullying, it also suffers from infirmities brought about by its relation with other doctrines of law. In particular, problems come about by the interrelation of IIED with sexual harassment law, at-will employment, and workers compensation. These problems are discussed further below.
2. Discrimination, Harassment; and IIED
The most successful types of workplace-related IIED claims are grounded in factual allegations of severe status-based harassment or discrimination.163 Some of these cases included behavior that virtually anyone would consider extreme and outrageous. To illustrate, in Soto v. El Paso Natural Gas Co.,164 the Texas Court of Appeals held that summary judgment for the defendant was improperly entered on both statutory harassment and IIED counts where plaintiff Emma Soto alleged that she was subjected to ongoing physical and verbal conduct of a sexual and highly personal nature.165 In addition to alleging the creation of a hostile work environment rife with crude and vulgar sexual remarks, Soto, a secretary, claimed that her supervisory coworker, Tom Trujillo, ridiculed her and touched her breast following her return to work from a second mastectomy for breast cancer and reconstructive surgery.166 In fact, “she heard Trujillo referring to her as `lopsided’ at a department meeting” for supervisors and administrators, who “smiled and laughed at this heartless comment.”167
Sato was diagnosed as having “severe depression and post-traumatic stress syndrome as a result of the hostile environment at her workplace.”168 Surely her symptoms were indicative of severe emotional distress, as they included “bouts of crying, intense feelings of helplessness and loss of control, fear of retaliation, and . . . difficulty concentrating and failing asleep.”169 On these pleaded facts, the Texas appeals court found that summary judgment was improper as to both the IIED and statutory harassment claims.
A more typical example is Kanzler v. Renner,170 in which the Wyoming Supreme Court held that summary judgment for the defendant was improper where the plaintiff’s IIED claim was grounded in allegations of “physical attack, persistent harassment and severe emotional injury.”171 Sharon Kanzler, a police dispatcher. developed a friendship with a police officer, David Renner, who then allegedly engaged in a course of conduct that included following her, grabbing her, attacking her in a utility closet, and rubbing his crotch against her leg.172 Kanzler sought therapy as a result and “was diagnosed as suffering from depression and post-traumatic stress disorder as a result of the incidents at work.”173 Despite the doctor’s diagnosis, the trial court granted summary judgment for Renner.174 In holding that summary judgment was improperly entered, the Wyoming Supreme Court stated that it is “in accord with numerous jurisdictions which have determined that inappropriate sexual conduct in the workplace can-, upon sufficient evidence, give rise to a claim of intentional infliction of emotional distress.”175 To do otherwise: reasoned the court; “would amount to an intolerable refusal” to recognize the severe effects of sexual harassment.176
The presence of discriminatory animus can “boost” the strength of an otherwise marginal IIED case. For example, in Taylor v. Metzger,177 the New Jersey Supreme Court held that the utterance of a single racial slur (in this instance, “jungle bunny”) could, under certain circumstances, constitute extreme and outrageous conduct.178 The court explained its position by engaging in an extensive discussion of the harmful effects of racially based harassment.179 Furthermore, noted the court, the plaintiff had been diagnosed as having post-traumatic stress disorder as a result of the incident.180
Despite the holdings in Soto, Kanzler, and Taylor, many IIED claims based upon factual allegations of status-based hostile work environments or discrimination are dismissed, even where courts simultaneously uphold the statutory claims based on the same facts.181 These IIED claims are dismissed because the defendant’s conduct was not deemed sufficiently extreme and outrageous, or because the plaintiff failed to demonstrate the requisite level of severe emotional distress. For example, in Hoy v. Angelone,182 the Pennsylvania Superior Court dismissed an lIED count following a jury verdict for the plaintiff. During the trial, the plaintiff testified that her supervisor “subjected her to various forms of abusive treatment, including sexual propositions, vile and filthy Ianguage, off-color jokes, physical groping, and the posting of sexually suggestive pictures,” compelling her to seek psychiatric help.183 The court stated that absent an extra factor, such as retaliation for refusing sexual advances, sexual harassment does not constitute outrageous conduct to support an IIED claim.184
In Jeremiah v. Yanke Machine Shop, Incc.,185 the Idaho Supreme Court upheld a hostile work environment claim based on national origin while dismissing an IIED claim. The plaintiff presented evidence that he was subjected to “extensive demeaning name calling, which included specific epithets regarding his national origin,” the placing of an “obscene green card” on his desk, receiving “an obscene employment evaluation,” and having his tires deflated and his truck scratched while he was at work.186 However; the court avoided directly addressing the issue of whether the behavior was extreme and outrageous. Instead, it found that because the evidence established that the plaintiff was merely “seriously frustrated” by what had happened to him; he did not meet the requirement of severe emotional distress.187
These unsuccessful IIED cases establish that the degree of severity of conduct and harm to the plaintiff required under hostile work environment and discrimination analyses is notably lower than that required under IIED. In effect, the courts have said that conduct that is actionable under an employment discrimination theory often does not rise to the level of IIED. At least those plaintiffs who can prove status-based harassment ar discrimination still have avenues of legal relief via employment discrimination statutes. However, for plaintiffs who are not members of a protected class, or for those who are members of a protected class but cannot establish a legally sufficient link between the complained-of behavior and their protected status, IIED may be the only possible cause of action. Unfortunately for them, the thresholds for establishing extreme or outrageous conduct and severe emotional distress are simply too high for lIED to serve as a useful weapon against workplace bullying.
3. Termination; Poor Job Performance, and IIED
Employees who have claimed IIED on the sale or primary ground that they suffered emotional distress because they were terminated have found their arguments resoundingly rejected by the courts.188 The common judicial response to such claims is that termination of an employee, even if it appears to be unjust, is not sufficiently extreme or outrageous to meet the requirements of IIED.189 This response is understandable. Terminating employees is an everyday fact of life in a market economy, especially one in which the rule of at-will employment is dominant. Losing a job can be even more traumatic than experiencing day-to-day bullying. If, however, all unwanted terminations were, ipso facto, actionable as IIED claims, employers would be handcuffed in making legitimate personnel decisions and the courts would be swamped. Rather than allowing IIED to be used as a back-door route around the at-will rule,190 it is more desirable to give employees some type of direct, legal protection against unjust dismissal.
Similarly, demotions and warning letters based upon poor job performances are likely to be outside the reach of IIED.191 Any type of demotion, formal warning, or other performance-based discipline may cause severe emotional distress, but such actions have long been within employers’ normal bounds of discretion. Although it may be appropriate to re-examine these boundaries, collective bargaining and other farms of worker action may be better forums for this than a narrow application of the IIED doctrine.
More disturbing, however, is the judicial response to legal challenges to methods of termination, especially the so-called “exit parade”–the name for the popular practice of terminating employees by escorting them out of the office or plant by company or security personnel, sometimes in view of their coworkers.192 IIED claims brought in response to such practices have had little success because courts have found the employer’s behavior was not extreme and outrageous.193 These holdings demonstrate one of the ironic difficulties in meeting the elements of IIED. If the complained-of behavior is commonplace, then it is not beyond the hounds of decency tolerated by society. The likely humiliation of being paraded out of the office under guard or noticeable supervision, especially under the watch of coworkers, is, in effect, a degradation ceremony. It is similar in nature, though admittedly not in degree, to archaic military disciplinary proceedings where transgressors are marched past other soldiers under armed guard to face their punishment. Yet in the case of the dismissed employee, her sole “transgression” may have been being on the payroll at a time when profits were not high enough.
4. In-House Investigations and IIED
Courts generally allow employers to conduct reasonable investigations of possible illegal activity without incurring lIED liability.194 For example, in Randall’s Food Markets v. Johnson,195 the Texas Supreme Court held that merely asking “a management-level employee to explain a report of wrongdoing” did not constitute outrageous conduct, for this was within the employer’s Legal right to investigate a credible allegation of employee dishonesty.196 However, this privilege may not apply where the employer subjects the employee to threatening or coercive interrogation. To illustrate, in Tandy Corp. v. Bone,197 the Arkansas Supreme Court found that a jury should hear an IIED claim where, during the course of an investigation into internal theft, a company’s security personnel subjected an employee to curses and threats and refused to allow him to take Valium that had been prescribed by a doctor.m18 The court suggested that liability may incur if the employer was aware of the employee’s medical condition.199
5. Workers’ Compensation
Workers’ compensation is a no-fault system that provides limited benefits to workers who suffer accidents in the course of and arising out of their employment.200 A typical claimant receives “usually around one-half to two-thirds of [her] average weekly wage” and medical expenses.201 An employer “is required to secure its liability through private insurance, state-fund insurance in some states, or ‘self-insurance.'”202 It is particularly important to consider whether workers’ compensation laws can serve as an adequate check on workplace bullying, as jurisdictions are split on whether workers’ compensation is the exclusive remedy for intentional, work-induced emotional distress injuries.203
The state of the law in Massachusetts illustrates the relationship between IIED and workers’ compensation. In its 1996 decision in Green v. Wyman– Gordon Co.,204 the Massachusetts Supreme Judicial Court held that an employee’s IIED claim against her employer was “barred by the exclusivity provision of the workers’ compensation act.”205 The case involved a plaintiff who claimed she had been sexually harassed during a three-year period that ultimately concluded in her termination of employment.206 She brought a variety of statutory and common-law claims against hey employer, including an IIED count.207
The exclusivity provision of the Massachusetts workers’ compensation law states, in pertinent part, that an “employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover damages for personal injuries . . . .”208 Furthermore, the statute covers intentionally inflicted emotional harm.209 Therefore, reasoned the court, Green’s injuries would be covered by workers’ compensation regardless of whether the employer was directly ar vicariously liable for her harm.210
Two years after Green, in Brovurr v. Nutter; McClennen & Fish211 the Massachusetts Appeals Court considered whether the exclusivity clause of the workers’ compensation statute applied to IIED claims against coemployees.212 The court held that, although a secretary’s IIED claim against her law firm employer was barred by the workers’ compensation act pursuant to Green and other previous decisions, she nevertheless could maintain an IIED claim against theindividual attorney, McLaughlin, who had subjected her to the offending behavior.213 Coemployees, noted the court, “are not immunized from suit by the workers’ compensation act for tortious acts which they commit outside the scope of their employment, which are unrelated to the interest of the employer.”214 Consequently, the trial court erred by dismissing the plaintiff’s IIED claim before she could demonstrate “that McLaughlin was acting neither within the course of his employment nor in furtherance of his employer’s interest.”215
The state of the law in Massachusetts demonstrates that workers’ compensation can serve to limit the legal options available to bullied employees. As the preceding discussion explains, the statute precludes an IIED claim against the employer, and it permits such a claim against a coworker only if the individual was acting neither within the course of his employment nor in furtherance of his employer’s interest. Although an employee can receive double workers’ compensation payments for an employer’s “serious and willful misconduct,”216 she must first demonstrate that she has been partially or fully incapacitated because of the offending actions.217
Workers’ compensation is, in essence, a no-fault insurance system whose costs are passed on to consumers.218 As such, it does a poor job of fulfilling the aforementioned policy objectives for addressing workplace bullying. Targets of bullying may receive compensation, but only if they can establish full or partial incapacitation. Although employers can contest claims for workers’ compensation benefits, they usually need not fear the kind of liability, legal costs, and adverse publicity that; say; a discrimination lawsuit can bring. Thus, workers’ compensation offers employers less incentive to engage in preventive measures. Furthermore, the no-fault nature of workers’ compensation and the absence of punitive damages render fairly meaningless the policy goal of punishment.
6: The Limits of IIED in Addressing Workplace Bullying
At first glance, IIED potentially meets all four of the policy goals discussed at the beginning of this section-namely, prevention, self-help, compensation, and punishment. The potential liability facing employers encourages them to engage in preventive measures, particularly in addressing abusive supervision. Standard tort remedies can impose compensatory and punitive damages, thereby fulfilling the goals of compensation and punishment. The existence of this legal protection potentially encourages a targeted employee to engage in self-help measures.
However, IIED is ultimately a limited legal protection for targets of workplace bullying. The most successful plaintiffs in workplace IIED cases are those whose claims may also give rise to recovery under laws that prohibit status– based harassment and discrimination. By contrast, those who have been subjected to more ordinary “equal-opportunity” abusive work environments have no other legal options. Rather, they must pursue their claims under a legal theory that obviously was not designed with them in mind.
Of course, much of the problem rests with the Restatement. It is telling that of the numerous hypothetical illustrations provided in the Restatement’s section on lIED, not one involves anything resembling an abusive work environment.219 In expressing their reluctance to allow IIED entry into the workplace, courts often invoke the Restatement’s pronouncement that “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” do not constitute outrageous conduct.220 “The rough edges of society are still in need of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language; and to occasional acts that are definitely inconsiderate and unkind,” wrote the Oklahoma Court of Civil Appeals, quoting from the Restatement, in denying an employee’s IIED claim in Mirzaie v Smith Cogeneration, Inc.221
According to the Restatement, “[t]here is no occasion for the law to intervene in every case where someone’s feelings are hurt: There trust still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”222 Particularly where bullying involves an abusive supervisor, the failure of the law to recognize the gross imbalance of power between workers and managers in typical nonunion employment settings means the high threshold of the Restatement favors managers. Under the dominant interpretation of lIED and employment law generally, only employers and their supervisors retain the right to hurt someone’s feelings, to express an unflattering opinion, and to unburden their tempers by blowing off steam an their subordinates. Of course, if average rank-and-file workers were to direct salvos of “rough language” and “inconsiderate and unkind” acts toward their supervisors, they could be fired immediately, and courts would routinely uphold their dismissal under the rule of at-will employment. By failing to adequately protect employees from abusive employer conduct, the law has created. in effect, a boxing match in which workers take the punches but may not fight back.
C. TITLE VII HOSTILE WORK ENVIRONMENT DOCTRINE223
Title VII of the Civil Rights Act of 1964(224) prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.”225 The development of hostile work environment doctrine is relevant to the analysis of workplace bullying far two reasons. First, Title VII itself may provide same legal remedies to workers who have been bullied on the basis of their protected status, and it is important to determine whether that potential to protect workers from bullying has been realized. Second, as this article will detail in Part iII below, Title VII sexual harassment doctrine226 provides an extremely useful framework for articulating a broader, status-blind; hostile work environment standard that responds more effectively to the problem of workplace bullying.
1. The Evolution of Hostile Work Environment Doctrine and the Problem of “Disaggregation”227
In Mentor v. Vinson,228 the Supreme Court held that a hostile work environment is one in which the workplace is permeated with “discriminatory intimidation, ridicule, and insult” so severe or pervasive “that it alter[s] the conditions of the victim’s employment and create[s] an abusive working environment.”229 The Court affirmed this standard in Harris v. Forklift Systems, Inc.,230 promulgating a two-part test to determine whether a hostile work environment is present under Title VII.231 First, the complained-of conduct must create “an environment that a reasonable person would find hostile or abusive.”232 Second, the victim must “subjectively perceive the environment to be abusive” in order to satisfy the requirement that the conduct “actually altered the conditions of the victim’s employment.”233
In assessing whether a hostile work environment exists, the facts must be examined in their totality.234 The frequency and severity of the discriminatory conduct, whether the conduct was “physically threatening or humiliating; or a mere offensive utterance,” and whether the conduct “unreasonably interfere[d] with an employee’s work performance” are among the factors to be weighed.235 In formulating this approach, the Court’s intention was to create “a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.”236 The Court observed that
Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance; discourage employees from remaining on the job, or keep them from advancing in their careers.237
The supreme Court further defined the contours of hostile work environment doctrine in Oncale v. Sundowner Offshore Services, Inc.238 Oncale involved an oil rig worker who “was forcibly subjected to sex-related, humiliating actions against him” by his supervisor and coworkers.239 The Court held that the plaintiff could maintain a Title VII claim based on same-sex harassment.240 In doing so, the Court reiterated its holding in Harris that “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.'”241 There is a difference between a coach smacking a professional football player on the buttocks and a coach doing the same to his secretary; reasoned the Court, adding that “(t)he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”242
Although the Court has recognized that discrimination due to the creation of a hostile work environment can be on grounds of “race, gender, religion, or national origin,”243 the development of the hostile work environment doctrine, and most of the public attention given to it, has been driven largely by questions of sexual harassment. In an important article published in 1998, Professor Vicki Schultz analyzed the evolution of sexual harassment law under Title VII and concluded that “the most prominent feature of hostile work environment jurisprudence” is the “disaggregation of sexual advances and other conduct that the courts consider ‘sexual’ in nature from other gender-based mistreatment that judges consider nonsexual.”244 As a result, “only overtly sexual conduct counts toward establishing hostile work environment harassment and . . . nonsexual conduct must be considered-if at all-as a separate form of disparate treatment.”245 This nonsexual conduct, Schultz adds, may be “too remotely related to a tangible job benefit to constitute disparate treatment.”246 Two decisions discussed by Schultz247 illustrate the impact of disaggregation-Walker v. Sullair Corp.248 and Turley v. Union Carbide Corp.249
First, in Walker, a district court held for the employer in a hostile work environment claim in which the plaintiff offered “na proof of an unwelcome touching or fondling” and “no evidence of a workplace `pervaded with sexual slur, insult -and innuendo.'”250 Instead, the alleged conduct “included close monitoring of the plaintiff, monitoring of personal phone calls, public reprimands for poor job performance and various other nonsexual harassment” by a superior with whom she once had a consensual sexual relationship.251 A hostile work environment, reasoned the court, exists only “where there are sexual advances, fondling or a sexually suggestive workplace atmosphere that the claimant finds unwelcome.”252 This would include sexual slurs, insults, and innuendo, verbal sexual harassment, and “‘extremely vulgar and offensive sexually related epithets.'”253
Second, in Turley, a district court granted the employer’s summary judgment motion on the plaintiff’s sexual harassment count where the plaintiff alleged that she was being harassed “in a nonsexual manner.”254 The plaintiff claimed that her foreman was “‘picking on me all the time’ ” and that he “treated her differently than the male employees.”255 However, because the plaintiff “was not subjected to harassment of a sexual nature,” the court found that she had not pleaded facts sufficient to state a claim for sexual harassment.256 At best, the court said, the plaintiff had made out a case for disparate treatment.257
In sum, disaggregation severely limits the use of hostile work environment doctrine to combat workplace bullying. “Unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature”258 certainly constitute forms of bullying; however, so Can nonsexual, yet possibly discriminatory types of conduct, such as the behavior alleged by the plaintiff in Walker.259 Indeed; denying women “the training, information, and support they need to succeed on the job” and engaging in “threatening and alienating acts” that undermine women’s confidence, sense of belonging, and job proficiency not only constitute sexual harassment,260 but also sound a lot like workplace bullying: Only sexual behavior, however, will be considered under hostile work environment analysis.
The most troubling scenario occurs when bullying includes both sexual and nonsexual behavior. When courts consider sexual conduct under hostile work environment analysis and nonsexual (yet discriminatory) conduct under a separate disparate treatment analysis, the alleged misconduct will never be considered in its totality. Bullying, as the discussion in Part I makes clear, is best understood only when viewed in its totality. The unfortunate individual who is the target of both sexual and nonsexual bullying will not emotionally compartmentalize what has happened to her into separate harms; disaggregation, however, will force that artificial distinction on her and, in the process; diminish the seriousness of what happened to her in the eyes of the law.
2. Employer Liability
The evolution of the prima facie hostile work environment claim informs our understanding of the extent to which the Title VII offers protections against workplace bullying grounded in sexually harassing conduct. In addition, one must examine how Title VII treats employer liability to fully understand how employers try to prevent and respond to abusive work situations. In two companion cases decided in 1998, Burlington Industries, Inc. v. Ellerth261 and Faragher v. Boca Raton,262 the Supreme Court clarified the standard for holding an employer liable when a supervisor creates an actionable hostile work environment for an employee in violation of Title VII.
In both cases, the Court held that an “employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”263 The Court then promulgated a two-element affirmative defense available to employers in instances where no tangible employment action264 was taken: First, the employer must establish that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”265 Second, the employer must establish that the “plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”266
The Court looked in large part to common-law agency principles in developing this analytical framework. Although traditional master-servant principles impose liability upon the master for the tortious acts of servants “‘committed while acting in the scope of employment,'”267 the “general rule is that sexual harassment by a supervisor is not conduct within the scope of employment.”268 However, even where conduct is outside the scope of employment, employer liability may be imposed where the employee “‘was aided in accomplishing the tort by the existence of the agency relation.'”269 Known as the “aided in the agency relation standard,” this provision supports the finding that any “tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.”270
The Court recognized that the application of the aided in the agency relation standard is less clear when the hostile work environment “does not culminate in a tangible employment action.”271 It noted, however, that considerations of public policy underlying Title VII also should come into play. These include the importance of encouraging employers to design “antiharassment policies and effective grievance mechanisms,” as well as placing limits on employer liability to “encourage employees to report harassing conduct before it becomes severe or pervasive.”272 Imposing vicarious liability, even in the absence of a tangible employment action, and the above-stated affirmative defense hold promise of advancing the court’s policy goals.
The Ellerth and Faragher decisions have had a dramatic impact can company policies and procedures regarding both actionable harassment and the advice that lawyers provide to their clients. an the heels of these decisions, many companies quickly moved to develop stronger anti-harassment policies and more effective procedures for handling employee complaints of harassment.273 Lawyers, executives, and human resources personnel all are becoming more involved in designing and implementing these policies and procedures.274
Hostile work environment doctrine could achieve all four policy goals of prevention, self help, compensation, and punishment for combating workplace bullying, at least when the misconduct is based upon the target’s protected status. The Ellerth and Faragher decisions provide ample economic incentive for employers to engage in preventive measures and to respond effectively to complaints about status-based harassment. Internal self-help is also encouraged, as federal court decisions have recognized that internal reporting of discriminatory treatment is protected under Title VII’s antiretaliation provision.275 Successful plaintiffs are provided with compensatory damages,276 and particularly egregious transgressors can be subject to punitive damages, thereby satisfying the goals of compensation and punishment.277 Throughout the process, parties may engage in negotiations to settle claims.
Of course, as a legal means to coW bat workplace bullying, hostile work environment doctrine is limited by the fact that Title VII covers only certain protected groups. In addition, it is the judicial adoption of disaggregation that most diminishes Title VII’s ability to respond to workplace bullying. When only conduct of a sexual nature is considered under hostile work environment analysis, other types of nonsexual behavior that collectively may constitute workplace bullying will be legally marginalized.
D. AMERICANS WITH DISABILITIES ACT (ADA)
The ADA prohibits, in pertinent part, employment discrimination “against a qualified individual with a disability because of the disability.”278 Potentially, the ADA can serve as a response to workplace bullying where the offending behavior creates or exacerbates a recognized disability. Research conducted by Professor Susan Stefan279 has revealed that ADA claims by employees involving psychiatric disabilities tend to fit into one of four common profiles:
1. Employees who had worked satisfactorily for an extended period of time until the appointment of a new supervisor and whose claims clearly arose from escalating interpersonal difficulties with their new supervisor.
2. Employees whose psychiatric disabilities arose from other work environment issues, including women who were sexually harassed; individuals subjected to hostile work environments as it result of disability; gender, race, or sexual preference; whistleblowers; and people whose disabilities were related to other claims of employer abuse or unfair treatment.
3. Employees whose disabilities were related to increasing stress, increased hours on the job, or the demands of new positions or new responsibilities.
4. Employees disciplined for misconduct, usually sexual harassment, who claimed that their behavior resulted from a mental disability, or that being disciplined showed that their employer perceived them as being mentally disabled.280
Stefan’s findings are valuable for two reasons. First, they validate the behavioral research ors workplace bullying by demonstrating that abusive work environments can lead to mental disabilities in its targets. Second, they demonstrate that the ADA is a potential legal weapon against workplace bullying.281
However, as Stefan further explains, many employees “are losing their ADA cases because abuse and stress are seen as simply intrinsic to employment, as invisible and inseparable from conditions of employment as sexual harassment was twenty years ago.”282 Furthermore, even if the ADA is interpreted to make it more responsive to employees with psychiatric disabilities created by abusive work environments, a bullied employee typically will not invoke it until she suffers from a recognized disability. Therefore, the ADA enters the fray at too late a stage in the escalation of an abusive work environment to prevent the harms of workplace bullying. This is in sharp contrast to Title VII hostile work environment doctrine, which acknowledges that harassing conduct that “does not seriously affect employees’ psychological well-being : . , can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.”283
Accordingly, the nature of the ADA limits its use as a weapon combating workplace bullying, especially when measured against the four policy goals of prevention, self-help, compensation, and punishment, Because liability does not even potentially begin to incur unless an employee is deemed “disabled,” the ADA does not serve as an effective legal prod encouraging employees to develop policies and training programs to prevent abusive situations and to respond fairly and promptly when they are alleged to have occurred: In addition, targets of workplace bullying must reach an acute psychiatric stage in order to invoke the statute; when they do, they must be willing to claim that they suffer from a mental disability. thereby running the risk of social and professional stigmatization: Employees who reach this stage may not be in a very good position to exercise self-help measures. Obviously, the goals of compensation and punishment are seriously frustrated when the statute offers potential relief only to the most severely bullied targets.
The degree to which the Supreme Court’s holding in Sutton v. United Air Lines, Inc.284 on what is “disabled” within the meaning of the statute will limit the application of the ADA to workplace bullying is unknown. The ADA defines “disability” as:
(A a physical ar mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.285
In Sutton, both plaintiffs were denied employment as commercial pilots with United Airlines because they failed to meet the carrier’s minimum vision requirement of an “uncorrected visual acuity of 20/100 or better.”286 In considering whether the plaintiffs had a physical impairment that substantially limited a major life activity, the Court said that measures taken to mitigate a condition “must be taken into account.”287 The fact that the plaintiffs could undertake mitigating measures in the form of corrective lenses that adjusted their visual acuity to 20/20 caused the Court to conclude that they had “not stated a claim that they are substantially limited in any major life activity.”288
If the use of a corrective measure precludes an individual from claiming that he has a disability within the meaning of the ADA, then the application of the statute to abusive work situations that create or exacerbate psychological disorders may be severely limited. Many such conditions are treatable with medication, such as the use of prescription drugs to treat schizophrenia. The majority in Sutton responded to this type of argument by pointing out that “one whose high blood pressure is ‘cured’ by medication may be regarded as disabled by a covering entity,”289 thereby possibly falling within the statutory definition. The Court urged that the central inquiry is “whether the limitations an individual with an impairment actually faces are in fact substantially limiting.”290
The ADA has built-in limitations as a weapon in the fight against abusive work environments. In addition, the consideration of what is a disability in Sitton casts further questions on the viability of the use of the ADA for this purpose_ In short, while the ADA offers some promise as a legal response to abusive work environments, it should not be the first line of legal defense against workplace bullying.291
E. NATIONAL LABOR RELATIONS ACT (NLRA)
The NLRA creates rights and responsibilities that can serve as a check on workplace bullying in two ways.292 First, the NLRA grants employees the “right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing.”293 If the presence of a union has the effect of discouraging workplace bullying;294 then this statutory right to form and join unions is an important means toward that end. In fact, in unionized sites that have experienced problems with workplace bullying, a union could recommend some type of antibullying provision for the collective bargaining agreement, conceivably mirroring the new cause of action proposed in Part III. Second, the NLRA grants employees the right to engage in concerted activity for “mutual aid or protection,” regardless of whether they are union members.295 This provision potentially protects workers who collectively address workplace bullying, especially abusive supervision.
In its current form, however, the NLRA is a limited ally in the battle against workplace bullying. Some of the main impediments are discussed below.
1. Jurisdictional Limitations
The NLRA’s jurisdictional requirements place severe limits on the types of workers who are statutorily protected to organize and join unions and engage in concerted activity. Expressly excluded from the NLRA’s protections are supervisors, independent contractors, domestic and agricultural workers, and family member employees.296 In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.297 One study has concluded that approximately fifty million workers, representing forty-three percent of the workforce, are exempted from exercising rights granted in the NLRA.298
The exclusion of supervisors and managers from statutory coverage is particularly disturbing in this context, for such individuals are certainly not immune from workplace bullying. Nevertheless, for example, a group of assistant managers who have been treated abusively by their supervisor would not be protected by the NLRA’s concerted activity provision in the event that they banded together to confront such behavior. Similarly, independent contractors are not covered by the statute, even though as members of the so-called contingent workforce, they may be especially vulnerable to abusive treatment.
The Supreme Court’s decision in NLRB v. Health Care & Retirement Corp. of America299 offers a particularly helpful illustration of how the jurisdictional limitations of the NLRA preclude collective action by those who are in an occupation in which bullying is common. The Court found that nurses who supervised nurse’s assistants were “supervisors” under the NLRA and, therefore, could not claim protection for collective bargaining ar other concerted activities.300 In view of studies suggesting that verbally abusive behavior by physicians toward nurses is commonplace,301 it is unlikely that many nurses feel like autonomous “bosses” simply because they may supervise the work of those who are a rung lower on the organizational chart. Yet many nurses may be excluded from the NLRA’s protections by that mere fact.
2. Concerted Activity
The concerted activity provision of the NLRA offers potential protection of employees who undertake collective measures to oppose workplace bullying. Section 7 of the NLRA provides that employees have the right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”302 Employers may not “interfere with; restrain, or coerce employees” who are exercising this right.303 This provision applies to all workers who meet the statutory definition of “employee,” not just those who are union members.304 Potentially, groups of employees, regardless of whether or not they are union members, could collectively address problems of work abuse and approach their employer with their concerns and ideas. Such activity would be protected under Section 7 because it would be “concerted” for the purpose of “mutual aid or protection.”305
Particularly for nonunion employees, however, the concerted activity provision of section 7 is limited as a legal weapon against specific occurrences of workplace bullying. Recall from the discussion of LIED cases that many, if not most, instances of work abuse involve an individual bully and an individual target, often in a supervisor-subordinate relationship. In such a situation, the target’s nonlitigious choices include doing nothing, confronting the bully, reporting the objectionable behavior to the bully’s superior, or in some way consulting and enlisting the assistance of her coworkers. Of these choices, only the last one is even potentially protected under the prevailing interpretation of section 7, for the other choices involve an individual, acting alone, solely on her own behalf.306 3. Time for a Reality Check?
Some scholars who are supportive of workers have lamented the de facto substitution of individual employment rights for collective bargaining rights over the past three decades. They argue with good justification that judicially enforced individual rights lack the political and economic clout of collective action in advancing the overall lot of workers.307 Nevertheless, a reality check is in order: Even in the supposed heyday of the American labor movement, no more than 35.5% of the nonagrieulatural American workforce was unionized.308 Although the new leadership of the AFL-CIO has made union organizing a top priority,309 business and labor analysts alike acknowledge the difficulties in reviving union membership rolls.310 Therefore, even though the National Labor Relations Act and the existence of a collective bargaining relationship can combine to create a workplace culture and legal protections that advance the policy goals of prevention, self-help, compensation, and punishment with regard to workplace bullying, in truth; only a fraction of the workforce stands to benefit.
Furthermore, the right of every worker to be treated with a minimal degree of dignity is sa basic that it should not be dependent upon collective action for its existence and enforcement. Compensation, benefits, work rules, and job security have been traditional topics of negotiation between employees and employers. The right to be treated with basic dignity, however, falls into a category that could be labeled “minimal floor rights,” joining the right to be free from status-based discrimination, the right to sale working conditions, and the right to a minimum wage.
F. OCCUPATIONAL OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)
The federal Occupational Safety and Health Act of 1970 was enacted “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”311 Congress had determined that “personal injuries and illnesses arising out of work” placed substantial burdens upon the American economic system “in terms of lost production, wage loss, medical expenses, and disability compensation payments.”312 The main concern of OSHA was the prevention of physical injuries, especially those occurring in the industrial sector, and “OSHA’s original emphasis on manufacturing and construction sites” remains the primary focus of the federal agency charged with its enforcement, the Occupational Safety and Health Administration.313
OSHA’s general duty clause states, “Each employer. . shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its) employees.”314 The most extreme effects of workplace bullying-high blood pressure, heart attacks; and the like-potentially may meet the standard of “serious physical harm” within the meaning of the statute. However; even the most cursory examination of the statute and its underlying regulations leads one to conclude that the entire regulatory framework has been designed to respond to physical hazards in the workplace; particularly those in the industrial sector;315
Even if certain types of workplace bullying fall within the regulatory reach of OSHA, this statute does not satisfy the policy goals of prevention, self help, compensation, and punishment. Adding workplace bullying to the enforcement agenda of a regulatory agency that already is severely understaffed would guarantee enforcement difficulties, especially because it is patently unrealistic to believe that OSHA inspectors would be able to conduct adequate investigations of workplace bullying.316 In addition, because OHSA does not provide far a private right of action,317 bullied employees would depend solely on the governwent to invoke the statute’s protections. Finally, the limited employer sanctions provided by OSHA would provide little economic incentive for employers to take preventive action. For example, a “willful” violation of OSHA can result in a fine of no more than $70,000 and as little as $5,000.318
G. SPEECH PROTECTIONS
In many instances, the best way to deal with a workplace bully is to stand up to him.319 The typical bully often is a coward underneath, so if the target of his wrath directly confronts him, he may stop the offending behavior. Legal protections for targets who choose to confront their tormentors would, at the very least, satisfy the policy goal of self-help and could help to shape a workplace culture that discourages bullying. The problem is that the employer-bully can fire the employee-target who confronts him. Unfortunately, even if we assume that confronting the bully would be construed legally as a form of speech, the law offers few protections to targets who engage in this brand of self-help.
Public employee speech is protected by the First Amendment only when it addresses matters of public concern.320 Typical responses to most forms of everyday bullying would fall short of that standard. Private employee speech enjoys no federal or state constitutional protection at all; private employers are not “state actors” and therefore are not subject to the protections of constitutional free-speech provisions.321 Only one state, Connecticut. provides general statutory protection for employee speech,322 but the proper breadth of that protection is an unsettled issue among the state’s courts.323 Finally, unless the bullying behavior is related to status-based discrimination, one who complains of such behavior could not claim the protections of antiretaliation or whistleblower provisions that are standard provisions of many employment discrimination laws.324
III. A PROPOSED LEGAL RESPONSE TO WORKPLACE BULLYING: STATUS-BLIND HOSTILE WORK ENVIRONMENT PROTECTION
A. THE NEED FOR STATUS-BLIND PROTECTION AGAINST WORKPLACE BULLYING[W]hat bothers people about abusive workplace conduct, after all, is not the fact that it may be discriminatory but that it is abusive in the first place . . [I]f a work environment is sufficiently abusive, it should not save an employer from liability that the abuse is dispensed without regard to race, sex or national origin.325
Many will argue that there is something particularly hurtful about being harassed simply because of one’s race, sex, or national origin, but there also is considerable logic in using a proscription against harassment regardless of the target’s status as a starting place in providing a right to be treated with minimal dignity at work. As Part I of this article explained, the Literature on workplace bullying shows that it can inflict severe emotional injuries on its targets, quite similar to those suffered by victims of actionable sexual harassment. Employers also suffer from workplace bullying, as it can have terrible effects on employee morale, loyalty, and productivity. Unfortunately, work abuse is common, and economic and social conditions point toward a likely increase in such behavior.
If workplace bullying is so bad, so commonplace, and so likely to increase, public policy should respond to it. However, Part II of this article has demonstrated that the existing legal responses to workplace bullying are inadequate. The requirements of IIED set too high a threshold for even serious instances of work abuse. Title VII hostile work environment doctrine, by its very nature, is limited to status-based harassment, and, in the case of sexual harassment, the practice of many courts to disregard nonsexual harassing behavior means many bullying situations will not be examined in their entirety. The ADA requires that a bullied employee show that she was disabled. The NLRA jurisdictionally excludes millions from its protections and offers little protection to the individual bullied employee. The OSHA, among all the potentially applicable protective statutes for workers, is the weakest candidate to combat workplace bullying. Finally; few employees enjoy the kind of comprehensive speech rights in the workplace that would protect their direct responses to abusive coworkers.
B. INTENTIONAL INFLICTION OF A HOSTILE WORK ENVIRONMENT
The best legal response to workplace bullying that advances the four policy goals of prevention, self-help, compensation, and punishment is the statutory adoption of a new theory that I will call “Intentional Infliction of a Hostile Work Environment.” The new cause of action could be defined this way:
In order to prove intentional infliction of a hostile work environment, the plaintiff must establish by a preponderance of the evidence that the defendant employer, its agent, or both, intentionally subjected the plaintiff to a hostile work environment. A hostile work environment is one that is deemed hostile by both the plaintiff and by a reasonable person in the plaintiff’s situation. Employers are to be held vicariously liable for hostile work environments intentionally created by their agents.
Crafting a fair and legally enforceable standard for determining whether the “reasonable person in the plaintiff’s situation” would consider a working environment to be a hostile one is no easy task. One is tempted simply to borrow Justice Stewart’s famous quip on how he defined pornography-“I know it when I see it.”326 Of course, more is necessary to give parties fair notice of the requirements of the law. For guidance, it is useful to revisit researchers’ findings on workplace bullying, examine the Supreme Court’s dicta on what constitutes a hostile work environment under Title VII; and consider certain elements of IIED doctrine.
As Part I of this article explained, workplace bullying is best understood when considering an offender’s behavior in its entirety. Bullying “encompasses all types of mistreatment at work,”327 including a variety of “hostile verbal and nonverbal, nonphysical behaviors” that undermine the target’s self-confidence and work performance.”zs Superiors are more likely to be the offenders,329 though coworkers can also play that role, especially in group “mobbing” situations.330
However, from the standpoint of public policy, it would be undesirable for every mild instance of workplace bullying to be legally actionable. Hence, a reasonableness standard should be imposed. Reference to hostile work environment doctrine under Title VII and to lIED doctrine is helpful: Examining the Supreme Court’s statement in Harris v. Forklift Systems, Inc. on what constitutes a hostile work environment under Title VII and removing the reference to discrimination, we find what sounds remarkably like a description of certain types of severe workplace bullying: “When the workplace is permeated with . . . intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” then relief is appropriate.331
In further considering the reasonableness standard, one can easily identify some of the behaviors that would point toward liability, such as abusive language, yelling and screaming, insults and put-downs, continuous, unreasonable work demands, and unfair accusations. In addition, several other factors should be considered, none of which should be considered dispositive:
1. Did the behavior continue ar recur over a period of time? A single insult, or a sudden but temporary increased workload, for example. should not be grounds for recovery. If certain types of offending behavior endure, liability may be appropriate.
2. Is there evidence of actions, both overt and concert, to sabotage the target’s work or reputation, or to frustrate the target’s ability to perform her work in a competent manner” An affirmative answer points strongly toward a finding that the target’s conditions of employment were fundamentally and illegally altered under this cause of action.
3. Were there power imbalances between the aggressor and the target, for example a situation involving a superior as eau aggressor and a subordinate as a target? Bullying situations are especially disturbing when the aggressor has some direct control over the target’s working conditions and job security.
4. Did the aggressor have prior knowledge of a target’s emotional vulnerability and needlessly attempt to exploit that vulnerability? Consistent with the rationale behind IIED doctrine, this factor recognizes that mean-spirited, superfluous behavior designed to inflict emotional distress on another is especially objectionable.
5. In addition, the proposed cause of action extends an employer’s vicarious liability to the offending behavior of all employees, not just supervisors. Recall that the Supreme Court imposed vicarious liability on employers for the sexually harassing conduct of their supervisors by relying on the “aided in the agency relation standard.” The offending employee was “‘aided in accomplishing the [harassment] by the existence of the agency relation.'”332 It follows that the standard can be applied to any employee, not just supervisors. Because workplace bullying can be perpetrated by coworkers, or even subordinates who, in turn, are “agents” of the employer, it makes sense to extend vicarious liability to include the actions of all employees. In short, the proposed theory takes the doctrine of hostile work environment under Title VII, removes the need to establish status– based discriminatory treatment, and adds in elements of the IIED doctrine.
The rationale behind Title VII hostile work environment doctrine offers compelling reasons to extend these protections to all workers, regardless of gender, race, or any other characteristic. As the Supreme Court has recognized in examining hostile work environment doctrine under Title VII, this standard strikes a balance “between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.”333 By contrast, the dual elements of extreme and outrageous conduct and severe emotional distress under IIED require that the target be emotionally destroyed in order to survive even a summary judgment motion. It is noteworthy, as the discussion above points out, that in many cases where both statutory harassment and IIED claims are brought in response to the same conduct, the harassment counts survive while the IIED counts are dismissed. This confirms that hostile work environment is an easier standard to meet than LIED. From the standpoint of public policy, this may be desirable, for, as the Supreme Court has suggested in a Title VII context, statutory protection should “come into play before the harassing conduct lead[s] to a nervous breakdown.”334
C: AN EMPLOYER’S AFFIRMATIVE DEFENSE: PREVENTIVE AND CORRECTIVE MEASURES
The prima facie cause of action outlined immediately above makes employers strictly liable for the abusive behavior of their employees. This alone provides employers with a strong incentive to prevent workplace bullying. However, the law also should reward proactive attempts to prevent bullying and to effectively address allegations that bullying has occurred. Accordingly, under this proposed legal framework, when an employer is sued for the acts of an agent that allegedly created a hostile work environment, it shall be an affirmative defense for the employer only if
(a) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,
(b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.335
The defense is not available when the employee’s “harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”336 A constructive discharge-a “voluntary termination of employment by an employee” because working conditions were such that “an objective, reasonable person would find [them] so intolerable that voluntary termination is the only reasonable alternative”337-should be considered a “discharge” for purposes of this standard.
This defense, drawn almost verbatim from the Supreme Court’s opinions in Ellerth and Faragher, advances the policy goals outlined above for the prima facie cause of action. First, it gives employers considerable economic incentive to engage in preventive activities; such as instituting proactive policies that discourage workplace bullying, selecting emotionally balanced and fair-minded employees,338 and developing effective employee review procedures, especially for supervisors. In addition, employers would have strong reason to develop effective and fair-minded procedures for handling complaints of workplace bullying and applying corrective measures where necessary. This, in turn, would help to create an atmosphere where employees are encouraged to make good-faith reports of workplace bullying, advancing the policy goal of employee self-help.
This defense also recognizes that employers should be able to avoid liability when they have made reasonable efforts to prevent and correct abusive behavior and the target suffers no tangible job action. Lf employers establish effective policies, and both they and their workers follow them, then most bullying problems can be resolved “in house,” without costly, time-consuming, and disruptive litigation that carries the added likelihood of inflicting more emotional distress on the complainant. In sum, the prima facie cause of action and this affirmative defense will combine to reward strong preventive measures, effective responses, and internal resolution of bullying complaints. This combination also promotes a certain humanistic bottom line: It will serve as a powerful economic incentive for employers to rid themselves of abusive employees, particularly those in supervisory positions, who cannot treat their coworkers with a minimal degree cif dignity.
Finally, the defense does not release the actual perpetrator from liability. An individual supervisor or coworker could still be sued, regardless of the employer’s responses and whether the actionable behavior resulted in a tangible employment action.339 As such, the policy goals of compensation and punishment would be advanced even when the employer is properly excused from liability.
D. OTHER DEFENSES
Some of the court decisions on workplace IIED claims are instructive for identifying what defenses should be available to defendants under the proposed theory. First, it should be an affirmative defense that the complained-of behavior is based solely upon an otherwise legal termination, demotion, disciplinary action, or job evaluation.340 After all, the suggested cause of action is not designed to serve as a “backdoor” wrongful discharge law or to limit an employer’s ability to make everyday personnel decisions. Second, it should he an affirmative defense that the complained-of behavior involved a reasonable investigation about potentially illegal activity.341 This, too, falls within the realm of an employer’s normal and necessary prerogatives.
E. DESIGNING THE STATUTORY STRUCTURE
The proposed statute could be enacted at either the federal or state level. A federal statute obviously would provide the most comprehensive and uniform protection. In addition, its passage and implementation could help to raise consciousness about the detrimental effects of workplace bullying.
In terms of relief for successful plaintiffs, federal employment discrimination statutes provide useful guidance. In general, these statutes allow for back pay, front pay, reinstatement, punitive damages, and injunctive relief.342 The proposed statute should incorporate these standards in order to achieve the policy goals of compensation and punishment; as well as to provide an economic incentive for employers to implement effective preventive measures and to respond fairly and promptly to employees’ complaints.
3. Private Cause of Action
It is common for other protective employment statutes to be enforced and adjudicated by an administrative agency, such as the U.S. Department of Labor or the Equal Employment Opportunity Commission. One could argue that this type of arrangement would be desirable for the proposed statute, as a single agency could develop expertise interpreting the statute and promulgating regulations. Under such structures, complainants usually have the option of being represented by either private counsel or the applicable enforcement agency: For the complainant of modest or little means, the latter option provides access to legal representation.
However, in order to ward off frivolous claims, it may be preferable to procedurally limit this proposed cause of action to a private lawsuit. The Equal Employment Opportunity Commission and its state equivalents are generally obligated to consider every claim. Potential complainants who are not represented by private counsel can have their cases investigated and, where appropriate, prosecuted by commission attorneys. This concededly invites weak claims by individuals who have little economic disincentive if they are unsuccessful. Because the proposed cause of action does not require that a plaintiff be a member of a certain protected class, the population of potential litigants includes virtually anyone who is an employee. By limiting the proposed cause of action to a private lawsuit, the plaintiffs’ bar would serve a valuable gatekeeping function. A plaintiffs’ attorney presumably would be reluctant to bring a weak ease, especially if she or he is representing the client on a contingency fee basis.
F. OTHER CONSIDERATIONS
1. The Relationship of the Proposed Protection to Status-Based Harassment Laws
Although the proposed protection draws heavily from Title VII hostile work environment doctrine, it is meant to stand on its own.343 However, the enactment of a status-blind hostile work environment law could specially benefit those who are targets of status-based harassment as well. Recall that the discussion of Title VII hostile work environment doctrine above explained the way in which federal courts disaggregate factual allegations of sexual conduct from those of nonsexual conduct.344 Sexual conduct is considered under hostile work environment analysis, but nonsexual conduct is considered under disparate treatment theory. Where an employee is the target of both sexual and nonsexual conduct, the effect of disaggregation is to dilute the gravity of the offending behavior, thereby ensuring that it will never be considered in its totality. The theory proposed here would have the opposite result. A plaintiff would be able to include all of the bullying behavior in constructing a prima facie case. Consequently, a trier of fact would be able to assess the allegedly offending conduct in its entirety.
In addition; a statute along the lines proposed here could invite a reconceptualization of harassment based upon protected-class membership. A new paradigm could emerge that starts with a status-blind proscription on harassment, but then enhances damages where it is shown that the offending conduct was motivated by the plaintiff’s membership in a protected class. Under this approach, the creation of a hostile work environment on the basis of sex or race could be seen as a form of “hate bullying,” similar to the way in which some “hate crime” statutes provide for enhanced sentences for defendants whose violent criminal acts were motivated by their victims’ protected status.345
The relationship between tort law and sexual harassment law is thoughtfully explored by Professor Mark McLaughlin Hager, who argues that when it comes to responding to sexual harassment, we need more tort law in the workplace, not less.346 Hager’s central point is that “harassment should be met with tort suits against the actual perpetrators, not discrimination suits against employers.” 347 Hager indicates that although torts such as assault, battery, and invasion of privacy may be applicable to workplace settings, IIED “is the cause of action most broadly pertinent” to his analysis.348 Although a full response to Hager’s analysis of the paradigmatic difficulties of equating harassment with discrimination under Title VII349 is beyond the scope of this article, several of his assertions are particularly relevant to the discussion here.350
Hager criticizes Title VII hostile work environment doctrine on the ground that it “requires a morally and legally untenable distinction between discriminatory and nondiscriminatory harassment,” claiming that it “is doubtful that sexual harassment is per se more wrongful and harmful to any particular victims than any other kind of harassment.”351 However, discrimination against women, people of color, and other groups constitutes a historic, ongoing problem of concern among American society, and harassment is a subset of that broad category of conduct. To say that the distinction between discriminatory and nondiscriminatory harassment is morally untenable is to take a fair point-that harassment of any kind is wrong-too far.
Hager’s assertion on the depth and breadth of harm inflicted by any kind of harassment is consistent with resc;archers’ findings an the harmful effects of workplace bullying. In addition, Hager is correct to observe that, on an interpersonal level, the search for discriminatory motivation as opposed to other types of malice may be elusive.352 “Sexual overtures aside,” notes Hager, “a worker may harass another because he dislikes her or because he is simply nasty.”353 Hager’s point seemingly offers support for the statutory proposal here.
2. The Relationship of the Proposed Protection to the Rule of At-Will Employment
One important note of clarification concerns the relationship between the proposed tort and the rule of at-will employment.354 In providing a framework for analyzing hostile work environment cases under federal employment discrimination law, Supreme Count decisions interpreting hostile work environment doctrine involved the interpretation of a statute, Title VI, that itself provides protections against adverse employment actions: Title VII, therefore, creates a statutory exception to the rule of at-will employment based upon a plaintiff’s protected status.
The cause of action proposed in this article does not presume any such protected status for plaintiffs. If adopted, it would start with a presumption that unless otherwise provided for by contract or statute, the employment relationship affected by the theory would be of an at-will nature. Therefore, the only type of dismissal that would be actionable under the theory is one in which the adverse empLoyment action is intex-related with the overall infliction of a hostile work environment; usually as the culminating act, or where the hostile work environment leads to constructive discharge. Dismissals unrelated to the hostile work environment would not be actionable under this theory.
G. POTENTIAL POLICY CRITICISMS OF THE PROPOSED THEORY
1. Disturbing Market Mechanisms
To the extent that this theory creates an exception to the rule of at-will employment, it could be attacked as an unnecessary disruption of market mechanisms. Perhaps the most ardent scholarly defender of at-will employment is Professor Richard Epstein.35 Epstein believes that the at-will rule should be respected in two ways: First, an employer and employee “should be permitted as of right to adopt this form of contract if they so desire.”356 Second, an at-will relationship should be presumed “as a rule of construction in response to the perennial question of gaps in contract language.”357
In terms that are pertinent to the present analysis, Epstein defends at-will employment on the ground that “the worker can quit whenever the net value of the employment contract turns negative.”358 Bad employers will suffer reputational losses, and good employees who experience arbitrary or pcx)r treatment, or witness the same inflicted on their coworkers, will look elsewhere.359 In short, the market will serve as a corrective force that pressures employers to treat their workers fairly.
In the case of workplace bullying, however, it is not clear that the. market is serving this corrective function. As summarized earlier, the data suggests that workplace bullying occurs frequently, particularly in certain lines of work. A good employee who is subjected to poor treatment may decide to move on, but there is no guarantee that the next job will offer better working conditions. In fact, if it holds true that the contemporary American workplace is more primed for bullying than ever before, it is even more unlikely that workers will find themselves working for companies that value “bully-free” workplaces.
In addition; implicit in Epstein’s outlook is an assumption that changing jobs is as easy as switching brands of a product. However, a typical individual who leaves a job to escape an unpleasant work environment faces the prospect of lost earnings; lost insurance coverage, a job search of possibly unknown duration, and the psychological stress that accompanies almost anyone’s change of employment status.’6 Epstein fails to acknowledge that even a rational economic choice can carry heavy emotional and personal burdens.
2. More Litigation
It is inevitable that the adoption of this new cause of action would lead to a significant initial surge in employment litigation. In the abstract, unnecessary or excessive litigation is undesirable. If, an the other hand, legislatures or judges create rights because public policy deems them important and the marketplace cannot adequately address the underlying ills, then the courts or administrative agencies exist in part to vindicate those rights. It follows that if the threat of liability is the best way to discourage certain behavior, general concerns about an overly litigious society should not be allowed to defeat the creation of new rights. Furthermore, as employers begin to institute preventive measures, the courts will clarify the meaning of the doctrine by exercising their power to dismiss nonmeritorious cases. This initial surge of litigation eventually will level off, and employers will be able to seek guidance for their internal policies and practices from the developing case law. Finally, the affirmative defense for cases not culminating in a tangible employment action provides employers with a powerful economic incentive to engage in preventive measures that reduce the likelihood of litigation.
3. More “Errors” for Plaintiffs
Another concern raised by Epstein is that the further erosion of at-will employment will lead to more erroneous verdicts for employees, thanks to overly sympathetic triers of fact.361 This is certainly possible with bullying, especially in cases alleging abusive supervision, Jurors might overlook the requirements of the law simply because they find the plaintiffs boss to be unlikeable. However, under the proposed statute plaintiffs will not have an easy time proving their claims. Where a defendant’s behavior is clearly loud, abusive, ongoing, and visible for alL to see, triers of fact will have little difficulty finding that a hostile work environment existed. However, as Keashly points out, the subtle or hidden nature of certain abusive behaviors “not only makes them difficult to describe specifically but also undermines the target’s own abilities to discern exactly what has been going on. It could be argued that the behaviors became unidentifiable and, likely not punishable.”362 As one of the respondents to Keashly’s study remarked, “unless you live it, you don’t understand it, you just don’t understand it.”363
4. “Torfiying” the Workplace
To the extent that the proposed protection can be seen as a statutory codification of what is, in essence, a tort theory,364 then it could he criticized for advancing what Professor Dennis Duffy calls the “tortification” of labor and employment law.365 In a 1994 article, Duffy takes aim at this “tortification,” which he notes has been led by an influx of workplace IIED cases.366 However, whereas Duffy has offered some useful criticisms of workplace IIED claims, the proposed cause of action effectively addresses them.
In addition, this article differs with Duffy on several of his claims about the role of individual employment rights in the modern workplace. First, Duffy opines that because a decision in in an intentional infliction of emotional distress case is so dependent “upon the court’s own response to what it considers to be particularly egregious facts,” an employer will have “rio incentive to alter its personnel practices and procedures or to reconsider its management decisions” due to a lack of clear guidance as to what behavior is actionable.367 This point is partially correct as applied to IIED claims. It is true that the threat of an IIED claim gives employers scant incentive to alter their policies, but not because of the subjectivity of judicial decisionmaking. Rather, the real reason that employers have little to fear in terms of IIED liability is that so few are successful. A smart employer need only respond to the most egregious behavior, especially behavior related to some type of statutory discrimination or harassment. Furthermore, in jurisdictions where courts have held that workers’ compensation statutes preempt employee IIED claims, egregious behavior that otherwise would have invited a lawsuit can now be treated simply as a business cost.
In any event, Duffy’s criticism of IIED is largely met by the way in which the proposed theory of intentional infliction of a hostile work environment incorporates standards of employer liability as developed by the Supreme Court in Faragher368 and Ellerth.369 The developing case law should begin to mirror that of statutory hostile work environment claims for sexual harassment, thereby providing considerably more guidance for developing preventive employment policies. The significant investment in time and energy that some employers put into training to prevent and create awareness of sexual harassment could be replicated far workplace bullying.
Second, Duffy argues that workplace IIED claims are, in essence, nothing more than “white collar protection for nonminority male employees.”370 If we accept, for the moment, the truth of his assertion, we could easily respond that white male managers are entitled to be as free from workplace abuse as anyone else. In addition, these individuals are less likely to be able to successfully invoke existing discrimination laws and are precluded from claiming the protections of the NLRA. In any event, however, his assertion is not supported by the case law. As summarized above, successful IIED claims frequently arise out of situations involving status-based discrimination and harassment.
Third, Duffy argues that nonunion, rank-and-file workers lack bargaining power and, therefore, are unattractive prospective clients to plaintiffs’ lawyers for bringing IIED claims, even on a contingency fee basis 371 He is correct about the lack of bargaining power for nonunion workers; but the leap to the conclusion that plaintiffs’ lawyers will avoid representing them is difficult to comprehend. If a lawyer turns down an IIED case, it is probably because she has determined it is unlikely to succeed on the merits under the tough standards set by the courts. The proposed hostile work environment theory; in any event, will be easier to prove.
Fourth, Duffy argues that “the effects of individual litigation” are unlikely to “‘trickle down’ to employees within the firm,” adding that “[i]ndividual litigation does nothing to change the balance of power in the workplace.”372 While this article concurs with Duffy (and Professor Austin, for that matter)373 that collective worker action is the best hope for correcting the gross imbalance of power in today’s workplace; the history of sexual harassment litigation offers plenty of evidence that individual employment cases can have a significant effect on employers’ policies. In addition, the nascent history of the ADA demonstrates that the enactment of protective legislation can help empower a previously marginalized group. Similarly; while the proposed hostile work environment theory will not correct workplace power imbalances by its mere existence, it may empower workers to stand up for their own dignity.
Finally, although Duffy may be correct in suggesting that the “collective vision of the Wagner Act . . , represents a better alternative for the majority of workers than the illusory promise of ephemeral tort theories,” he should recognize that millions of workers, constituting up to a third of the workforce, are exempt from protection under the statute by virtue of their employment status.374 In fact, the overall state of unionism under the NLRA is such that individual employment rights must, at the very least, provide a baseline of legal protections for workers. With unionized workers comprising only fifteen percent of the American workforce,375 it is sadly unrealistic to look to collective bargaining as the primary source of even the most minimal rights far most workers at present or in the near future.
Typical contemporary attitudes toward workplace bullying are better understood by looking at the historical evolution of attitudes toward, and policies in response to, sexual harassment. Twenty-five years ago, the term “sexual harassment” was not commonly used. While sexually harassing behavior had long been a staple of many workplaces, in its typical form it was seen as an annoyance that was best handled through a mix of reluctant toleration and, where appropriate, a slap an the face. But the nation that someone had a right to be free of sexual harassment was not widely accepted.
Similarly, workplace bullying has long been viewed as an unfortunate part of being employed. Jerks at work, it can be said, often tend to be kept on the job. The current state of the law reflects this assumption: Unless an employee can show that she has been either emotionally destroyed by severe and outrageous conduct or subjected to status-based harassment or discrimination, she has little legal recourse in combating workplace bullying.
This should change. We now have an already ample and still growing body of research demonstrating the very harmful effects of workplace bullying on targets and employers alike. The existing potential legal protections are clearly inadequate, and probable conditions in the workplace of the next century provide little hope that market mechanisms will play a corrective role, A statute providing status-blind protection against a hostile work environment would not completely solve the problem, but it certainly would be a useful step in the right direction.
1. See Stephanie Armour, Running of the Bullies, LISA TGt)AY, Sept. 9. 1998. at 1B (“Shaken up and stressed out, workplaces are increasingly susceptible to bullying and browbeating behavior.”); Kirstin Downey Grimsley, Slings and Arrows on the Job. Wash. PosT, July 12, 1998, at HI (describing how rudeness and bullying are thriving in a “leaner, meaner workplace”); Diane E. Lewis, Beating with Bullies, BOSTON GLOBE, Jan. 24. 1999, at L7.4 (“In an era of job insecurity, wage stagnation, and layoffs, bullying has become a serious workplace problem . . . .”1; Katherine Sopranos, Who’s Afraid of the Box Bud Boss?, CMt. TRm.. June 21, 1998, at CI (“Bosses who treat their employees like punching bags rather than assets are not uncommon in the workplace.”). See generally GARY NAMIE & RUTH NAMIE, BULLYPROFF YOURSELF AT WORK! (1999) (explaining the dynamics of workplace bullying and proposing personal strategies to cope with bullying behaviors); NOA DAVENPORT, ET AL. THE MOBBING SYNDROME: EMOTIONAL ABUSE IN THE AMERICAN WORKPLACE (1999) (exploring emotionally abusive work situations and offering advice to victims). For commentary more specifically addressing abusive supervision, see generally HARVEY A. HORNSTEIN, BRUTAL BOSSES AND THEIR PREY (1996); and STANLEY BING, CRAZY BOSSES (1992).
2. See HORNSTEIN. supra note 1, at 40-44 (describing how notions of organizational hierarchy have supported abusive treatment of subordinates as a “divine right”‘ ); see also BING, supra note l, at 100-01 (“Management by terror is a time-honored technique, because it works.. . . American management is replete with admiration of classic bullies who, as long as they flourish, are left to operate pretty
much as they will.”). For humorous profiles of Classic bullies over the years, see id. at 10126.
3. Professor Regina Austin summarizes this mentality: “In sum, there is little reason for workers to take undue umbrage at the treatment they receive at work. The pain, insults, and indignities they suffer at the hands of employers and supervisors should be met with acquiescence and endurance. That’s life.” Regina Austin. Employer Abuse, Warner Resistance, and the Tort ref Intentional Infliction of Emotional Distress, 41 STAN. L: Rev. 1,2 (1988).
4. See infra notes 7-52 and accompanying text.
5. See Austin, supra note 3; Dennis P. Duffy,Intentional Inflictionof Ernational Distress and Employment at Will: The Case Against the “Tortification” of Labor and Employment Law, 74 B.U.L. Rev. 387 ( 1994).
6. See, e.g., supra note l (most of the cited sources on workplace bullying were published after the Austin and Duffy articles).
7. See, e.g., BING, supra note l; DAVENPORT E’r AL:, supra note F: HoRNSTEIN, supra note 1; HORNSTEIN, supra note I; WILLIAM LUNDIN & KATHLEEN LUNDIN, WHEN SMART PEOPLE WORK FOR DUMB BOSSES (1998); N,A,MIE Rt NAMIE, Supra note F; LESLEY WRIGHT & MARTI SMYE, CORPORATE ABUSE (1996); JUDITH WYATT &t CHAUNCEY HARE, WORK ABUSE: HOW TO.RECO
8. See. e.g., Robert A. Baron & Joel H. Neuman, Workplace Aggression-The Iceberg Beneath the Tip of Workplace Violence: Evidence on Its Forms, Frequent,; and Targets, 21 PUB. ADMIN. Q. 446 (1998); Loraleigh Keashly, Emotional Abuse itt the Workplace: Conceptual and Empirical Issues, ! J. EMOTION.kL ABUSE 85 (1998); Joel H. Neuman do Robert A. Baron, Workplace Violence and Work-place Aggression: Evidence Concerning SpeCific Farms, Potential Causes, and Preferred Targets, 24 J.
MG,MT. 391 (1998); Christine h4. Pearson, Incivility and Aggression at Work: Executive Summary (July 1998) (unpublished manuscript, an file with author). Hornstein”s book, while targeted at a popular audience, also summarizes his own scholarly research on the topic of abusive supervision. See HoRNSTEIN, supra note 1, at x-xvii. For summaries of earlier research, see EMILY S. BASSMAN, ABUSE tN THE WORKPLACE: MANAGEMENT REMEDIES AND BOTTOM LINE IMPACT 3-4 (1992). In addition, DrS. Gary and Ruth Namie, who are heading an effort to build public awareness of workplace bullying, have written their own analyses of workplace bullying and summarized many others. These materials can be obtained an their website, Bullybusters (visited Nov. 7, 1999) , as well as from their bank, BULLYFROFF YOURSELF AT WORK!… See NAMIE & NAMIE, supra note 1.
9. SEe, P.g., DUNCAN CHAPPEL & VICTTORIO DIMARTINO, VIOLENCE AT WORK 6-9 (1998); DAVENPORT ET AL., supra note i, at 2-5 (summarizing research conducted outside the United States) (1998); Andy Ellis, Workplace Bullying (last modified Mar. 6, 1999) (research report by Andy Ellis of Ruskin College, Oxford, downloaded by author on June 24, 1998).
10. NANnE & NAMIE, supra note l; at 17. A report published by the International Labor Organization defines bullying as “offensive behavior through vindictive, centel, malicious ar humiliating attempts to undermine an individual or groups of employees, These persistently negative attacks an their personal and professional performance are typically unpredictable, irrational and unfair.” CHAPPELL & DIMARTINO, supra note 9, at 11.
11. NAMIE & NAMIE, supra note 1, at 17.
12. See id. at 18.
13. Keashly, supra note 8, at 87.
14. Id. at 109:
15. DAVENPORT ET AL., supra note 1, at 1-9: The late Dr. Heinz Leymann; a Swedish physician, researcher, and pioneer on the topic of abusive work environments, popularized the term “workplace mobbing” and defined it as a form of “psychological terror”-that involves ” `hostile and unethical communication directed in a systematic way by one or a few individuals mainly towards one individual.’ ” Id. at 4:
16. Id. at 10.
17. Pearson, supra note 8. The survey was national in scope, covering “all types of industries ranging in size from two to 100,000 employees.’` Id.
18. See id.
19. Td. at 97-98.
20. NAm & NA,MI. supra note L, at 49.
21. Neuman & Baron, supra note 8, at 396:
22. Id. Note that many of the behaviors described by Keashly are listed under “Expressions of Hostility” by Neuman and Baron. Compaq id., with Keashly, supra note $, at 85.
23.’ Neuman & Baron, supra note 8, at 396.
24. See icd.
25. NAMIE & NAMIE, supra note I; at 51.
26. Id: at 52-54.
27. Id. of 54.
28. Id. at 55.
29. fd. at 69. In particular, abusive supervision is “clearly linked to adverse psychological states.” HORNSTEIN, supra note 1. at 74. Hornstein’s research showed statistically significant correlations between “a boss’s abusive disrespect” and depression, anxiety, and low self-esteem. Id, at 74-75. Work-related stress alone has been linked to many physical and psychological problems. See NATIONAL IN ST. POR OCCUPATIONAL SAFETY AND HEALTH, STRESS … . AT WORK (1999)(hereinafter STRESS AT WORK). Cardiovascular disease, musculoskeletal disorders, psychological disorders, and workplace injuries are among the potential effects. Id.
30. See NAMIE & NAMIE, supra note l, at 69-70. Joseph Kinney, founding director of the nonprofit National Safe Workplace Institute, also finds that workplace violence can be a consequence of abusive work environments, noting that “there have been numerous instances where abusive supervisors have baited angry and frustrated employees, pushing these individuals to unacceptable levels of violence and aggression.” JOSEPH A. KINNEY, VIOLENCE AT WORK 132 (1995).
31. See NAMIE & NAMIE, supra note t , at 70.
32. BASSMAN, supra note A, at 137.
33. See id. at 138-41.
34. Id. at 141.
36. See id: at 142-44.
37, Id: at 145 (citing FT. Bean, Talk at Human Resource Institute Issue Management Conference (Feb. &10. 1989)).
38. Id. at 148-49.
39. See id: at 149:
40. Pearson. supra note 8:
41. See Loraleigh Keashly; Interpersonal and Systemic Aspects of Emotional Abuse at Work: The Target’s Perspective; VIOLENCE AND VICTIMS (Forthcoming 20(10).
43. See id.
44. HORNS.supra note 1, at x.
45. Id. His research covered “most major industries, including manufacturing, communications, insurance, entertainment, law; agriculture; computers; education, publishing, advertising, government, petrochemicals, and finance:” Id.
46. See id. at xiii.
47, See Keashly, supra note 8, at 90-94 “summary of studies on workplace emotional abuse”):
48. ;See id: at 90.
49. See id.
50. See id. at 93.
51. See id.
52. See id.
53. THE NEw YORK TIMEs, THE DOWNSIZING or AMERICA 55 ( 1996) (reporting results of a December 1995 public opinion survey concerning economic insecurity and the job market).
55. Cameron Lynn MacDonald & Carmen Sirianni, The Service Society arid the Changing Experience of Work, in WORKING IN THIE SERVICE SOCIETY 1. 3 Cameron Lynne MacDonald & Carmen Sirianni eds., 1996).
56. See id. at 2.
57. See id.
58, See id. The fastest growing sectors of the economy are those in which the work is considered to be the most stressful, according to Linda Rosenstock, Director of the National Institute for Occupational Safety and Health. See Stress: Anierican Workers Face Future of Long Hours, Faster Pace, Increasing Isolation, O.S:H: DAILY (BNA), at D-4 May 27, 1999). These include computer and data-processing, health services and health care, and the personnel and supply services industry, see id., all of which happen to be iri the service sector.
59. See MacDonald & Sirianni, supra note 54, at 2.
60. See id.
61. See id.
62. Id. at 4.
63. Id. at 4, 5.
64. For general commentary on the nature of “emotional labor,” see Amy S. Wharton, Senrice with a Smile: Understanding the Consequences of Emotional Labor, in WORKING Itv THE SERVICE SOCIETY 91-111 (Cameron Lynne MacDonald & Carmen Sirianni eds.. 1996)
65. The pressures created by the modern economy, especially the globalization of labor markets, have been explored extensively in recent years. See, e.g., RoBERT II. FRANK & PHILIP J. COOK. THE WINNER-TAKE-ALL SOCIETY (1995): ROBERT 14L)TiNER, EVERYTHING FOR SALE; THE VIRTUES AND LIMITS OF MARKETS 1997); ROBERT $. REICH, THE WORK OF NATIONS (1991); See also HORNSTEIN, supra note 1, at 23-44 (discussing the relationship of the 199i7s work environment to abusive supervision).
66. Marshall Loeb & Ed Brown, The Bad Boss Gets a New Life. Here’s One Consequence of Downsizing You May Have Overlooked: The Need to Trim Has Given Beastly Bosses New Kinds of Power, FORTUNE, May 27, 1996, at 192.
67. HoRNSTEIN, supra note l, at 143.
68. Id, at 26.
70. Neuman & Baron, supra note 8, at 404.
71: See HORNSTEIN; supra note 1; at 26-28.
72. Id. at 29.
73. See MICHAEL. C. HARPER & SAMUEL ESTREICHER, LABOR LAW 108-11 (4th ed. 1996).
74. See id. at 10$ tbl.1
75. See id. at 111 tbl.3:
76. See id.
77: See, e.g., Eddy v. Brown; 715 P2d 74 (Okla. 1986) (facts alleging that union shop steward was target of workplace bullying).
78. The National labor Relations Act imposes a duty upon employers to bargain in good faith with certified bargaining representatives of employees “in respect to rates of pay, wages; hours of employment; or other conditions of employment.” 29 U:S.C. 159(a) (1994).
79. See LEE BALLIET, SURVEY OF LABOR RELATIONS 126-27, 131-32 (2d ed. 1987).
80. See id. at 156; AFL-CIO, Pus. No. 75, AFl-CIO MANUAL FoR SHOP STEWARDS 11, 13 (1988).
83. See Electromation, Inc., 309 NLRB Dec. (CCH) 990 (1992). Electromation involved the National Labor Relations Board’s interpretation of the NLRA provision that finds it an “unfair labor practice for an employer . . . to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.'” 29 U.S.C: 158(a)(2; (1994).
82. JOHN KENNETH GALBRAITH, AMERICAN CAPITALISM 137-38 (1952.
83. JOHN KENNETH GALBRAITH, THE GOOD SOCIETY 66 ( 1996).
84. Thomas A. Kochan, The American Corporation as an Employer: Past, Present, and Future Possibilities, in THE AMERICAN CORPOR.AION TODAY 247 (Carl Kaysen ed., 1996).
85. Baron & Neuman, supra note 8, at 459.
86. Neuman & Baron, supra note 8, at 403,
87. See id.
88. See generally Austin, supra note 3, at 37-42 (discussion of management control and segments of the workforce).
89. See id. at 38.
90, Id: at 37, 39.
91. Id. at 40. These workers comprise the “secondary market.” Id. On the next sung are the blue-collar workers who make up the “subordinate primary market.” Id. At the tap rung are the “white-collar supervisory and mid-level administrative personnel, : . . craft workers, and professionals” who comprise the “independent primary market.” Id.
92. Id. at 42:
93: PAUL OSTERMAN, EMPLOYMENT FUTURES 68 (1988).
94. See id.; LAWRENCE MISHEL ET AL., THE STATE OF WORKING AMERICA 1996-97, 265 (1997). Economist Bennett Harrison calls this phenomenon “numerical flexibility, whereby jobs are redesigned so as to substitute part-time, contract, and other `contingent’ workers . . . for full-time employees.” BENNETT HARRISON, LEAN AND MEAN 130 (1994).
95. A 1986 survey of` major companies found that thirty-six percent of the firms had an in-house temporary labor pool, seventy-seven percent used temporary-help agencies, and sixty-three percent hired people as independent contractors. See MISHEL ET AL., supra note 94, at 266. A 1996 survey of major companies found that use of these contingent arrangements by surveyed firms was forty-nine percent, ninety-seven percent, and seventy-eight percent, respectively. See id.
96. ld. at 265.
97. MacDonald & Sirianni, supra note 54, at 13 (quoting Janice Castro, Disposable Workers, TIME, Mar. 29, 1993, at 44).
98. Baron & Neuman, supra note 8, at 7.
99. Grimsley, supra note 1, at HS (quoting Neuman).
100. Cf Title VII of the Civil Rights Act of 1964, 42 i.i.S.C. 21?OOe-2(XIe-15 (1994) (prohibiting employment discrimination on the bases of race, color, sex, national origin, and religion) [hereinafter Title VIII.
101. Cf Occupational Safety and Health Act, 29 U.S.C. 651-678 (1994) (requiring employers to maintain safe workplaces) (hereinafter OSHA].
102. See RESTATEMENT (SECOND) OF TORTS sec 46(1) (1965).
103. See, e.g., Title VII of the Civil Rights Act of 1964. 42 U.S.C, 200e-2000e-IS (1994) (prohibiting employment discrimination on the bases of race, color, sex, national origin, and religion); Americans with Disabilities Act, 42 U.S.C. 12101; 12112(a) (1994) (prohibits employment discrimination “against a qualified individual with a disability because of the disability”).
104. 29 C1.S.CC. 151-169 (1994).
105. 29 U.S.C. 65 651-678 ( 1994) (requiring employers to maintain safe workplaces).
106, I have limited this discussion to potential causes of action that can be invoked by employees during the course of the employment relationship. Also relevant, but beyond the scope of this article, is the question of whether bullied employees who “voluntarily” Leave their jobs are eligible for unemployment compensation benefits.
107. RESTATEMENT (SECOND) OF Towns 46(l) (1965).
108. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1995): .see also Travis v. Alcon Labs., Inc., 504 S_E.2d 419, 425 (W. Va. 1998) (enumerating four elements of lIED).
109. In preparation for this article, I examined numerous state court decisions addressing LIED claims arising out of work situations decided during a three-year period running roughly from Summer 1995 through Summer 1998. A Westlaw search uncovered hundreds of decisions. From that initial yield, I made an admittedly subjective selection of cases that I believe fairly reflect the state of lIED doctrine in disputes arising out of the workplace. I paid particular attention to fact patterns that are relevant in assessing the degree to which LIED is an effective legal response to workplace bullying.
I selected the period of 1995 to 1998 to “catch” cases that demonstrated the relationship between workplace lIED claims and hostile work environment claims brought under employment discrimination laws. This necessitated providing some “lead time” for courts to incorporate the Supreme Court’s approach to defining a hostile work environment, decided in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (holding that both subjective and objective standards are applied in determining whether a hostile work environment exists). Therefore, most of the cases cited and discussed below come from that period, although I have not hesitated to use earlier cases to illustrate important points.
110: See, e.g.; Holloman v. Keadle; 931 S.W,2d 413 (Ark. 1996) (finding that supervisor’s repeated curses, insults, and threats over two-year period not outrageous conduct unless supervisor had prior knowledge of employee’s emotional vulnerability); Crowley v. North American Telecomm. Assn. 691 A.2d 1169, 1172 (D.C. 1997) (finding that supervisor subjecting employee to “contempt, scorn and other indignities” not outrageous conduct); Turnbull v. Northside Hosp., Inc., 470 S.E.2d 464, 465-466 (Ga. 1996) (finding a variety of “childish and rude” behaviors not outrageous conduct); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Ct. App. 1998) (finding supervisor’s yelling, browbeating, and other forms of harassment not outrageous conduct); Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994) (finding supervisor’s “insulting, demeaning, and vindictive course of conduct” not amounting to outrageous conduct).
111. RESTATEMENT(SECOND) oF TORTS sec 46 cmt. d ( 1965).
112. 470 S.E.3d 464 (Ga. 1996).
113. Id. at 466.
114. See id.
115. 655 A.2d 703 EVt. 1994).
116. Id. at 704.
117. Id. at 706.
118. 962 P:2d 678,682-84 (Okla. Ct. App. 1998).
119. Id: at 682-83.
120. Id. at G84.
121. 69I A.2d 1169 (I3.C. 1997).
122. Id: at i 172.
124. See id.
125. 931 S.W s.w2a 413 (Ark. 1996).
126. See id at 417.
127. See id. at 413.
132. See id.
133. See id.
134. Id. Holloman’s claim that she remained in the job for two years because she was a single parent was unpersuasive to the court, which responded, in part, that `”we cannot say that this status is in any respect unique.” Id.
135. See RESTATEMENT (SECOND) or TORTS sec46 cmt. f (1965) (stating that outrageousness may arise out of the actor’s knowledge of plaintiffs peculiar susceptibility to emotional distress.
A more appropriate application of this provision can be found in Kroger v. Willgruber, 920 S.W.2d 61, 67 (Ry. 1996, where the Kentucky Supreme Court found that the defendant’s prior knowledge of the plaintiff’s “precarious emotional health” was properly considered by the jury in determining that the defendant’s conduct was outrageous.
136. The Holloman decision appears to be the result of a distorted reading of a previous Arkansas Supreme Court case, Tandy v. Bone, 678 5.W.2d 312 (Ark. 1984. Tandy involved an employee who was refused permission to take prescribed tranquilizers during the course of a day-long interrogation by store security personnel about internal theft. See id. ai 315. There, the court found that the employer’s behavior could be considered outrageous only if it had prior notice of the employee’s condition. See id. at 317.
In contrast to Holloman, Tandy appears to be a case in which prior notice is relevant to a finding of outrageousness. The court in Tandy suggests that the complained-of behavior, on its face, is not outrageous, but prior knowledge of the employee’s condition could make it so. Holloman suggests it is wholly unnecessary to look at prior knowledge, for a trier of fact could easily find that Dr. Keadle’s behavior, standing alone, was outrageous. There simply is no comparison between the day-long behavior in Tandy and the ongoing pattern of abuse lasting some two years in Holloman.
The Arkansas court also misclassified the Holloman case within the taxonomy of workplace lIED cases. Although, as the court recognized, Holloman “was not discharged, nor [did) she claim that she was constructively discharged,” it aligned this case with other decisions in which unsuccessful plaintiffs had alleged lIED solely or primarily because they were discharged. Holloman, 931 S.W.2d at 413; see also text accompanying notes 188-90 (discussing why termination itself does not constitute outrageous conduct): In doing so, the court severely marginalized the abusive behavior that had occurred over a long period of time.
137. See, e.g., Polk v. Inroads/St. Louis, Inc., 951 S.W.2d 646 (Mo. App. 1997) (reinstating claim where plaintiff was subjected to “a calculated plan to cause . . . emotional harm” after she exposed misrepresentations by her supervisor); Vasarhelyi v. New Sch. for Soc. Research, 230 A.D.2d 658 (N.Y.
App. Div. 1996) (finding severe and outrageous conduct where employer subjected plaintiff to harassing and humiliating behavior after she questioned propriety of university president’s internal financial dealings).
138. 230 A.2d 658 (N.Y App. Div. 1996).
139. See id, at 659.
140. Id. at 659-60.
141. See id, at 661-62.
142. See, e.g., Jeremiah v. Yanke Mach. Shop, Inc., 953 P:2d 992. 998-99 (Idaho 1998) (finding dismissal appropriate where, despite demeaning and obscene behavior, evidence that plaintiff was “seriously frustrated” did not constitute severe emotional distress); Priest v. TFH-EB, 711 N.E.2d 1070 (Ohio Ct. App. 1998) (finding that plaintiff’s testimony that she felt humiliated and degraded was insufficient to establish severe emotional distress): McNeil v. Case V4′. Reserve Univ., 664 N.E.2d 973, 977 (Ohio Ct. App. 1995) (finding the plaintiffs claims that she was upset; angry, and experienced fear, anxiety, and distress were insufficient to establish severe emotional distress).
143. RESTATEMENT (SECOND) oF TORTS sec 46 cmt. j (1965).
144. 380 A.2d 611 (Md. 1977).
145. Id: at 612:
146. See ict.
147. See id. at 612-13. The court’s decision does not make clear that his physical and emotional problems were interrelated and reinforcing of one another, but a reading of the facts suggests that this may have been the case. See id:
148. Ser id. at 612. Jones was not the only perpetrator; as other workers mimicked Harris’s stuttering as well. See id.
151. See irl. at 613:
152. See id. at 612.
154. See xd.
155. See id. at 613, 616:
156. See id. at 617.
159. see ic. ‘
160. Td. at 612.
161. Id. at 616 (quoting RESTATEMENT (SECOND) OF TORTS sec 46 cmt. j (1965)).
162. See id. at 617.
163. Numerous recent decisions demonstrate the link between successful workplace lIED claims and factual allegations of status-based harassment or discrimination. See, e.g., Takaki v. Allied Mach. Corp., 951 P.2d 507, 516, 518 (Haw. Ct. App. 1998) (holding that summary judgment for defendant was improper on both discrimination and IIED counts where, among other things, supervisor frequently called the plaintiff a “lousy f-king Jap”); Martin v. Bigner, 665 So: 2d 709, 711-12 (La. Ct_ App. 1995) (holding that trial court’s granting of defendant’s “no cause of action” exception was erroneous as to both sexual harassment and IIED counts, where plaintiff alleged that she was subjected to sexually harassing physical and verbal conduct during a four-month period); Taylor v. Metzger, 706 A.2d 685, 692-95 (N.J. 1998) (holding that summary judgment for defendant was improper an both discrimination and lIED counts where defendant allegedly uttered racial slur at plaintiff); Denning-Boyles v. WCES, Inc., 473 S.E.2d 38, 41 (N.C. Ct: App. 1996) (holding that summary judgment for defendant was improper where superior allegedly directed repeated vulgarities and sexual comments to plaintiff an a daily basis); Sato v. El Paso Natural Gas Co., 942 S.W.2d 671, 677-81 (Tex. Ct. App. 1997) (holding that summary judgment for defendant was improper an both sexual harassment and lIED counts, where supervisory employee’s alleged conduct included fondling and ridiculing female employee after she returned from breast cancer surgery); Kanzler v. Renner> 937 P.2d 1337, 1443-44 (Wyo. 1997) (holding that summary judgment for defendant was improper where alleged conduct included defendant rubbing his crotch on plaintiff’s leg).
The Texas Court of Appeals explicitly recognized the distinction between ordinary, nonmeritorious IIED claims and those involving “vile, offensive racial slurs.” Saucedo v. Rheem Mfg. Co., 974 S.Vf:2d 117, 124 (Tex. Ct. App. 1998) (holding that the complained-of conduct was not outrageous).
This analysis mirrors that of Professor Austin in her examination of earlier workplaceIIEDcases. See Austin, supra note 3, at 12 (stating that workplace lIED claims “that are most likely to survive court review are those attacking harassment based on race, ethnicity, national origin, and sex”) (footnotes omitted).
164. 942 S.W. 2d 671 (Tex. Ct. App. 1997).
165: See-ld at 674-76.
166. See id. at 694-75.
167. Id. at 675.
168: Id. at 676.
170. 937 F2d 1337 (Wyo. 1997):
171. fd. ah 1338-39.
172. See id: at 1339-40.
173: ,id. at 1340.
174: See td, at 1338.
175; Id. at 1341-42.
176. Id. at 1342 (quoting Retherford v. AT&’L’ Communications of Mountain States, Inc., 844 1?2d 949: 978 (Utah 1992)):
177- 706 A.2d 685 (N.3. 1998):
178. Id. at 696.
179. See id. at 696-700.
180. See id. at 697.
181. See, e.g., Luedee v. Strouse Adler Co., No. CV-970257057, 1998 WL 46628. at “2-4 (Conn. Super. Ct. Jan. 29. 1998) (denying motion to strike statutory age discrimination claim but granting motion to strike lIED claim on ground that pleaded facts did not demonstrate extreme and outrageous conduct); Jeremiah v. Yanke Mach. Shop, Inc., 953 P.2d 992, 998-99 (Idaho 1998) (holding evidence sufficient to support hostile work environment claim based upon national origin but insufficient to prove severe emotional distress for ICED claim); Costilla v. Minnesota, 571 lv.w`.2d 583, 594-96 (Minn. Ct. App. 1997). revie;e denied, (1998) (holding that where issues turded on employer’s actions and inactions in response to harassment, summary judgment for defendant improper for statutory harassment claim but proper for lIED claim): Anderson v. Oklahoma Temp.Servs.,, Inc., 925 P.2d 574, 577 (Okla. Ct. App. 1996) (holding summary judgment for defendant proper for LIED claim based upon allegations of crude and sexually vulgar comments over two-year period on ground that conduct was not sufficiently extreme and outrageous); Hoy v. Angelone, 691 ,A.2d 476, 479-83 (Pa. Super. Ct. 1997) (dismissing lIED count following verdict for plaintiff, where supervisor had subjected plaintiff to various for-tns of abusive treatment, including sexual propositions, necessitating psychiatric help); Franklin v. Enserch, Inc.., 961 S.W.2d 7C>4, 709, 711 (Tex. Ct. App. 1998) (holding summary judgment for defendant improper for gender-based disparate treatment count but proper forIIEDcount because conduct not outrageous); see also Jeffress v. Yale Univ., No. CV-9b038b8b, 1997 WL 566096, at *2, *5 (Conn. Super. Ct. Aug. 28, 1997) (dismissing statutory race and sex discrimination claims because plaintiff failed to exhaust administrative remedies and dismissing lIED claim because plaintiff did not allege requisite level of extreme and outrageous conduct).
182. 691 A.2d 476 (Pa,Super:Ct. 1997).
183. Id. at 479.
184. See id. at 483.
185. 953 P2d 992 (Idaho 1998).
186. Id. at 998-99.
187. Id. at 999.
288. See. e.g., Gosvener v. Coastal Corp., 59 Cal. Rptr. 2d 339, 346 (Cal. App. 1996 (holding that dismissal of employee who continued to abuse alcohol was not outrageous; Mandani v. Kendall Ford, Inc., 818 P.2d 930, 934 (tar. 1991) (holding that “mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior”; Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex: 1998) (holding that mere fact of termination, even if wrongful, is not extreme and outrageous; Sebesta v: Kent Elec. Corp., 886 5.W.2d 459: 463-64 (Tex. Ct. App. 1994) (holding that termination alone is not outrageous, even if in violation of a statute); Farnum v. Brattleboro Retreat, Inc., 671 A.2d 1249, 1256 (Vt. 1995 (holding that firing of long-terra employee without warning is not extreme and outrageous; Terry v. Pioneer Press, Inc=, 947 P.2d 273. 278 (Wyo. 1997 (holding that discharge permitted by contract gives employer complete defense to lIED claim, even if it is aware the discharge will cause emotional distress).
189, See, e.g., Mandani, 818 P.2d at 934; Franco, 971 S.W.2d at 54; Farnum, 671 A.2d aE 1256.
190. Cf. McCain v: Eaton Corp., 623 N.YS.2d 626, 627 (N.Y. App. Div. 1995) (lIED “cannot be pleaded for the purpose of circumventing the rule prohibiting an at-will employee from suing for wrongful discharge”.
191. See Clark v. Eagle Sys., Inc.. 927 P.2d 995, 1000 (Mont. 1996) (holding that where plaintiffs demotion “was attributable to unsatisfactory job performance” summary judgment on 11ED claim was proper); cf. Bozzuto v. Holler, No. 355625, 1996 WL 737516, at *3 (Conn. Super. Ct. Dec. 12, 1996) (where defendant issued three written warnings to plaintiff for poor job performance, summary judgment on IIED count denied only on question of whether the manner in which the discipline was executed constituted outrageous conduct).
192. Sebesta, 886 S.W.2d at 461 (plaintiff told of termination, immediately assisted in packing her belongings, then escorted out of the building to her car by the director of personnel and a warehouse employee “when everyone was returning from lunch”); Wornick Co. v. Casas, 856 S.W.2d 732, 733-34 (Tex. 1993) (plaintiff told of termination despite favorable job evaluations, ordered to leave premises immediately, escorted to her car with boxes of her belongings by two security guards).
193. See, e.g., Sebesta, 886 S.W.2d at 463 (holding that exit parade cannot “be reasonably regarded as extreme or outrageous”); Wornick, 856 S.W.2d at 736 (same); see also Muniz v. Kravis, No. CV-94-0065789, 1995 WL 542120, at *6 (Conn. Super Ct. Sept. 6, 1995) (finding no outrageous conduct when employer used an armed security guard to notify plaintiffs of their termination and gave them 24 hours to vacate the premises, where one plaintiff was on vacation and the other had just returned to work after surgery the day before). Note; however, that allegations of discriminatory animus may have a positive effect on IIED claims relating to the manner of discharge as well. See Hosaflook v. Consolidation Coal Co., No. 23045, 1996 WL 717106, at *8 (W. Va. Dec. 10, 1996) (reversing summary judgment for defendant in case involving alleged disability discrimination.
In a slightly older, seemingly anomalous case concerning the manner in which a person was fired, the Massachusetts Supreme Judicial Court upheld an lIED claim where a restaurant manager gathered his waitstaff together and promised to fire them in alphabetical order until someone produced the name of an alleged thief. See Agis v. Howard Johnson Co., 355 N.E.2d 315, 316 (Mass. 1976). Plaintiff Debra Agis was the first person fired, and the court found her allegations of outrageousness and severe emotional distress sufficient to reinstate her complaint. See id at 319, Since Agis, however, the court has held that workplace lIED claims are barred by the state’s workers’ compensation statute. See Green v. Wyman-Gordon Co., 664 N.E.2d 808, 813 (Mass. 1996) (holding that exclusivity provision of workers” compensation law bars common-law emotional distress claims).
194. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W2d 640, 644 (Tex. 1995) (holding that questioning management-level employee to explain report of misconduct was not outrageous); Johnson v. Prime Bank, 464 S.E.2d 24, 26 (Ga. Ct. App. 1995) (holding that bank investigation of employee’s possible involvement in a murder was not outrageous).
195. 891 S.W. 2d 640 (Tex. 1995).
196. Id. at 644.
197. 678 S,W:2d 312 (Ark. 1984).
198. See id. at 316.
199. See id.; see also Vasarhelyi v. New Sch. for Soc. Research, 646 N.Y.S.2d 795, 795-96 (N.Y App. Div. 1996) (holding that employee stated a cause of action for lIED where, among other things, she was subjected to lengthy, abusive, and humiliating interrogations by investigators who were trying to identify who leaked a confidential memorandum).
200. See ARTHUR LARSON Bt LEX K: LARSON, LARSON’S WORKERS’ COMPENSATION LAW 1.01 1999).
203: Compare Green v. Wyman-Gordon Co., 664 N.E.2d 808, 811 (Mass. 1996) (holding that workers’ compensation act bars employee’s lIED claim), Cole v. Fair Oaks Fire Protection Dist., 729 P.2d 743, 750 (Cal. 1987) (same, and Kandt v. E.B. Evans, 645 P2d 1300. 1303-Od (Cola. 1982 (same), with Coates v. Wal-Mart Stores, Inc., 976 P.2d 999, 1006 (N.M. 1999) (holding that workers’ compensation act does not bar employee’s lIED claim), Elson v. Consol. Edison Co., 226 A.D.2d 288, 289 (N.Y. App. Div. 1996) (same> McSwain v. Shei> 402 S.E.2d 890, 891-92 (S.C. 1991) (same), and White v. Monsanto Ca., 570 So. 2d 221, 223 (La. Ct. App. 1990) (same).
It is beyond the scope of this article to fully explore the legal questions of whether workers’ compensation statutes are the exclusive remedies far various types of injuries at work. For commentary, see, for example, Jane Byeff Korn, The Fungible Woman and Other Myths of Sexual Harassment> 67 `ItiL_ L. REv. 1363 ( 1993); Note, Exceptions tn the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 HARV_ L. REV. 1641 (1983; Leslie Hertz Kawaler, Note, Intentional Torts Under Workers’Compensation Statutes: A Blessing oru Burden?, 12 HOFSTRA L. REV. 181 (1983).
204: 664 N.E.2d 808 (Mass. 1996).
205: Id. at 813 (citation omitted.
206. See id, at 552-53.
207. See id. at 552.
208. Mass. GEN. LAWS ch. 152, (52, 24 (1994), quoted in Green, 664 N.E.2d at 813 n.10. 209. See Miss. GEN, Laws ch: 152, 1(7A) ( 1994), quoted in Green, 664 N.E.2d at 813.
210. See Green, 664 N.E.2d at 813.
211. 696 N:E.2d 953 (Mass. App. Ct. 1998).
212. See id: at 958-58.
213: See id:
214. Id. at 956.
216. Mass. GEN. Laws ch. 152, 28 (1994).
217. See Mass: GEN. LAws ch. 152, 34 35 (Supp. 1999). As one workplace safety watchdog group advises,-those who have a history of mental or emotional problems may have difficulty meeting this standard. See WESTRN MASS.COALITION FOR OCCUPATIONAL SAFETY AND HEALTH, HURT ON THE JoB 5 (1995).
218. See LARSON & LARSON, supra note 200; at 1.01.
219: See RI;sT:Tr>EttEN-F (SECOND) oF TORTS 46 ( 1965).
220. See, e.g.. Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994) (citing RESTATEMENT (SECOND) OF TORTS sec 46 cmt. d ( 1965) with approval in recognizing that the “ignoble and vast realm of unpleasant and often stressful conduct in the workplace” should not be actionable); Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425-26 (W. Va. 1998), (quoting Res’rnrTtsrErrr (SECOND) oF TC)RTS 46 cmL d (1965)); Porterfield v. Galen t-tosp: Corp., 948 5.*V.2d 918, 920 (Tex. Ct. App. 1997) (same).
221. Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Ct. App. 1998): .see RESTATEMENT (SECOND) OF TORT sec 46 cmt. d ( 1965).
222. RESTATEMENT (SECOND) oF TORT sec 46 cmt. d ( 1965); see Travis, 504 S.E.2d at 425-26.
223. Many states have their own employment discrimination statutes and agencies to enforce them. In the interest of brevity and in recognition of the fact that the state courts and agencies frequently adopt federal discrimination law as persuasive precedent, however, the scope of this discussion is limited to federal statutory law and case law.
224. 42 iI.S.C. 20 2000e-2000e-15 (1994).
225. Id. at 2000e-2.
226. Although the statutory language does not include the term “sexual harassment,” Title VIPs proscriptions against discrimination on the basis of sex have been read by the federal courts and the Equal Employment Opportunity Commission to cover sexual harassment. See Meritor v. Vinson, 477 LJ.S. 57, 64, 67 (1986); Equal Employment Opportunity Guidelines on Discrimination Because of Sex, 29 C.ftR. 1604.11 (a) (1985).
227. “Disaggregation” refers to the way in which federal courts exclude nonsexual conduct from considerations of hostile work environment analysis. See generally Vicki Schultz, Reconceptualizing Sexual Harrassment,sment, 107 Yai_e L.l. 1683, 1710-29 ( 1998).
228. 477 U.S. 57 (1986).
229. Id: at 65, 67.
230. S 10 tt.S. 17 ( 1993).
231: See id. at 21-22 (1993.
232. Id: at 21:
233. Id. at 21-22.
234. See id: at 23.
236: Id. at 21.
237. Id. at 22.
238: 523 u.s. 75 (1998).
239. Id. at 77.
240: See id: at 81.
241. Id, at 81-82 (quoting Harris, 510 U:S. at 23):
242: Id. at 81-82.
243. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993):
244. Schultz, supra note 227, at 1713:
245: Id. at 1714. “Disparate treatment” is a form of intentional discrimination in which the defendant fails to treat a plaintiff the same as other employees or job applicants because of the plaintiffs membership in a protected class. MARK A. ROTHSTEiN Er nt.:, EMPLOYMENT LAw 97 (1994). 246. Schultz, supra note 221, at 1721.
247. See id. at 1716-17.
248. 736 F. Supp. 94, 100 (W.D.N.C. 1990), rev’d in part and affd in part; 946 F:2d 888 (4th Cir. 1991 ).
249. 618 F Supp. 1438, 1442 (S.D. Va. 1985).
250. 736 F: Supp. at 100 (quoting Katz v. Dole. 709 F.2d 251, 254 (4th Cir. 1983)).
253: Id: (quoting Katz, 709 F 2d at 254).
254. 618 F. Supp. at 1442.
257. See id:
258: Id: at 1141.
259. 736 F Supp. at 100.
260. Schultz, supra note 227, at I?21.
261. 524 U.S. 742 (1998).
262. 524 t3.S. 775 (1998?.
263. Ellerth, 524 U:S. at 765; Faragher, 524 U.S. at 807.
264. A tangible employment action includes actions “such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 tJ.S. at 765.
265. Id: at 765; Faragher, 524 U.S. at 807.
266, Ellerth, 524 U:S, at 765; Faragher; 524 I3.S. at 807.
267. Ellerth, 524 U:S. at 756 (quoting RESTATEMENT (SECOND) oF AGENCY 219(1) (1958)).
268. Id. at 757.
269. Id. at 759 (quoting RESTATEMENT (SECOND) OF AGENcY 219(2)(d) (1958))_
270. Id. at 762.
271. Id. at 763.
272. Id. at 764.
273. See Steven Greenhouse, Companies Set To Get Tougher Ore Harassment, N.Y. TIMES, June 28, 1998, at 1( “With the Supreme Court creating a new national policy an sexual harassment virtually overnight, many companies are moving quickly to re-examine their rules, expECting to adopt tougher measures to meet the Court’s standards.”); Sylvia Hsieh, Supreme Court Makes Ser Harassment Suits Harder for Employers> Law, LAW. WKLY USA, July 13. 1998, at 18 reporting on the impact of the Court’s decisions on company sexual harassment policies).
274. See Peter Aronson, Justices’ Sex Harassment Decisions Spark Fears, NAT’L L.J., Nov. 9. 1998, at 1 employment law specialists” in response to the Court’s decisions, “are reporting a dramatic increase in inquiries and requests for training-from large corporations that may just need to ‘tweak’ their sexual harassment policy to small companies that need to start from scratch”); Greenhouse> supra note 273, at 14 employment experts predict that because of the Court’s decisions, “tens of thousands of human resources officials and senior executives would soon begin fashioning their policies to reduce the chance of liability”); cf. Darryl Van Duch, No Letup in Harassment Claims, NAT’L L.J., June 21, 1999, at BI (reporting that inadequate training of executives and other employees on how to reduce sexual harassment in light of the Court’s decisions may be the primary reason behind the steady stream of new sexual harassment claims).
Additional evidence of the impact of Ellerth and Faragher can be found in the program agendas of continuing legal education programs for employment law practitioners. See, e.g., GEORGETOWN UNIV. LAW CTR. CONTINUING LeGAL EDI”C.t. Eot;c.> l7TH ANNUAL EMPLOYMENT Law & LITIGATION UPDATE (1999) (agenda contained in promotional flyer for April 1999 program includes a session titled, “What Hath the Supreme Court Wrought? New Directions in Harassment Cases”); NATIONAL, EMPLOYMENT LAW INST., EIGHTEENTH ANNUAL EMPLOYMENT LAw BRIEFING 1999) (agenda for MarCh 1999 programS includes a session examining the “new Supreme Court decisions redefining liability for sexual harassment and the protective actions employers should implement to mitigate potential exposure”‘).
275. 42 U.S.C. 2000e-3(a) (1994) antiretaliation provision).
276. See id. 200t)e-S(g,l.
277: See id.
278, Americans with Disabilities Act, 42 U.S.C. 12101, 12112(a) (1994):
279. Susan Stefan; You’d Have to be Crazy to Work Here: Worker Stress, The Abusive Workplace, and Title 1 of the ADA, 31 LoY. L.A. L. Rsv. 795, 797-99 (1998).
280. Id.’ at ?97-98 (footnotes omitted).
281. See generally id. at 81?ff-44 (suggesting analytical framework for using the ADA to respond to abusive work environments:
282. td. at 844.
283. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 ( 1993).
284: 119 S. Ct. 2139; 2143 (1999).
285. Id; at 2144 (quoting 42 U.S.C. 12102(2? ( 1994)):
286. Id. at 2143.
287: Id. at 2146.
288. Id: at 2149:
291. I should note that Professor Stefan claims net such role for the ADA. Rather, her thoughtful analysis simply suggests ways in which the ADA can be made more responsive to employees with work-induced psychiatric disabilities.
292. See 29 L1.S.C. secs 151-169(1994.
293. let. 157.
294. See discussion accompanying notes 73-83. However, it is important to note that the legal effect of federal preemption doctrine makes it impossible to draw any firm conclusions on this question simply from examining workplace-related IIED claims. If the resolution of a state-law tort claim is dependent upon an interpretation of a collective bargaining agreement, then that claim is preempted by
federal labor law. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988) (explaining preemptive effects of Labor Management Relations Act). Accordingly, many IIED claims brought by employees covered by collective bargaining agreements have been held to be preempted by federal labor law. See, e.g., Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir. 1992) (holding that IIED claim arising out of suspension and being escorted out of factory is preempted by federal labor law?; Mock v. TG&Y Stores Co., 971 F.2d 522 (tf)th Cir. 1992) (holding that IIED claim arising out of employer’s alleged misconduct during in-house investigation is preempted by federal labor law; Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348 (9th Cir. 1984) (holding that IIED claim arising out of employee’s discharge is preempted by federal labor law. Thus, preemption doctrine, not the “countervailing power” of a union presence, may very well explain the paucity of workplace-related IIED cases involving identifiably unionized employees.
295. 29 U.S.C. 15 1521.3), 157 (1994) (defining “employee”).
296. See id: 152(3 (1994) (excluding from statutory definition of “employee “any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual have the status of an independent contractor, or any individual employed as a supervisor”;Y.
297. See, e.g., NLRB v. Hendricks County Rural Elec. Membership Corp.> 454 U.S. 170 (1981 (exempting confidential employees); NLRB y. Yeshiva Univ., 444 U.S. 672 (1980) (exempting managerial employees.
298. See Dorothy Sue Cobble, Making Postindustrial Unionism Possible> in RESTORING THE PROMISE OF AMERICAN LABOR LAw 285, 295 (Sheldon Friedman et al. eds., 1994).
299. 511 U.S. 571 ( 1994).
300. See id. ax 576-84.
301. See Keashly, supra note 8, at 90:(summarizing studies of nurses).
302. 29 U.S.C. 157 (1994).
303: Id. Id. 158(a)(t):.
304: See id. 157 (stating that employees have the rights granted in section 7); id. 152(3) (defining “.employee”).)
305: Id. I 157.
306. The current state of section 7 doctrine before the NLRB is somewhat in flux. The prevailing interpretation is that, in the absence of a collective bargaining relationship. “an employee’s action may be concerted for the purposes of the NLRA only if the action is `engaged in with or an the authority of other employees, and not solely by and on behalf of the employee himself.’ ” Prill v. NLRB, 835 F.2d 1482, 1482-83 (D.C. Cir. 1987) (quoting Meyers Indus., Inc., 268 N.L.R.B. 493 (1984)) (footnote omitted), remanded; Frill v. NLRB, 755 ft2d 941 (D.C: Cir. 1985), and supplemented Irv Meyers Indus., Inc., 281 N.L.R.B. 882 1986), enforced sub nona., krill v. NLRB. 835 F.2d 1481 (D.C. Cir. 1987).
However, two members of the NLRB, including its current chairperson, have questioned this doctrine, thereby suggesting that the Board may someday make ii easier for an individual nonunion employee to avail herself of section 7’s protections. See Liberty Natural Products. Inc.. 314 N.L.R.B. 630 (1994) (Board Chairperson Gould and Board Member Browning “decline to rely on. and question the continuing vitality of, Meyers Industries”); Aroostock Co. Reg’l Opthamology Ctr., 317 N.L.R.B. 218 ( 1995).
307. See Katherine fan Wezel Stone, The Feeble Strength of One: Wht individual Worker Rights Fail, AMERICAN PROSPECT, Summer 1993, at 60-66. Professor Stone argues that individual employment rights “can always be repealed or negated through judicial interpretation.” in contrast to the ongoing political power that a strong labor movement can exercise: Ict. at 66, see also Joseph R. Grodin, Constiutional Values in the Private Sector Workplace, 13 INDUS. REL. L.L. I, 4 (1991). Professor Gradin states that
(a)s a former union lawyer, I grieve over the decline in union organization organization and regret the extent to which it has become necessary to rely upon legal regulation of the workplace to protect workers’ interests. Indeed, I have serious doubts regarding the ability of the law to protect those interests without the kind of support that a well-organized union can provide.
Id. at 4.
308. See HARPER & EsTREICHER. supra note 73, at 108 tbl.l.
309. See Steven Greenhouse, A.FL.-CIO. Puts Recruiting at Top of Its Agenda. N.Y. TIMES, Feb. 17, 1997, at 12. See generally JOHN SWEENEY, AMERICA DESERVES A RAISE: FIGHTING FOR ECONOMIC SECURITY AND SOCIAL JUSTICE (1996) (new AFL-CIO president outlines union organizing and policy goals far his administration).
310. See, e.g., Laura M. Litvan, Can Unions Fit In New Economy?, INVESTOR’S Bus. DAILY. Apr. 7, 1997, at L; David Moberg, The Resurgence of American Unions: Small Steps, Long Journey, 1 WORKING USA, May-June 1997, at 20, 26.
311. Occupational Safety and Health Act of 1970, 29 L1.S.C. 651(b) ( 1994).
312. Id. 651(a).
313. MARK A.120THTs,IN, OCCULPATIONAL SAFETY AND HEALTH LAW 4-5 (1998) (Observing that the main focus of Congress in considering the need for federal workplace safety and health legislation was the staggering impact of industrial disabilities and deaths); see also Work is Changing But Observers WInder if OSHA is Changing with It, C?.S.H. Daily (BNA) D-8 (May 24, 1999). OSHA chief administrator Charles Jeffress acknowledged that ” “70 percent of the workforce occurs outside of manufacturing and construction, yet 70 percent of our inspection activity is still going toward manufacturing and construction.’ ” Id.
314. 29 U.S.C. 654(a)(1) (1994).
315. Federal regulations pertaining to OSHA can be found beginning at 29 C.F.R. 1902. Although the National Institute of Occupational Safety and Health (the federal agency created under the statute to research occupational safety and health matters) has studied the effects of stress on workers and workplaces, its latest and most comprehensive report on the topic does not address whether there is a need for new public policy responses. See generally STREss AT WORK. supra note 29 (detailing the effects of occupational stress on employees and workplaces).
316. See Inspections: OSHA Averages Once Every 109 Years to Inspect Every Work Site, AFL-CIO Says, O.S.H. Daily (BNA) D-6 (Apr. 29, 1998) (AFL-CIO report states that a “combined 2,140 federal and state inspectors are responsible for about 7 million work sites”).
317. See 29 U.S.C. 559 (1994).
318. Id. 666(a).
319. See NAMIE & NAMIE; supra note 1, at 222-23 (many “Bullying War Veterans” advise bullying targets to confront the aggressors).
320. See Pickering v. Board of Educ., 391 U.S. 563. 567-68 (1968) (explaining that First Amendment protects public employee speech on matters of public concern); Connick v. Myers. 461 iS.S. 138, 146-47 (1983) (reiterating public concern test),
321. Case law interpreting the state action requirement of the First Amendment to the U.S. Constitution “has generally precluded the application of constitutional protections between purely private actors.” David C. Yamada, voices From the Cubicle: Protecting and Encouraging Private Employee Speech in the Past-Industrial Workplace, 19 Bt:atcT.EY T. EMP. & LAB. L,. 1, 23 (1998). In addition, courts have consistently held that state constitutional free-speech clauses do not provide speech protections for private employees. See generally id. at 26-35 (discussing applicability of state constitutional free-speech clauses to private employee speech),
322. This statute prohibits employers from disciplining or discharging any employee “on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or the free speech clause] of the constitution of the state,” unless the speech “substantially or materially interfere[s] with the employee’s bona fide job performance or the working relationship between the employee and the employer.” CoNs. CrF.N. 31-5 Lq (1987).
323. See Yamada, supra note 321, at 41-44 (discussing varying judicial interpretations of Connecticut statute).
324. For example, Title VII protects from employer retaliation any individual or labor organization who “has opposed any practice made an unlawful employment practice under this title, or because [the individual or organization] has made a charge, testified, assist led, or participated in any manner in an investigation, proceeding, or hearing under this title.” 42 U.S.C. 2tHM)e-3(a) ( 1994).
325. Editorial, Justice Scalia and Mr. Oncale, WAsta. POST, Mar. 8, 1998, at C6.
326. Jacobellis v. Ohio,378 U.S: 184, 197 (1964) (Stewart, J., concurring).
327. NAMIE & NAMIE, .supra note 1. at 17.
328. Keashly, supra note 8, at 87.
329. See id. at 109.
330. See generally DAVENPORT FL AL., supra note t (summarizing the author’s research and counselling techniques for victims of abuse inflicted by groups of coworkers).
331. 510 U.S. 17:21 (1993) (citations and quotation marks omitted).
332. Burlington Indus. Inc. v. Ellerth, 524 U:S: 742. 759 (1998) (quoting RESTATEMENT (SECOND) OF AGENcY 219(2)).
333: Harris, 510 U.S. at 21.
334. Id: at 22.
335. See Ellerth, 524 U.S. at 765; Faragher v. Boca Raton. 524 U.S. 775, 80? (1998).
336. Ellerth, 524 U,S, at 765: Faragher. 524 U.S. at 765;Faragher 524 LLS. at 808.
337. Clark v. Eagle Sys., Inc., 927 P.2d 995. 998 (Mont. 1996) (quoting MoNT. CODE; ANn. (sec) 39-2-903); see, e.g:, Graham v. fiardee’s Food Sys., Inc., 465 S.E.2d 558, 560 (N.C. App. 1996) (defining constructive discharge); Johnson v. Savannah College of Art & Design, Inc., 460 S.E.2d 308, 310 (Ga. Ct. App, 1995) (same); bV. CARL JORI)AN, irv., EMPLOYMENT DISCRIMINATION LAw 309-10 (3d ed. Supp. 1998) (same).
338. Selecting supervisors is a “critical function. especially during a period when supervisors and front-line managers are expected to do far more with less. Many employers traditionally have paid little attention to this important role.” KINNEY. supra note 30. at 131. Psychometric tests, psychological interviews, and peer reviews are among the tools that can be implemented to avoid selecting abusive supervisors. ,See idl. at 132.
339: This is consistent with both employment discrimination law and cases involving workplace lIED claims.
340. See generally discussion in Part II.B.3.
341. See generally discussion in Part ILH.4.
342. See 42 U.S.C. 2000e-5(g) (1994) (relief under Title VtI); 42 U.S.C. 2117 (1994) (relief under ADA).
343. Of course, any statute such as the one proposed here would implicate preemption doctrine. However, too many variables exist, not the least of which is whether the statute would he enacted at the federal or state level, to justify such an analysis at this juncture.
344. See supra text accompanying notes 244-60.
345. See, e.g.> CAL. PENAL CODE . (SEC)AL CODE- 422.7 (West 1999 (providing that a misdemeanor can be punished as a felony where the underlying conduct is motivated by the victim’s protected status); VT. STa.r: AN.t., tit. 13, 1455 (1998 & Supp. 1999) (providing penalties for crimes motivated by victim’s sexual orientation); Wis. STAT. 939.645(1(b) (1996) (providing enhanced criminal penalties for offenses motivated by, inter alia, the victim’s race, religion, disability, or sexual orientation). A thorough outline of hate crime statutes can be found in George L.. Blum, Annotation, Validity, Construction, and Effect of “HateCrimes Statutes, “Et7tnic Intimidation” Statutes, or the Like, 22 A.L.R.Sth 261 (1994-1998).
346. Mark McL.aughlin Hager, Iara.sment as a T(art.- 61%hy Title Vll Hostile Enr=irarrrvrent LiairilitO Should Be Curtailed, 30 CONN. L. REv. 375 (1998). For commentary that discusses, inter alia, Hager’s ideas, see JefFrey Rosen, In Defense Gender- Blindness, NEW REPUBLIC , June 29, 1998, at 25.
347. Hager.supra note 346. at 376.
349. See id. at 379-402.
350. Hager posits that Title VII fails to deter harassment because “it does not visit legal sanctions directly upon perpetrators” and because legal pressures upon employers to “adopt monitoring/control practices” curtail only less-egregious harassment. Id. at 389-90. It would be unfair to respond to those points because (lager’s article appeared before the Supreme Court’s decisions in Barlington indu.stries, Inc. t: Ellerth, 524 t!.S. 742 ( 3998), and Faragher v. Boca Raton. 524 U.S. 775 (1998). concerning an employer’s vicarious liability.
351. Hater, supra note 346, at 388:
352. See id. at 388-89.
353. Id. at 389.
354. The rule of at-will employment holds that an employment relationship is terminable at will by either the employer or employee, far any reason ar far no reason at all. For a general discussion about the rule and its incorporation into American Law, see Deborah A. Ballam, Exploding the Original Myth Regarding Employment-At-Will: The True Origins of the Doctrine, 17 BERKELEY J. EMP. & LAS. L. 91 ( 1996).
355. See generally Richard A. Epstein, In Defense of the Contract At Will, Si t3. CHi_ L. REV. 947 (1984).
356. Id. at 951.
358. Id. at 966.
359. See id. at 968.
360. See generally Lawrence E. Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exerecise of Employer Power, 67 COLUM . L Rev. 1404, 1413 (1967 (detailing the financial and psychological impacts of a job loss).
361. See Epstein, supra note 355, at 970.
362. Keashly, supra note 41, at 9.
364. Reference to Title VII’s relationship to the tort law is appropriate here. Notwithstanding Hager’s delineation between Title VII and tort law, both doctrines seek civil redress for personal injury. Justice O’Connor described Title VII as a statutory employment “tort” to address employment discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 264-bS (1989) (O’Connor, 7., concurring). A more colloquial, but equally apt characterization comes from my senior colleague Mare Greenbaum at Suffolk University Law School, who refers to Title VII as “torts dressed up for dinner.”
365. Duffy, supra gate 5, at 392.
367. Id. at 422-23.
368. 524 iJ:S. 775 (1998).
369. 524 U.S. ?42 (1998).
370. Id. at 423.
371. See id.
372. Id. at 423-24.
373. Austin, supra note 3; at 2 (conceding that wider application of IIED doctrine to work abuse will not; in and of itself, redress power imbalances in the workplace).
374. Duffy, supra note 5, at 424. This point is made in the discussion above about the jurisdictional limitations of the NLRA. See supra text accompanying notes 296-301.
375. See HARPER & ESTREUCHER, supra note 73, at 111 tbl.3.
* Associate Professor of Law, Suffolk University Law School, Boston, Mass. B.A., Valparaiso University, 1981; M.A. (Labor and Policy Studies), Empire State College, 1999; LD., New York University School of Law, 1985.
The author serves in a pro bono capacity as an affiliated scholar with the Campaign Against Workplace Bullying, a California-based, nonprofit organization that provides assistance and advice to targets of workplace bullying and analyzes private and public policy options to address this problem.
The following individuals graciously offered advice, feedback on drafts, and/or bibliographic suggestions: Noa Davenport, Andy Ellis, Marc Greenbaum, Loraleigh Keashly, Lewis Maltby, Susan MaraisSteinman, Gary Namie, Joel Neuman, and John Ohliger. Nicole Garretson; Suffolk ’99, provided timely research assistance. This article was supported by summer research stipends from Suffolk University Law School
Copyright Georgetown University Law Center Mar 2000
Provided by ProQuest Information and Learning Company. All rights Reserved