Bullying Before Sexual Harassment

The problem of workplace bullying is not unique to the entertainment industry. For example, National Security Advisor and former diplomat John Bolton’s reputation as an abusive boss and bully long-preceded his nomination to his current post. In fact, as early as 2005, the U.S. Senate blocked Bolton’s appointment to become U.S. ambassador to the U.N. reportedly in part over claims that he had bullied subordinates while in the State Department.”[4] The tech industry is legendary for “mercurial” visionary bosses with punishing interpersonal styles, such as Steve Jobs and Elon Musk.[5]

In October 2017, the Weinstein cases, closely followed by news of the Ailes cases among others, ignited the worldwide #metoo movement, uniting a generation around the important issue of sexual harassment of women at work. However, with the workplace spotlight focused squarely on workplace sexual harassment, the public is still compromising on a potentially much broader and equally-insidious issue. Perhaps sexual harassment is actually a symptom of the epidemic that is workplace bullying—a more generalized form of workplace harassment, or hostile work environment, which again disproportionately impacts women. Workplace bullying displays many similarities with sexual harassment even if the sexual element is missing.[6] It contributes to the same “hostile work environment” and has been referred to as the “next and different harassment.”[7]

The U.S.-based Workplace Bullying Institute (WBI) defines “workplace bullying” as: “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators,” The mistreatment is hostile and abusive, and may include behavior that is threatening, humiliating, intimidating, or involves work sabotage or verbal abuse.[8] WBI conducted the first and largest survey of its kind in 2007[9] and found that 37 percent of U.S workers (i.e., roughly 30 million employees) reported having been bullied.[10]

Furthermore, roughly two out of three respondents reported that, when management was made aware of the problem, it either did nothing or made the problem worse.[11] Even more alarming was that 70 percent of the perpetrators were men, who targeted women 65 percent of the time. Perhaps Ailes and Weinstein were not first and foremost sexual predators, but rather bullies who quickly learned they could get away with nearly any behavior provided their operations generated enough cash.[12] Ailes and Weinstein were known to be bullies, but management viewed them as indispensable and thus mischaracterized the bullying as a “personality conflict.”[13]

The WBI repeatedly conducted the national survey in 2010, 2014 and 2017. Most recent research statistics are not encouraging. The updated 2017 data shows that 70 percent of perpetrators are men, who target women 66 percent of the time. Even women, who make up 30 percent of total bullies target women 67 percent of the time.[14] The 2014 WBI survey[15]found that, for 61 percent of those who reported having experienced workplace bullying, the ultimate resolution was either losing their jobs (either by being forced out or fired) or being transferred elsewhere.[16] In the 2017 survey, that number was 65 percent.[17]

The fact remains that the majority of bullying targets are faced with the same two choices that faced Weinstein’s accusers: either endure the abuse or leave. Not surprising since the human resources department is nothing more than “the executor of a liability-avoidance strategy that ticks all the boxes (cookie-cutter antidiscrimination training, a perfunctory investigations process, silencing arbitration, and nondisclosure agreements).”[18] Indeed, Weinstein’s most recent employment contract extension “effectively monetized, rather than prohibited, ongoing acts of sexual harassment and misconduct,” which included increasing amounts of penalties paid per reported incident of misconduct![19] What other options are available to these bullying targets given the current solely status-based legal framework surrounding workplace bullying?[20]

U.S. Legal Options Currently Available to Targets of Workplace Bullying

The WBI website advises bullying victims that, when looking to hire an attorney, targets must consider whether any part of their bullying experience is rooted in protected-class discrimination based on their sex, age, race, national origin, religion, or mental or physical disability. It states that although only one out of five reportedworkplace bullying incidents involve protected-class discrimination, plaintiff-side employment attorneys, working on contingency pay arrangements, listen closely to prospective clients for evidence of this discrimination to determine the odds of prevailing.[21] It concludes that absent such proof of discrimination, it is very hard to get an attorney to take the case.

A look at the results of not merely reported but litigatedcases proves this advice is sound, as most attorneys are only interested in taking on status-based discrimination cases. An article focusing on the litigated results of randomly selected cases which mentioned workplace bullying in some way found that, of the 45 cases, 86.7 percent were based on some form of illegal protected-status discrimination under either Title VII,[2] the Americans with Disabilities Act, or the Age Discrimination in Employment Act.[23] This is why many consider status-based bullying claims under a protected-status discrimination theory, the “most legally protected type of bullying.”[24] However, even when discrimination is present, employers still prevail almost three out of four times. Looking at those same 45 cases, in 73.3 percent of the cases the employer prevailed, only 4.4 percent were remanded for retrial, and none rewarded monetary damages.[25]

Only 4.4 percent or roughly 2 of the 45 cases included tort claims for intentional infliction of emotional distress (IIED).[26] Absent a protected-class distinction, the tort of IIED[27] fails, as most courts either dismiss the claim, or grant summary judgment for the employer, concluding the behavior alleged is insufficiently “outrageous” to meet the high legal standard for an IIED claim.[28] In one case the court noted that incidents that are alone insignificant should not be aggregated to find the overall conduct is outrageous.[29]

Despite the abusive conduct being repetitive, courts have found that the following conduct is not “outrageous” enough: constant ridicule, invasions of privacy, intentional interference with ability to car pool, unreasonable workload,[30] yelling at plaintiff in front of other company executives, calling at 3:00 am only to yell at plaintiff, requiring plaintiff to needlessly cancel vacation plans, refusing to allow plaintiff to spend the day with his wife after the birth of his son, and delivering notice of termination two hours before the plaintiff’s wedding.[31] Thus, to look for a remedy by filing an IIED claim is unlikely to succeed. Given this barren legal landscape it is no wonder that most workplace bullying claims are filed based on sexual harassment, or as was the case with Ailes and Weinstein, nothing is done until the conduct reaches an “illegal” (i.e., status-based) level of harassment.

In this context, the argument that sexual harassment is only the “rancid tip of the iceberg” of workplace bullying becomes more persuasive.[32] In fact, bullying is actually much more prevalent than sexual harassment and racial discrimination.[33] The 2010 Survey by the WBI found that workplace bullying is four times more common than sexual harassment and racial discrimination.[34] The 2014 WBI survey showed that today 77 percent of currently bulliedtargets are bullied by perpetrators of the same sex (i.e. man-on-man and woman-on-woman).[35] In the 2017 survey that number remained high at 66 percent.[36] Seeing that workplace bullying is not only rooted in sexual or class-based discrimination, it is increasingly apparent to scholars and politicians that a new status-blind legal approach is needed to address this more prevalent workplace abusive-conduct problem.

A Possible U.S. Status-Blind Approach: “Intentional Infliction of a Hostile Work Environment”

The Healthy Workplace Bill (HWB) proposes status-blind protection from a hostile work environment. Law Professor David Yamada drafted the original and model HWB in 2001, proposing the new private right of action “Intentional Infliction of a Hostile Work Environment (IIHWE), intending to advance the four policy goals of: prevention, self-help, compensation, and punishment.”[37]

As the initial legislative language that is shepherding some of these changes, it is worthwhile to examine the IIHWE. In basic terms, this cause of action states: “It shall be an unlawful employment practice …to subject an employee to an abusive work environment” which “exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.”[38] Malice is further defined as “the desire to cause pain, injury or distress to another.” Abusive conduct is defined as “conduct…that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct.”[39] Tangible harm can be either physical or psychological and must be “established by competent evidence” usually in the form of a well-regarded practicing physician’s opinion.[40]

The HWB imposes vicarious, or automatic, liability on an employer for its employees’ violations but allows an employer’s affirmative defense to liability when: “(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and (2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”[41]

Arguments Against the HWB as a “Workplace Civility Code” and Reasons to Reconsider

Seeing a need and relying on the HWB as a guide, many states have since introduced some form of hostile workplace environment bill. As of 2019, the HWB has been introduced in 29 states. However, no state has passed the HWB, or any law establishing IIHWE as a private right of action.[42] New York would have been the first state to pass the HWB in 2010 (New York state senate bill S1823B passed the state senate but failed in the assembly). A previous 2009 version passed both the senate and the assembly but was vetoed by the governor. [43]

As of 2014, only California, Tennessee, and North Dakota have passed related laws defining abusive conduct and requiring more training or the adoption of preventative measures for public employees.[44] That is not going very far. Even California, at the forefront of the issue, has only adopted a hybrid mandate where anti-bullying has been added as a component of the preexisting bi-annual mandatory workplace sexual harassment training for all supervisors.[45] In California, as of January 1, 2019, employers with five or more employees must train all employees on prevention of abusive conduct and sexual harassment.[46] Currently, six states (UT, NY, WV, RI, CT, MA) are considering policies related to workplace bullying.[47] However, thus far the bills have lacked any kind of urgency, which the Weinstein and #metoo cases might change.

The HWB fails mostly for fear that this type of “workplace civility rule” will stifle productivity and create a workplace fraught with litigation from appropriate actions directed at low-performing and emotionally-fragile workers. The biggest opponents to the law are state and local Chambers of Commerce.[48] Their arguments against the HWB are two-fold: it will open the floodgates to frivolous litigation by poorly performing employees and those looking for a quick payday; and it is unfairly burdensome on small businesses to implement and enforce.[49] But there are certain “guardrails” built into the proposed HWB. In addition to the aforementioned high malice and tangible harm standards, abusive conduct is judged by the objective “reasonable person” standard to ensure against the overly-sensitive plaintiff.[50] To ensure that a plaintiff does not collect twice for any harm resulting from the same behavior, the HWB has an “election of remedies” clause requiring targets to elect whether they want to seek a remedy under either the workers compensation laws or the HWB.[51]>

For those that argue this law will open them up to higher insurance premiums and frivolous litigation, consider the high costs already put on businesses dealing with workplace bullying. WBI reported that workplace bullying costs employers and insurers $250 million annually in expenditures related to health care, litigation, turnover and retraining.[52] Additional losses due to negative publicity resulting from the bullying revelation are more difficult to calculate.[53] Still, that $250 million number seems rather small considering how widespread bullying is in the U.S. workforce.

In comparison, in Britain, a 2006 study reported that workplace bullying costs the British economy over £2 billion annually, which is approximately $3.3 billion in the form of 19 million lost workdays per year.[54] A 2002 study of 9000 U.S. federal employees reported that 42 percent of female respondents and 15 percent of male respondents reported experiencing bullying over a two-year period, resulting in a cost of over $180 million in lost time and productivity.[55] While there are no more recent numbers to report on the cost of bullying, the WBI has put forth a formula with a 1.5 multiplier to conservatively calculate employers’ turnover-related cost for each targeted departed employee (e.g., for each person earning $50,000, it costs the employer $75,000 to recruit and replace).[56]

It is true that an employer adding bullying to its list of prohibited workplace conduct is then legally obligated to enforce this policy, and may incur liability for failing to do so.[57] However, Professor Yamada points out that the most valuable function played by the HWB is actually a preventive one, as employers will have a strong legal incentive to preempt these abusive situations in the first place.[58] When considering that bullying behavior opens an employer up to other resulting liabilities, this is not an argument against rising costs, but rather a strong measure against potential liability. In fact, many management-side employment lawyers now advise employers to include workplace bullying in their employee handbooks.[59]

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a summary judgment motion alone can cost an employer between $75,000 and $125,000, and to take the case all the way to a jury verdict at trial the cost can go up to $250,000.[60] Recent payouts have been high. Gretchen Carlson’s lawsuit against Ailes and Fox News resulted in a $20 million payout in 2016.[61] Weinstein, who is awaiting a criminal trial in September 2019, is said to have reached a tentative $44 million settlement on civil suits filed by New York Attorney General Scheiderman and victims.[62] Since 2010, employers have paid out $698.7 million to employees alleging harassment through the Equal Employment Opportunity Commission’s (EEOC) administrative enforcement pre-litigation process alone.[63]

Healthcare and education are two industries highly prone to bullying and employers are routinely exposed to liability as a result of unmitigated bullying and hostile behavior.[64] Thus, it is not surprising that accrediting institutions in both industries are now requiring these institutions seeking accreditation to adopt antibullying policies in order to be accredited. In 2008 the Joint Commission (JC), a nonprofit organization that accredits healthcare organizations and programs, issued new standards on intimidating and disruptive behaviors “to assure quality and to promote culture of safety.”[65] The JC now requires organizations to: first, have a “Code of Conduct that defines acceptable and disruptive and inappropriate behaviors”; and second, to “create and implement a process for managing disruptive and inappropriate behaviors.”[66] The JC warns that “Healthcare organizations that ignore these behaviors also expose themselves to litigation from both employees and patients.”[67]

Consumer goods industries are also taking notice of an entrenched bullying problem that has gone unanswered by a complicit HR department.[68] Nike recently abruptly dismissed five top executives for concerns regarding their abusive and hostile behavior towards subordinates.[69] Worth noting is the fact that one of the five executives Nike dismissed was a woman, signaling that “Nike’s focus was no longer strictly about addressing sexism against women, but had instead broadened to include countering the larger and more general problem of bullying.”[70] Many financial analysts quickly opined that it would negatively impact their goal to reach $50 billion in sales by 2022, as CEO Mark Parker had announced in 2018.[71] The case to watch to get a better idea of what future liability exposure might look like is the class action suit against Microsoft. The plaintiffs are 8,630 women engineers and IT specialists, claiming they were cheated “out of 518 promotions and between $100 million and $238 million in pay between 2011 and 2016.”[72] Public opinion seems to be shifting and suggests that bullies in general, not just sexual aggressors, will no longer be tolerated.

A more difficult argument to validate against the HWB is an ideological one. Some have argued that protections against mistreatment at work are contrary to high performance expectations for workers and fostering a spirit of healthy workplace competition.[73] In many instances, “bullying is perceived as a legitimate managerial style.”[74] Managers and supervisors are the perpetrators in more than half (55.6 percent) of the cases and only 11.1 percent of the victims.[75] Some have defended this hostile behavior by indulging the viewpoint that holds that the passage of the HWB would undermine hard-driving, difficult, yet genius, bosses like Steve Jobs and Elon Musk.[766]

This view points to the American value of so called “rugged individualism” and concludes: “It is those who push us to excel to whom we often owe our greatest debt of gratitude. By labeling pushing as ‘bullying,’ there exists a profound risk that high expectations go by the wayside and employees are denied real opportunities for growth and advancement.”[77] In fact, the opposite is true. Studies suggest that bullying is not done to help grow the target into his/her potential, but rather to “reinforce entrenched social hierarchies” and exclude those who perpetrators feel are a threat.[78] Employees become targets because something about them is threatening to the bully, “Often they are more skilled, more technically proficient…or people just like them better.”[79] It is important to note that the HWB has a built-in damages cap ($25,000 damages cap on emotional distress cases that do not involve an adverse employment decision) as well as a high malice requirement standard precisely because it is targeting unreasonably abusive bullies at work and not simply hard-driving, hardworking, bosses.

Summary and Commentary

Public opinion is now shifting. As of 2017, 77 percent of Americans support a new law to address abusive conduct at work.[80] For every Harvey Weinstein, there are roughly 86,000 discrimination and retaliation cases filed with the EEOC each year.[81] The current status-based legal framework has proven insufficient to deal with the more-prevalent workplace bullying problem. Even the EEOC took note in 2015, when conducting a survey on workplace harassment it included “conduct and behaviors which might not be ‘legally actionable,’ but left unchecked, may set the stage for unlawful harassment.”[82] As bullies are equal opportunity abusers, blind to the status of their victims, so should be the law holding them and their enabling-employers accountable.

There is concern such a law will push people so far as to stifle their effectiveness. The fact remains that there are professions and high-pressure work environments which do require a thick skin.[83] Sometimes, there is no place for “please” and “thank you.” But to suggest that such a phenomenon will also deter “rugged individuals” from innovating and making companies competitive goes too far. Preventatively adopting workplace antibullying policies and deterring costly potential liability need not also result in an environment where co-workers are afraid to tell one another what they truly think of each other’s ideas. Neither need it result in a workplace where superiors are afraid to demand the best from their subordinates. Is there a legitimate reason to think that Steve Jobs, Elon Musk, John Bolton, Roger Ailes, and Harvey Weinstein were only able to bring out the best in their subordinates by harassing or berating them? Probably not. It may turn out that “invaluable” high-performing employees are “More Trouble Than They’re Worth.”[84]