Republished from The Complete Lawyer
Vol. 4, No. 1
Defining and Legislating Bullying
Behavior that does not reach the level of unlawful harassment or
discrimination is intended to be regulated by employer supported standards
or guidelines for professional conduct
By Garry Mathiason and Olga Savage
It is 4:13 p.m. on a Friday and no one is happy. In a regional Littler office, imagine that two members of the firm’s executive committee are meeting with a rainmaker who had recently made some harsh remarks to two associates. “I sometimes raise my voice,” the rainmaker says. “If the associates can’t handle that, how will they ever hope to hold their own in litigation?”
Is the rainmaker’s aggressive behavior justified, bad manners, or something to be prohibited as “bullying”? Is “workplace bullying” an isolated problem or is there a need for greater legal protection for those who become the target of the office bully?
In this brief review we will examine the national epidemic of bullying, workplace bullying definitions, the dangers of a legislative solution, and the value of building a workplace culture where jerks are unwelcome. Law firms, legal departments, and many other employers face the issue of whether aggressive behavior is business justified, bad manners, or something to be prohibited as “bullying.” While names and circumstances have been changed to protect the innocent, our firm has over the years made the tough decision to prohibit, even from “rainmakers,” clearly abusive treatment of others, including attorneys and the staff. Even in highly competitive law practices with “prima donnas,” sustainability and long term success depend on having a work environment that promotes mutual respect and teamwork. This is more than merely meeting minimum standards of prohibiting unlawful harassment and discrimination. In other words, it means having rules and a culture that proclaims “no jerks allowed!”
The Workplace Bullying "Phenomenon" Is All Too Real
The specter of the workplace bully strikes a chord with a disturbingly large part of the American workforce. Study after study has highlighted that our workplaces have lost, are losing and will continue to suffer because of the presence of workplace bullies. Law firms are no exception. A September 2007 survey of 7,740 employees, Zogby International (a scientific polling organization) reported that:
These numbers show damaging, abusive conduct that is four times more prevalent than illegal, discriminatory harassment.9
These employee victims of bullying are not the only ones harmed; the workplace bully also damages the business itself. He or she endangers the basic fundamental of any employer’s business: the productivity of its workforce. In his appositely titled work The No Asshole Rule, Stanford professor Robert Sutton presents us with a laundry list of “obvious and well documented” effects of “assholes” in the workplace: increased turnover, absenteeism, decreased commitment to work, and distraction and impairment.10 In a country where an estimated $74 billion is lost annually due to employee absenteeism11, the incremental impact of workplace bullies who literally bully valuable employees out of the workplace can make the difference between business success or failure.
Law firms present a special opportunity for some of the all-stars of workplace bullying. In a profession defined by confrontation, common courtesies can be lost. Too easily poor courtroom behavior can become abusive office behavior especially in the absence of someone with a gavel to demand “order.” Clearly some attorneys are role models for tolerance and respect, but others behave like they are auditioning for William Shatner’s role on Boston Legal. Workplace bullying is, unquestionably, a law firm challenge.
The Legal Definition Of Bullying Remains Elusive
What makes workplace bullying even more challenging is the difficulty of defining the phenomenon. What one associate may call “bullying” may be viewed by law firm partners as necessary oversight. The challenge is to create a common workable definition for a phenomenon that differs in almost every situation. To date, most definitions that have emerged fall into two categories: those that seek to explain the phenomenon, and those with ambitions of codification that try to package the phenomenon in language specific enough to serve as the basis for legislation.
The Workplace Bullying Institute (WBI), a non-profit organization and the founder and leader of the US workplace bullying movement, defines bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse, threatening, humiliating or offensive behavior/actions, work interference, sabotage which prevents work from getting done.”1 Bullying, according to the WBI, “(a) is driven by perpetrators' need to control the targeted individual(s), (b) is initiated by bullies who choose targets, timing, place and methods, (c) escalates to involve others who side with the bully, either voluntarily or through coercion, and it (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself.”2
The WBI, as the drafter and proponent of the predominant model on anti-bullying legislation, has also tried (as we shall later see, with little current success) to formulate a definition that courts can actually interpret and apply. The WBI’s Healthy Workplace Bill (HWB) defines workplace bullying—or rather, “abusive work environment,”—in terms largely reminiscent of Title VII hostile work environment claims. According to the HWB, an abusive work environment exists when the defendant, acting with malice, subjects the complainant to abusive conduct so severe that it causes tangible harm to the complainant.3 Abusive conduct is conduct that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.4 Tangible harm is physical or psychological harm.5
It's Dangerous To Try To Legislate Good Manners While Undervaluing Current Legal Sanctions
Armed with statistics and heart-wrenching stories, advocates have waged a campaign for anti-bullying legislation. Driven by the active grassroots campaign launched by the WBI, 13 states have introduced 29 separate pieces of anti-bullying legislation. Many are modeled on the HWB, while some call for further government-funded studies of the phenomenon.12 To date, the only piece of legislation that has passed is Hawaii Senate Resolution 106, which encourages employers to voluntarily adopt anti-bullying policies.13
What these legislative advocates are trying to do is to proscribe an area of harassment and abuse that doesn’t fall within the protection of Title VII and state anti harassment laws—the harassment that has nothing to do with the victim’s membership in a protected class.
But this area of “equal opportunity” harassment is not as unregulated as anti-bullying legislation advocates fear. Courts are pushing the lines of harassment laws to accommodate claims of harassment that seem to be entirely unrelated to discrimination and are, in effect, run-of-the-mill bullying. These courts are showing a willingness to stretch the definition of harassment on the basis of membership in a protected class to encompass what appears to be on face “equal opportunity bullying” by applying a type of a disparate impact theory. The Ninth Circuit, for example, in Ellison v. Brady, set the stage for sex harassment claims based on facially gender neutral bullying practices where it noted that "Title VII is not a fault-based tort scheme. Title VII is aimed at the consequences or effects of an employment practice and not at the motivation of co-workers or employers."14
The Court applied this notion to facially neutral bullying in 2005 when it overturned a grant of summary judgment for the defendant in E.E.O.C. v. National Education Association, in which the bully engaged in emotional and verbal abuse, as well as physically intimidating behavior, towards both men and women. The Court held, however, that the E.E.O.C. can still make a case for gender based harassment by introducing evidence that the subjective effect of the bullying on women was different from the subjective effect of the bullying on men.15 Although the Court still couched the test in terms of disparate treatment, it showed a willingness to expand the scope of a disparate treatment harassment claim by allowing it to be proved by evidence of disparate impact.
Judicial extension of harassment and discrimination standards is not the only available remedy. Focusing on the legal profession, several states have adopted standards for civility. In almost all cases these standards are aspirational. They recognize the tension between zealous advocacy and rudeness. Nonetheless, they call for “professional” behavior minimizing rudeness and abuse. More severe misconduct is within the province of the Courts’ contempt power.
Returning to workplaces in general, if workplace bullying causes tangible injury, employers already have an obligation to protect employees from this injury under OSHA’s general duty clause. Employees can also seek compensation for such injury through Workers Compensation.
Beyond the reaches of current law, there clearly are layers of misconduct and bad behavior, some of which is described as workplace bullying. Knowing that humans are complex, and that behaviors and emotions are often accompanied by opposite behaviors and emotions, several questions arise:
The anti-bully legislation struggles with the fundamental problem that rude behavior is hard to define and the impact varies widely. For some a demeaning scream might lead to a heart attack, while for others it is just another form of workplace noise. Should large damage awards turn on the sensitivities of the particular jury empanelled and the eggshell of the plaintiff?
The subjective nature of bullying can lead to extremely inconsistent outcomes in litigation. Some victims of genuinely appalling bullying may not receive the proper compensation because they draw a jury made up of those skeptics who ask Robert Sutton whether a workplace “asshole” may be “worth the trouble” if he achieves the success of Steve Jobs.16 The greater risk, however, is that a jury will drain the legislation of any uniform definition that should result in uniform liability verdicts. How many of us can actually picture a scenario where any number of juries can consistently agree, by a preponderance of evidence, that a supervisor who has raised his voice to an employee is “bullying” the employee, as opposed to trying to address the legitimate concern that the employee’s daily tardiness is costing the company thousands of dollars? And how many of us can say with any level of certainty that most juries, although troubled by accounts of misbehavior, will still give the necessary weight to the requirement that the behavior be “malicious”? It is hard to maintain an objective standard when the subject of legislating behavior is so broad and so intrinsically tied up with the emotional response of the victim.
The Courts Can't Help
The bottom line is that courts are not the appropriate authority to regulate workplace manners. Society appropriately enters the workplace to protect deeply-held values, such as anti-discrimination. These are prohibitions similar to a red light at an intersection. Society has such a vested interest that it commands compliance and is prepared to use the legal system for enforcement. Engaging in a “red zone” practice is unlawful and sanctions should be expected.
By contrast, certain rule enforcing conduct in the workplace is clearly lawful. From attendance policies to evaluation systems, employers are given a legal “green zone” to engage in a vast number of activities designed to carry out their mission. Some of the requirements and standards may be very liberal or extremely conservative, but no one seriously questions their legality under our Constitution and legal system.
What remains is the “yellow zone.” They are workplace behaviors that fall between what is clearly prohibited by society (violative of a core value) and what is clearly permissible and tolerated by society. The yellow zone contains many negative behaviors unwanted by a responsible employer, but not so severe or pervasive that they are unlawful. Normally the yellow zone is defined and enforced by personnel policies and procedures. Each employer is given room to define this zone and select the best way to build a culture supportive of the organization’s mission. Employer discipline can vary from a verbal reprimand to discharge. This is critical to building mutual respect, which in turn translates into less turnover, greater job satisfaction, and higher productivity. This is true even for the legal profession. And while society as a whole also values mutual respect, it is composed of so many elements and case by case situations that it lacks a sufficiently uniform definition to institute it through legislation.
What's The Best Solution?
If passing yet another law is not the answer, how can the workplace respond? The best solution has three components. First, some of the worst forms of bullying are within the reach of current law. If a protected category is compromised, anti-discrimination statutes can apply. If the bullying threatens violence, many civil and criminal sanctions are available, as well as a mandate under OSHA to maintain a safe workplace.
A second answer comes from workplace policies and standards that prohibit workplace bullying. They are similar to Civility standards that many bar associations have adopted as guidelines for appropriate conduct in the profession. Workplace or law firm polices on proper conduct is a quintessential example of the “yellow zone” where behavior is prohibited in the workplace, regardless of whether it is also illegal (or in the “red zone”). This allows employers to match its standards to the circumstances of the individual workplace. An abusive equal opportunity supervisor is terminated by some employers, while others try rehabilitation. In some work environments occasional swear words and rough conduct are almost an occupational requirement (oil drilling and the Marine Corp), while in other workplaces such conduct would be completely unacceptable. Tailored policies and enforcement matching the organization’s values and objectives are entirely possible in the “yellow zone,” whereas such individual differences are condemned in the “red zone.” Additionally, minor abuses that would almost certainly not be covered by legislation can be targeted by policy. This has the advantage of warning an employee or manager of their misconduct before it escalates and helps build a culture supporting a work environment without jerks.
A third component is the workplace culture or values that can define acceptable behavior. In many ways “culture” has more impact than laws or written policies in governing behavior. Bullying succeeds when it accomplishes the objectives of the bullies. When such conduct is not rewarded and bullies become socially isolated, great pressures build to curtail such conduct. Business schools have struggled with models of behavior and leadership most likely to maximize productivity. Trust, mutual respect, and teamwork are common themes, but there is not a mathematical formula with precise answers. Employers need to be allowed to experiment with various approaches and to use market forces (turnover, productivity, and profits) to determine the winners.
At Littler, we have a highly regarded jury trial litigator who is exceptionally demanding and critical of the first briefs written by new associates. She underscores minor mistakes and is stingy with compliments. During the first six months to a year, associates working with this partner struggle; many seek to work with other partners. Under some definitions this partner is a classic “bully.” However, associates who work with this partner make fewer errors and produce remarkable results for clients. Those who “endure” this early experience gradually find themselves in high demand. As senior associates, they find themselves having the highest regard for their early mentor and receiving from her the “respect” that they have earned.
Clearly senior attorneys in corporations, law firms, and government have as many different management styles as exist in business. Not all of us would welcome, or be comfortable with the practices of our partner, but no one would seriously question her right to engage in such behavior nor the results she accomplished.
This returns us to the Littler “rainmaker” alleged to be a “bully.” Clearly there is a type of abusive treatment that exceeds the standards of our firm. Yelling at staff for no reason, blaming associates for perceived errors in such a demeaning manner that their self-confidence is lost and turnover is out of control, are examples of conduct that destroys teamwork and office morale. When this conduct persists, any responsible law firm should be able to make a judgment that the future would be better served by ending the relationship.
Even though our firm would not sanction the above “rainmaker,” we do accept and value an individual teaching style that is very demanding of new associates. This is accomplished in part by applying law firm policies, but primarily this is an example of enforcement of a law firm culture protecting values established and practiced for years. Legislation, damages and injunctive relief seeking to regulate this type of conduct would struggle with definitions and involving community mandates in an area of culture and behavior clearly within the “yellow zone.” Once the challenge of a definition was overcome, the remedy would be too severe or the sanctions would not be used because they do not apply. Behavior that does not reach the level of unlawful harassment or discrimination based on a protected category (such as race, age, sex, religion, etc.), is intended to be regulated by employer-supported standards or guidelines for professional conduct. Creating a category of unlawful “bullying” would open vast numbers of disciplinary actions to judicial review.
1. The Workplace Bullying Institute's Definition of the Phenomenon.
3. David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 Employee Rights. & Employment Policy Journal 475, 518 (2004).
5. Id. at 519.
6. U.S. Workplace Bullying Survey (September 2007) at 4.
8. Id at 15.
9. Id at 9.
10. Robert I. Sutton, The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t 36 (2007).
11. Shirking Working: The War on Hooky, BusinessWeek Magazine, Nov. 12, 2007.
12. State-by-State Legislative History of the Anti-Bullying Healthy Workplace Bill (June 25, 2007), available at Bully Busters.
13. 2006 S.C.R. NO. 106.
14. Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991).
15. EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005).
16. Sutton at 157.
Garry Mathiason is vice chair of Littler Mendelson, the nation’s largest employment and labor law firm. Identified by the National Law Journal on its list of the 100 most influential attorneys in the nation, he is widely recognized as a leading authority on employment trends. He has appeared on BBC, NHK in Japan, NBC National News, CNN, NPR, and ABC. Mr. Mathiason has authored and/or edited 22 employment law books and written over 50 published articles on workplace issues. He has been quoted on employment topics in The Wall Street Journal, Business Week, Fortune, Newsweek, and Time. Mr. Mathiason is Chair of the Open Compliance and Ethics Group’s Employment and Labor Law Domain, writing legal requirements and guidelines for business. He is listed in the 2007 Edition of The Best Lawyers in America. Contact: firstname.lastname@example.org
Olga Savage is an associate in the San Francisco office of Littler Mendelson. Ms. Savage advises and represents employers in a broad range of employment law matters arising under state and federal law. Prior to joining Littler, Ms. Savage earned her Bachelor’s Degree in Philosophy and English from Santa Clara University in 2004 and her Juris Doctorate from Stanford Law School in 2007. Contact: email@example.com