Bullying, Bigotry and a Bill to Prevent Picking on All Personnel
Unless bullying involves discrimination, it’s mostly legal to be a jerk at work. Some are trying to change that.
Culture is a powerful force, especially in the workplace.
In the right setting, high-stress, high-profile workplaces such as hospitals, law enforcement offices and professional sports teams can promote a culture of camaraderie and teamwork while producing positive results. However, big egos also can quickly reign supreme, leaving an environment ripe for intimidation and bullying. With no laws specifically preventing workplace bullying — unless the conduct involves discrimination — it’s legal to be a jerk at work, experts say.
Workplace culture likely played a role in a recent high-profile bullying case that became national news with the National Football League’s Miami Dolphins. In midseason, offensive lineman Jonathan Martin unexpectedly left the Dolphins saying he was being harassed by teammates, including fellow lineman Richie Incognito.
According to news reports, Martin was called a “big weirdo” by teammates and among other things was pressured to pay $15,000 for a trip to Las Vegas he didn’t attend.
But the most unnerving form of bullying reportedly came from Incognito, who allegedly sent him expletive-laden text and voice messages using racial slurs (Martin is biracial). In mid-December, Incognito agreed to a paid suspension ending his season, and the NFL’s investigation into the situation was still ongoing at deadline.
Some former NFL players and coaches said Incognito’s actions were simply part of the locker room culture in professional football. But to employment law experts, the legal implications of this form of bullying are pretty clear — even though the wider framework of how workplace bullying is treated under law can be somewhat gray.
Because Incognito’s alleged messages included racial slights, his actions could bring legal liability under Title VII of the Civil Rights Act of 1964, said Cheryl Wilke, capital partner at law firm Hinshaw & Culbertson.
Wilke, who runs the firm’s Fort Lauderdale, Florida, office, said any form of bullying that deals with race, sex, age, gender, disability, religion or national origin is grounds for legal action. Any other kind of bullying is probably legal, she said.
Nonetheless, case law shows that the line determining harassment of a protected class can be somewhat faint. In Morris vs. City of Colorado Springs, for instance, a female nurse sued her employer for sexual harassment under Title VII. Wilke said a male surgeon allegedly flicked the nurse’s head with his finger on two occasions, tossed heart tissue at her in the operating room and made demeaning comments implying she was incompetent.
The 3rd District Court of Colorado ruled in 2012 against the nurse, holding that her lawyers failed to establish the alleged harassment as “sufficiently severe or pervasive.”
The 10th Circuit Court of Appeals in Denver confirmed the decision, saying the surgeon’s conduct was “juvenile” and “perhaps independently a tort,” but that it didn’t alter the terms and conditions of the nurse’s employment.
Conversely, in Passananti vs. Cook County, a female employee of a sheriff’s department sued her former employer for sexual harassment, alleging that her male supervisor repeatedly called her a “bitch” in front of other employees. She also claimed the male supervisor falsely accused her of having sex with a prison inmate.
The 7th Circuit Court of Illinois ultimately ruled that the word “bitch” retains a sex-specific meaning, and that the supervisor’s false accusation about the female employee’s sex life supported the notion that he used the word in a sex-specific manner.
“If all they would have done is make Jonathan Martin pay for doughnuts and they got up and left when he came to the table … that would have fallen under the Morris case,” Wilke said. “But at the point that they use the N-word, it switches over to the Cook County case, because now you’ve brought race into it. ”
Although grounds for legal action with a protected class are somewhat clear, actually winning a lawsuit rests on the degree to which a plaintiff can prove the offensive conduct has created a hostile work environment, legal experts say.
Scott Watson, co-managing partner of the Chicago office of law firm Quarles & Brady, said the standard usually held by the courts is “fairly high” in determining a hostile work environment. According to the corresponding section of Title VII, the conduct has to be “unwelcome and offensive, and has to be severe or pervasive.”
“They have to show that no reasonable person could be expected to remain employed in that environment,” Watson said. “But it always has to be tied into one of the discrimination laws to come back to their race or their religion or their gender.”
David Yamada, a law professor and director of the New Workplace Institute at Suffolk University Law School in Boston, is working to change that. As the primary author of the Healthy Workplace Bill, Yamada aims to set a framework for legal action on workplace bullying outside of the protected classes.
His bill, which has yet to be adopted, would provide a “private right of action for someone who can show that they were intentionally subjected to an abusive work environment,” Yamada said. “It also holds employers liable for that behavior, while building in some defenses for them if they can show that they acted preventatively and responsibly toward bullying at work in that particular instance.”
An example: A superior might intentionally provide a subordinate with so much work knowing that he or she would not be able to handle it.
In isolation, this event would hold little water, and therefore would not be applicable under Yamada’s anti-bullying bill. But if the conduct were orchestrated and sustained, it could be grounds for legal action.
So far employment law experts say broadly trying to define bullying outside of protected classes might prove difficult.“We’re talking about a term, ‘workplace bullying,’ that 15 years ago wasn’t even in the employee relations vocabulary in the United States,” Yamada said. “We’re just starting to become aware of the fact that this is an identifiable, discreet form of mistreatment.”
Frank Kalman is a Workforce associate editor. Comment below or firstname.lastname@example.org. Follow Kalman on Twitter at .