The Bully – The Law and Where It’s Heading


Minnesota Continuing Legal Education – November 15, 2016
Sheila Engelmeier, Engelmeier & Umanah PA, Minneapolis
Christopher D. Jozwiak, Baillon Thome Jozwiak & Wanta PA, Minneapolis
Kevin Lindsey, Commissioner, Minnesota Department of Human Rights
Jessica Roe, Roe Law Group PLLC, Minneapolis

  1. Workplace Bullying Overview
    1. The Workplace Bullying Problem

      A 2014 survey by the Workplace Bullying Institute found that 27% of employees were currently or had previously been bullied at work. See http://www.workplacebullying.org/wbiresearch/wbi-2014-us-survey/. Workplace bullying can cause significant problems for both bullied employees (i.e. health problems, lost job opportunities) and employers (i.e. lost productivity, lost workers).

      In the United States, bullying behavior that is unrelated to an employee’s protected status is not regulated or prohibited. Most other western countries forbid bullying conduct in the workplace through broader anti-harassment laws or laws compelling employers to prevent bullying behavior.

    2. Model Legislation – The Healthy Workplace Bill

      In 2001, a group called The Healthy Workplace Campaign drafted a Healthy Workplace Bill to introduce in states around the country. The stated purpose of the law is to get employers to enact policies and procedures to prevent workplace bullying. The law would create liability on the part of both the employer (for failing to prevent bullying) and the bully as an individual. See http://healthyworkplacebill.org/.

      To date, 29 states have introduced the Healthy Workplace Bill, but none have passed it. No states have banned workplace bullying.

  2. Current Anti-Bullying Laws
    1. Minnesota

      Minnesota has no statute related to bullying in the workplace. The Healthy Workplace Bill was introduced in the House and Senate in 2015, but did not pass.

      Although the state has not enacted anti-bullying legislation, local governments have started to address workplace bullying. For example, in 2012, Hennepin County added workplace bullying to its Respectful Workplace policy that bars discrimination and harassment among employees and volunteers.  The policy says: "Workplace bullying is persistent behavior by a person or group that is threatening, humiliating and/or intimidating."

      State employees are also subject to an anti-bullying policy called the Respectful Workplace Policy, which The Minnesota Department of Management & Budget adopted in 2015.

    2. Other States

      No states have banned workplace bullying, but states are starting to address the issue in other ways. Here are some examples:

      • California requires employers to train supervisors about abusive conduct without regard to protected status, but does not make bullying behavior unlawful.
      • Utah requires state agencies to train supervisors and employees about how to prevent abusive conduct, the definition of abusive conduct, the resources available, and how to use the employer’s grievance process.
      • Tennessee has created a model policy for public sector agencies to prevent abusive conduct in the workplace.
  3. School Bullying, in Contrast

    As with workplace bullying, federal law does not regulate bullying in schools. But certain bullying may be covered by current federal civil rights laws, such as Title IV and Title VI of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; Section 50-4 of the Rehabilitation Act of 1973; Titles II and III of the Americans with Disabilities Act; and the Individuals with Disabilities Education Act (IDEA).

    The U.S. Department of Health & Human Services manages a comprehensive website that provides information regarding school bullying, who may be at risk, how to prevent bullying, and how to respond to it. See www.stopbullying.gov. No similar government website exists for workplace bullying, although private and non-profit organizations have created similar resources.

    All states have enacted some form of school anti-bullying legislation. Some of the statutes define "bullying," while others address bullying by defining harassment. Many states, including Minnesota, require school boards to adopt written policies prohibiting intimidation and bullying of any student. Some states also address cyberbullying or electronic harassment.

    Although all school districts have been required to have a policy against violence since 1989 (Minn. Stat. § 121A.03), Minnesota enacted a new statute regarding bullying in schools in 2014. See Minn. Stat. § 121A.031. Like several other states, Minnesota requires school boards to adopt written policies prohibiting intimidation and bullying of any student.

  4. Legal Theories for Dealing with a Bully

    Most cases challenging a bully have been thrown out of court, allegedly because the facts didn’t fit existing boxes for available remedies for plaintiffs. Like the common law ‘forms of action’ until 1938, the boxes became rigid. Begrudging interpretations emphasize form over substance. But many good judges want to make changes. We need to help them change the status quo.

    1. Successful Theories
      1. Whistleblower based on Freedom from Violence Statute

        Minnesota has a Freedom from Violence statute, effective in 1992: "The state of Minnesota hereby adopts a policy of zero tolerance of violence. It is state policy that every person in the state has a right to live free from violence." Minn. Stat. § 1.50.

        Absey v. Dish Network, 2013 WL 2460235 (Minn. App. June 10, 2013) – Employee complained to HR about boss who punched a hole in a door and threw a satellite dish and papers. Employee’s job was later eliminated and his applications for a transfer and, later, for a new position were rejected. The jury found that Employee’s whistleblowing on the violence issue was a motivating factor in Company’s decision not to offer Employee a later position in violation of the Freedom from Violence statute. But the Court of Appeals held that the whistleblowing statute does not apply to former employees. Former employees cannot bring a whistleblower claim based on an employer’s failure to rehire them.

        Mckenna v. Permanente Med. Grp., Inc., 894 F. Supp.2d 1258 (E.D. Cal. 2012) – Employee tried to report coworker’s threat under California’s Freedom from Violence statute, but the Court held that whistleblower was not one of the protected characteristics under the labor statute. The statute referenced only Title VII-type protected characteristics

      2. Whistleblower based on Disorderly Conduct

        Minn. Stat. § 609.72, subd. 1:
        Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

        1. engages in brawling or fighting; or
        2. disturbs an assembly or meeting, not unlawful in its character; or
        3. engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

        A person does not violate this section if the person’s disorderly conduct was caused by an epileptic seizure.

      3. Whistleblower based on the "General Duty" Clause of OSHA

        Under OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees."

        OSHA considers workplace violence to include threats of violence and verbal abuse. A contract provision regarding the employer’s obligation to maintain a healthy and safe work environment may therefore provide a basis for a workplace-bullying grievance.  "[E]mployers who do not take reasonable steps to prevent or abate a recognized violence hazard in the workplace can be cited." https://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf.

        Knighton v. Municipal Credit Union, 2009 WL 289668 (N.Y. Sup. Ct. 2009) – Employee sued Company after coworker charged at her and threatened physical violence. Employee’s retaliation claim based on Company violating OSHA’s General Duty Clause survived summary judgment.

        On appeal, the Court explained that one claim of retaliatory termination based on filing a complaint with OSHA was properly dismissed because the Company offered documentary evidence showing that Employee was not terminated in retaliation for filing a complaint with OSHA, a defense under the statute. See 71 A.D.3d 604 (2010).

        Adverse Actions – Adverse employment action means, "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006). Termination is clearly an adverse employment action, but, under this definition, probation is likely an adverse employment action as well. Probation, which may be a first step towards termination, may dissuade a reasonable employee from coming forward.

      4. Assault

        Raess v. Doscher, 883 N.E.2d 790 (Ind. 2008) – Employee sued after coworker advanced quickly with clenched fist, piercing eyes, and red-faced popping veins and screamed at Employee. Jury awarded $325,000 to Employee for assault.

      5. Public Policy

        Chopourian v. Catholic Healthcare W., 2012 WL 1551728 (E.D. Cal. Apr. 30, 2012) – Employee brought several claims, including two under Title VII and for discharge in violation of public policy. Jury awarded damages on all claims.

      6. Bullying Plus Discrimination = Hostile Work Environment

        Fuller v. Fiber Glass Systems, LP, 618 F.3d 858 (8th Cir. 2010) – Employee was subjected to a hostile work environment when her supervisor bullied her based on her race.

      7. Tortious Interference against the Bully (Not the Employer)

        Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70 (1st Cir. 2001) – A supervisor may be personally liable for tortiously interfering with a subordinate’s employment relationship with the employer.

    2. Legal Theories that Rarely, but Occasionally, Succeed
      1. Intentional Infliction of Emotional Distress

        The overwhelming majority of intentional-infliction-of-emotional-distress cases are dismissed. Courts usually find insufficient evidence of the severity of the injury or insufficient evidence of outrageousness. The standard is high!

        But see: Vasarhelyi v. New School Soc. Resarch, 230 A.2d 658, 661 (N.Y. App. Div. 1996); Hudgens v. Prosper, Inc., 243 P.3d 1275 (Utah 2010); Denton v. Silver Stream Nursing, 1999 PA Super 251 (PA 1999).

      2. Breach of Contract

        This theory sounds good, but seldom works. There are a few older handbook cases in the 1990s that were successful, but more recent claims based on language in a handbook or personnel file have failed because an employer handbook generally does not create a contract so a breach-of-contract claim against the employer of a bully is likely to fail. See Gerald v. Locksley, U New Mexico, 785 F.3d 1074, 1143 (D.N.M. 2011).

        See below for more information about bullying and employee handbooks.

      3. Bullying Without Discrimination

        Bullying behavior, by itself, will not be seen as a hostile work environment, although most laymen assume that it is. Most courts require bullying to be related to a protected status before the employee receives protection.

        Mathirampuzha v. Potter, 548 F.3d 70 (2d. Cir. 2008) – Employee was physically assaulted by a supervisor, who grabbed his arm, punched him, spit in his face, and poked him in the eye. The assault was insufficient to establish an adverse employment action or to support a race, color, and national-original hostile work environment claim.

        Gerald v. Lockley, Board of Regents of the Univ. of N.M., 785 F. Supp.2d 1074 (D.N.M. 2011) – Assistant coach was choked and punched by coach, but court dismissed race discrimination under Title VII, New Mexico Human Rights Act, First Amendment retaliation, retaliation, denial of equal protection, breach of contract, and punitive damages.  Only assault and battery survived against the coach.

      4. FMLA

        Requesting a transfer away from a workplace bully may show seriousness. But employers do not violate FMLA by refusing an employee’s request to return to work under a different supervisor. See Deery v. Port Auth. Transit Corp., 2006 WL 2470380 (D.N.J. 2006).

  5. Trial Issues
    1. Evidentiary Issues

      Rule 404 – Do not try to use incidents to show propensity. But Rule 404 may allow evidence for a purpose other than propensity.

      Whistleblowers – Whistleblowers are at a particular evidentiary disadvantage to prove their cases. See Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012).

    2. Expert Witnesses

      Expert witnesses may be permitted to testify about the impact of bullying on a plaintiff. Courts are less likely to allow expert witnesses to testify about the concept of workplace bullying and, of course, about whether the defendant in question is a bully.

      Kearney v. Orthopaedic & Fracture Clinic, P.A., 2015 WL 5194832 (Minn. Ct. App. Sept. 8, 2015) – Court of Appeals affirmed exclusion of proposed expert testimony regarding workplace harassment and bullying because bullying is commonplace, not new, and not beyond the jury’s understanding. Workplace bullying is not like battered-woman syndrome, which requires expert testimony.

    3. Jury Instructions

      Jury instructions will be based on the relevant theory, i.e. disorderly conduct, Freedom from Violence statute, whistleblowing statute, etc.

  6. Recent Issues Related to Employee Handbooks
    1. Termination of Bullying Employees

      Recent arbitration decisions reflect a trend in favor of finding just cause for terminating an employee who engages or threatens to engage in violent acts toward others. Specific threats of imminent harm to another employee generally provide just cause for termination. Conduct that is part of a history of harassing behavior may also provide just cause, even if the specific conduct is not particularly egregious or disturbing.

      Shell v. Tyson Foods, Inc., 2016 WL 4490716 (W.D.N.C. Aug. 25, 2016) – Employee repeatedly violated company policies by bullying, harassing, and intimidating employees. He also made nationality-based comments about employees. The Court determined that the employee’s age discrimination claim failed because the employee failed to produce direct evidence of age discrimination and failed to demonstrate pretext. The Company demonstrated a legitimate nondiscriminatory reason for terminating the Employee based on his demeaning and abusive treatment of other employees. This showing also demonstrated that the termination was not based on unlawful FMLA retaliation.

    2. Employer Handbooks

      Employer Handbooks or contracts can provide bases to pursue a bully or an employer of a bully. Examples include Anti-Discrimination Clauses, Health & Safety Clauses, and Mutual Respect or Anti-Bullying Clauses. But an employer handbook generally does not create a contract so a breach-of-contract claim against the employer of a bully is likely to fail.

      The NLRB has made it clear that, in implementing anti-bullying policies in employee handbooks, employers must be careful not to prohibit bullying-type conduct that also encompasses statutorily protected acts under Section 7.

      William Beaumont Hospital, Case No. 07-CA-093885 (NLRB Apr. 13, 2016) – The NLRB decided that two employees were lawfully discharged for acting mean, nasty, intimidating, negative, and bullying toward coworkers. But the NLRB addressed several sections of the employee handbook:

      • A policy prohibiting "Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism" is unlawful.
      • A policy prohibiting "Behavior that is . . . counter to promoting teamwork" is unlawful.
      • Language prohibiting conduct that "impedes harmonious interactions and relationships" is unlawfully overbroad because it could encompass any disagreement or conflict among employees, including those protected by Section 7.
      • A policy prohibiting "negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors" is unlawful because it could reasonably be construed to prohibit protected expressions of concern over working conditions.

      Roemer Industries, Inc., Case No. 08-CA-124110 (NLRB May 28, 2015) – Employee left a meeting with coworker and management and muttered that coworker was a "backstabber" and "couldn’t be trusted." Company gave Employee a 3-day suspension for bullying coworker in violation of Company’s Threats & Violence Policy.

      The NLRB decided that the statements were related to protected union activity and were not egregious because they contained no threats, profanity, abusiveness, or violence.

      Pier Sixty, LLC, Case No. 02-CA-068612 (NLRB Mar. 31, 2015) – Employee posted profane comment about supervisor on his Facebook page and urged his friends to vote "yes" in an upcoming union vote. Company said the comment violated company policy but could not point to a specific policy or explain the basis for the termination.

      The NLRB decided that the comment was protected concerted activity and union activity. In addition, the comment was not egregious because it was just like other common comments in the workplace that did not require disciplinary action. Importantly, the Company’s harassment policy did not prohibit vulgar or offensive language in general, and comments were not directed at a protected classification.