While no one wants to be forced into a costly court battle, too many have no choice and passage of the bipartisan Civil Rights Tax Relief Act could make it easier for everyone involved in employment discrimination cases. [companion version] Continue reading
Here’s what Abby L. Ferber had to say in this excerpt of her Huffington Post article about the issue:
So why do women most often bully other women? Because they are rarely in positions of power over men. According to the article [NY Times, Backlash: Women Bullying Women at Work:
“After five decades of striving for equality, women make up more than 50 percent of management, professional and related occupations, says Catalyst, the nonprofit research group. And yet, its 2008 census found, only 15.7 percent of Fortune 500 officers and 15.2 percent of directors were women.”
In addition, women are more likely to work in careers and workplaces that are primarily populated by other women. Men, on the other hand, wield power in the workplace over both women and other men.
Instead of examining the larger dynamics of power at work here, the article focuses on women as a group, asking why they bully other women.
We are left with numerous problematic conclusions:
Women’s relationships with each other are problematic and women need to learn to better support each other.
Women are the problem themselves, and they are becoming too much like men as they move into positions of power.
Bullying itself is not a gendered phenomenon, men bully men and women bully women, so we are all affected by it.
Bullying by men is natural, and not in need of examination. We should expect that kind of behavior from men.
Looking at the exact same data, however, informed by an understanding of how the dynamics of gender and power operate, a very different story can be told.
The reality is that:
Bullying is about power, and people bully those they have power over.
Bullying increases when people feel their power threatened.
Our unequal gender system contributes to the problem of bullying because it reinforces the idea that some people should naturally have more power than others; that men are by nature more aggressive, and women should be more nurturing and supportive.
And bullying in the workplace contributes to economic inequality between men and women. As this study makes clear, bullying is a very serious problem, with real consequences: 40% of the time, the target ends up quitting her job (remember, most targets are women). So bullying is a tool to maintain inequality.
The way in which the story of the data is told by the New York Times ends up hiding the real problems and blaming the victims. If our analyses are not informed by research and analyses of gender and power dynamics, we end up contributing to the problem, rather than developing real solutions.
Soon legislators in several states will be reintroducing “abusive work environment” legislation that has carried over for another year, many of them copied verbatim from the arguably business friendly Healthy Workplace Bill template (HWB). For victims of bully bosses passage represents vindication and dreams of having their day in court. But, just how realistic is that dream?
It might help to look at the outcome of workers compensation claims for mental stress. John D. Kovac, a workers compensation attorney in New Jersey, points out in his article, Stress Claims As A Remedy For Workplace Bullying, that “…under workers’ compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy…”
If/when the HWB passes it has built into it this same requirement. In addition, the HWB will require victims to find a way over one more hurdle. Besides injury, victims will have to prove that their boss acted with malice and intentionally targeted them. Only then will victims be able to meet their bully in a courtroom.
How will courts determine issues about pre-existing conditions and individual sensitivity to stress? Below Kovac outlines the way workers comp decisions lean on these issues in NJ: (Additional information on filing NJ workers comp claims is included in the full article):
Three Necessary Elements of a Stress Claim
1. Proof of objectively stressful work conditions which the worker reacts to in a stressful manner.
In Goyden v. State Judiciary, 256 N.J. Super 438 (App. Div. (1991), aff’d. 128 N.J. 54 (1992), the Court found that there was a mere subjectively perceived conflict with a supervisor which did not rise to the level of a compensable psychiatric claim. Goyden alleged that he was subjected to vindictive management procedures, particularly a biased and defamatory work evaluation that resulted in major depressive disorder, which compelled him to retire. The court, however, found that the criticism was merited. Goyden also alleged he was stressed by uncontrollable backlog and staff shortages, but the court found that these were not the cause of his stress. The Court noted, though, that work conditions such as backlog and staff shortages are subject to objective verification and thus could form a basis for a stress claim. Id. at 456.
Williams v. Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). makes clear that an employee’s subjective reaction is not to be disregarded, though it cannot be the sole ingredient of the formula for compensation. Williams also teaches that objectively verifiable work conditions need not be outside of the ordinary work stresses: “The requirements of unusual strain or stress as a causative factor was rejected [. . . ] and we, as an intermediate court, cannot revive that approach.” Id. at 106. Thus Williams specifically rejected the Wisconsin rule, which requires proof that the psychiatric injury must result from “greater dimensions than the day-to-day mental stress and tensions which all employees must experience.” Id.
Walck v. Johns Manville, 56 NJ 522 (1970), involved a reaction to mental stress resulting in a heart attack. The petitioner feared he may lose his job, but this fear was unfounded. After the retirement of his long-time supervisor, the petitioner claimed, he became nervous, tense, and insecure about his work performance and about his ability to hold his job under his new supervisor. But the court found that his anxiety was purely subjective and based on an unfounded imaginary worry as opposed to a reasonable basis in fact. Therefore the court found that where the employee is a worrier who becomes unnecessarily nervous about losing his job and this worry results in a heart attack, it is not compensable.
In Williams v. Western Electric, supra, the petitioner alleged that his work on an assembly aggravated his underlying schizophrenia. However the court found that he had a purely subjective reaction to his job because of his schizophrenia: his diseased mind reacted to merely normal work demands. Therefore compensation benefits were denied.
2. Work conditions peculiar to the workplace (not just common to everyone). Fiore v. Consolidated Freightway, 140 N.J. 452, 468-470 (1994) illustrates “peculiar to the workplace”:
If an employee contracted pneumonia as a result of working in a freezer as a packer, the condition would be a compensable occupational disease because it would be due to a cause which is peculiar to the employment. If the same employee contracted pneumonia as a result of incidental exposure to a fellow employee with pneumonia, however, this might not be compensable because the condition may not be due to a condition characteristic or peculiar to the employment.
Goyden held that merited criticism by a supervisor is common to all occupations and is therefore not peculiar to any particular trade or occupation. Id. at 451. In Williams, the petitioner had preexisting schizophrenia and evidence indicated he was equally irritated by things and people on and off the job. The facts in psychiatric claims brought before the Division must be distinguished from Goyden and Williams.
Cairnes v. City of East Orange held that a layoff or unemployment is not a risk arising out of employment but rather out of the economy and economic forces. A layoff notice is a threat that confronts every worker[4] and is therefore not stress peculiar to the workplace.
3. Objective medical evidence showing that the work conditions were the material cause of the psychiatric disability. Professional analysis in psychiatric claims, as opposed to physical claims, depends upon “analysis of the subjective statement of the patient.” Saunderlin v. E.I. Dupont Company, 102 N.J. 402, 412 (1986). Though subjective evidence requires analysis beyond mere subjective statements and will not be present when the physician simply “parrots” the patient’s complaints, objective evidence of a physical manifestation is not required in psychiatric claims. Id. at 412, 416. The distinction between objective and subjective “is not between physical and mental (or body and mind) but between independent professional analysis and the bare statement of the patient.” Interposition of a professional judgment between a subjective statement and an award of disability does not involve exclusion of the subjective statement: any medical examination “must begin with the [patient’s] subjective statement.” In physical disability claims, medical analysis often goes beyond subjective statements by virtue of clinical and laboratory tests. But in psychiatric claims, diagnostic criteria include descriptions of states of mind “discoverable only through” the subjective statement. Id. at 412-414. Under Saunderlin, Reasoned analysis of the subjective statement of a psychiatric patient is objective within the meaning of N.J.S.A. 34:15-36. Id. at 313-314. But where petitioners saw their psychiatrists only once upon recommendation of their attorneys and the psychiatric reports merely dressed the complaints in “psychiatric nomenclature,” the claims for psychiatric disability were dismissed. Id. at 418-419.
Specific Event versus Occupational Stress
In Prettyman v. State of New Jersey, 298 N.J. Super 580, 594 (App. Div. 1997), the court stated that Walck and Williams do not apply when an alleged psychiatric disability is caused by a specific event rather than a stressful work environment. Wrongly suspected of stealing from a coworker, petitioner was removed from work by the State Police and taken to a station for aggressive questioning. The court applied the “but for” test to determine that the petitioner’s injuries arose out of her employment: but for the fact that she came to be suspected of theft while carrying out her usual duties, she would not have been taken for questioning a few days later. Respondent’s contention, based on Cairns, that police investigations of theft are as normal to the workplace as layoff notices, was rejected along with the argument that the interrogation was a separate event that did not arise “during the course of employment.” Among other things, the court’s distinction in Prettyman between a specific event and a stressful environment suggests that a worker’s predisposition cannot be used to bar specific event claims. Hence the court noted that the “employer takes the employee as the employer finds the employee, with all of the pre-existing diseases and infirmiti[es].” Evidence of the petitioner’s emotional and excitable nature, precluded by the trial judge, was not deemed significant to respondent’s defense. Id. at 592-595.
Limits to psychiatric stress claims apply to fact-specific circumstances and, in some cases such as Cairns, are based on considerations of public policy. These limits, however, do not apply to psychiatric injuries arising from accidents or occupational diseases that have caused other injuries, such as, for example, a machinist depressed after losing an arm or a construction worker depressed due to occupational pulmonary disease. A psychiatric claim in these latter instances would be limited only by Saunderlin, supra, which requires reasoned, objective, professional psychiatric analysis of the patient’s state of mind.
Burden of Proof in Occupational Claims
In Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003), a firefighter with history of smoking cigarettes established that his exposure to smoke from fires contributed in a material way to his lung disease. Lindquist clarifies the standard applicable to all occupational claims in a way favorable to petitioners.
Standard of Proof: “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”
Bargain Theory: The Workers’ Compensation Act “involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries . . . ” At the ” heart of this ‘original bargain . . . . is the notion that the burden of proof on claimants would be easier . . . under workers’ compensation laws than under common law.”
As this standard applies to occupational claims in general, it would govern occupational stress claims and the related sub-category of occupational bullying claims.
3 Types of Workers’ Compensation Benefits
1. Medical Treatment (Controlled by the Employer). Employee cannot go to his own doctor without getting prior authorization from the carrier—risks personal responsibility for payment in some instances. But the employer’s right to control treatment may be lost if the treatment offered is ineffective or unreasonable. Benson v. Coca Cola, 115 N.J. Super 585 (Law. Div. 1971). See also N.J.S.A. 34: 15-15 providing that if the employer fails to provide treatment the employee may obtain it but the employee must request the treatment. A letter should be sent to the comp carrier or employer’s attorney demanding adequate treatment.
Cure and Relieve. N.J.S.A. 34:15-15 requires an employer to furnish treatment “necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the [worker’s] injured member or organ where such restoration is possible.” But Hanrahan v. Township of Sparta, 284 N.J. Super 427, 436 (App. Div. 1995), held that the phrase “cure and relieve” is not conjunctive: treatment must be provided as long as competent medical testimony establishes treatment is necessary to either cure the worker or relieve the worker of symptoms.
2. Temporary Disability Benefits (“TDB”). Paid weekly (for up to 400 weeks or 7.7 years) at 70% of average weekly wages up to a maximum in 2008 of $742 (SAWW 989.23 x .75). 34:15-12(b) and 34:15-38. Paid until the worker may resume her job or until MMI (is as far restored as the permanent character of the injuries will permit), whichever occurs first. Monaco v. Albert Maund, 17 N.J. Super. 425, 431 (App. Div. 1952).
Restricted Duty: Harbatuk v. S&S Furniture Systems Insulation, 211 N.J. Super 614, 628-629 (App. Div. 1986). If the employer provides full-time restricted employment within the worker’s capacity, temporary disability benefits may be stopped, but not if the employer fails to offer suitable work. Furthermore Harbatuk favorably described an Oregon decision supporting the principal that a worker need not seek easier work in a different field while under active treatment to cure a work-related medical condition.
Med-Temp Motions: Must be filed if a worker has no way of obtaining necessary medical treatment, if there is a dispute over restricted duty, or if the worker is in financial distress and has no other means of obtaining temporary disability benefits. The motion is given priority on the calendar.
Temporary Disability Benefits (TDB). A disabled P can get TDB for six months (at 66.6%) while waiting for resolution of Med-Temp. Motion (fill out Agreement to Repay form). The Department of Labor gets a lien on comp recovery that must be repaid if the comp case is successful.
3. Permanent Disability Benefits. Worker not eligible until 26 weeks (6 months) after MMI or after return to work—whichever is earlier. Must show by objective medical evidence that the worker suffered a loss of functional capacity to work. The award is not for pain and suffering though pain and suffering may be considered if it affects ability to function. Both sides must have permanency exams to resolve the case. Benefits may be for permanent partial total (the worker is not fully disabled) or permanent total (due to injury the worker is unemployable in a reasonable stable job market).
I found the article below while looking for information to post on our informational resource site about the Healthy Workplace Bill. It’s an interesting look at ways to turn tools already in place into powerful protections for targets of workplace bullying:
The Anti-Bullying Legislative Movement: Too Quick To Quash Common Law Remedies?
Sarah Morris, Bench & Bar, Vol. 65, No. 10 | November 2008 [Excerpt]
Common Law Remedies
The anti-bullying movement argues vehemently that existing law inadequately protects workers from status-neutral harassment. Discrimination laws limit harassment coverage to protected classes, leading to the phenomenon that the “equal opportunity harasser” has a pass under harassment law. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000) (foul language used in front of and to describe both sexes was not sex discrimination). Tort law’s barriers to nondiscriminatory bullying claims are nearly insurmountable, according to the movement.
However, some courts have effectively addressed status-neutral bullying under tort
theories. The Indiana Supreme Court recently affirmed a $325,000 assault award to an operating room technician who alleged that he reasonably feared imminent harm from a supervisor surgeon. Raess v. Doescher, 883 N.E.2d 790, 799 (Ind. 2008). The Texas Supreme Court affirmed an intentional-infliction-of-emotional-distress (IIED) award of $275,000 to three workers whose supervisor repeatedly shouted profanities at them, physically charged them, pounded his fists and threatened them with termination during a two-year period. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 613-14 (Tex. 1999). The 3rd Circuit Court of Appeals reversed a summary judgment on an IIED claim by an employee whose manager used a self-termed “root canal” in which he taunted, berated and demeaned her and asked for her resignation almost every time she was in the office. Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 115 (3d Cir. 1996). The Iowa Court of Appeals reversed an order granting JNOV on an IIED claim to supervisors who berated an employee with groundless accusations as to performance on nearly daily basis for four months and attempted to sabotage his work. Blong v. Snyder, 361 N.W.2d 312, 317 (Iowa Ct. App. 1984).
Minnesota courts have primarily addressed whether harassment creates tort liability in protected class contexts. However, in addressing tort claims in the protected class arena, Minnesota courts have skillfully negotiated the fine line between extreme and outrageous conduct and general workplace unpleasantness. For example, in Wenigar v. Johnson, 712 N.W.2d 190 (Minn. App. 2006), the Minnesota Court of Appeals affirmed the court’s finding that the disabled plaintiff’s employer was liable for intentional infliction of emotional distress based on evidence the employer shouted at plaintiff daily, refused to permit him to take breaks or vacation, told others he was stupid and retarded, and supplied him with housing that was uninhabitable. Cf. Leaon v. Washington County, 397 N.W.2d 867 (Minn. 1986) (stating in dicta that fact finder could decide plaintiff’s coworkers acted outrageously and intentionally when they forced him to have physical contact with nude dancer at stag party held by members of plaintiff’s department); Orth v. College of St. Catherine, 1995 WL 333875 (Minn. Ct. App. 1995) (unpublished) (reversing summary judgment on IIED claims based on supervisor’s sexual comments and throwing of objects at one plaintiff).
On the other hand, Minnesota courts have consistently rejected tort claims when the employer’s conduct is not egregious. In Schibursky v. Internat’l Bus. Machines Corp., 820 F.Supp. 1169, 1183-84 (D. Minn. 1993), the court held that workplace surveillance of plaintiff’s overtime hours and perceived verbal abuse regarding her failure to reduce her overtime did not represent extreme and outrageous conduct. Id. at 118-84. Similarly, the Minnesota Court of Appeals held that as a matter of law, plaintiff failed to raise a factual issue on an IIED claim based on his manager’s posting of meeting notes on a company bulletin board with the words “move-ups, brown nose, shit heads” next to his name, which the employer removed at plaintiff’s request. Lund v. Chicago & Northwestern Transp. Co., 467 N.W.2d 366, 370 (1991). The court reasoned that the conduct was vulgar, but not extreme and outrageous. Id. at 370. See also Hubbard v. United Press Internat’l, Inc., 330 N.W.2d 428, 439-40 (Minn. 1983) (holding employer’s discipline and criticism of plaintiff neither extreme nor outrageous). The careful IIED line-drawing by Minnesota judges in the protected class harassment context reflects that our courts will deal reasonably with tort claims based on status-blind harassment.
Some jurisdictions have deferred inappropriately to the employment-at-will doctrine when faced with tort claims arising from bullying. In one notorious case, a federal district court applying New York law granted summary judgment on an IIED action in which the plaintiff alleged her harassing boss pushed her into a file cabinet, because New York law required sexual battery as a prerequisite to tort liability for harassment. Ponticelli v. Zurich Am. Ins. Group, 16 F.Supp.2d 414, 440-41 (S.D.N.Y. 1998). Other courts have treated the plaintiff as particularly susceptible to emotional distress and dismissed the tort claim for lack of evidence the employer knew of the heightened vulnerability, even in cases with atrocious facts. See Hollomon v. Keadle, 931 S.W.2d 413, 416-17 (Ark. 1996) (employer’s alleged constant cursing of employee as “white nigger,” “slut,” and “whore” and implicit threats regarding mob connections and handgun; summary judgment proper based on lack of notice to employer of emotional susceptibility). See also Harris v. Jones, 380 A.2d 611, 616-17 (Md. Ct. App. 1977) (reversing IIED judgment for plaintiff; although supervisor repeatedly verbally and physically mimicked plaintiff’s stutter for five months; exacerbated anxiety did not reflect severe emotional distress).
Nonetheless, developing a legislative remedy may be neither realistic nor appropriate. Given the current economic backdrop, state legislatures are unlikely to add anti-bullying liability to employers’ regulatory burden. Further, the Model Act lacks sufficient specificity to effectively deter the challenged behavior. Unlike Title VII harassment theory, which relies on a causal link to an illegal motivation, the Model Act prohibits a more general type of conduct.15 Ambiguity that limits the statute’s usefulness to employers or courts may inspire nuisance litigation. One critic even contends that legislating against bullying could be ridiculed as an attempt to create a general workplace civility code, denigrating the respect accorded all employment laws.16
A better answer to the workplace bullying conundrum is to remove any inappropriate barriers in tort law. One commentator suggests that courts could use discrimination law’s well-known standard of severe and pervasive conduct to evaluate whether behavior is extreme and outrageous for purposes of IIED.17 Other modifications could include removing any requirement that IIED in the workplace be sex-based in order to be actionable. Eliminating the employee’s obligation to show the employer knew of his or her sensitivities and focusing on the severity of the harasser’s conduct also merits consideration. The common law can deal with this employment problem more successfully and with more flexibility than a statutory scheme.
Conclusion
U.S. anti-bullying activists are eager to bring American law into step with legislative remedies adopted in Europe and elsewhere. Although tort law has demonstrated flaws in addressing status-blind harassment, case law in Minnesota and elsewhere shows that it is not the slim reed described by legislative advocates. Modifying tort law to remove unreasonable barriers to redress of egregious conduct is a more practical and efficacious solution. Of course, if all employers embraced a “no jerk” rule, this social issue could be handled in the better forum: the workplace.
SARAH MORRISE is a partner at Lind, Jensen, Sullivan & Peterson, PA, where she practices in the areas of employment law and insurance coverage.
I believe that if we’re honest with ourselves we can learn some hard lessons from Freedom From Workplace Bullies Week – an event that has been around for at least 4 years. This year I decided to join in the effort and sponsor Take Action Screenings and offered free DVDs as part of our new initiative to use film to create change. I’m delighted that the videos were used by advocates in a dozen states – and Australia – in a wide variety of venues. But, I also recognize that this is a drop in the bucket for what needs to happen on a broader level. Freedom From Workplace Bullies Week has been in place nearly half a decade. And, while we applaud the efforts of others scattered around the country who worked hard to garner signed proclamations in 38 cities and one county, it’s important for us to heed this as a wake-up call. As near as I can tell there are some 30,000+ cities in the US. That’s not to denigrate any of the work others are doing – it’s merely meant to raise the bar. Ironically, workplace bullying was more prominently covered by the media in the months leading up to the event. So, the real question is: why hasn’t this effort really resonated beyond a small cadre of people into a true coalition? Is it time for a new approach? Here’s an article from WhenTheAbuserGoesToWork.com that asks just that. Patricia Barnes asks that we start to look in new directions. In keeping with our mission to foster open and frank discussion, you don’t have to agree with her or me but you do owe it to yourself to become part of the discussion. READ ON:
Labor Secretary Sleeping on the Job?
With America’s workplace anti-bully movement seemingly stuck in the
trenches, perhaps it is time to follow the example of America’s neighbor to the North.
The Canadian province of Quebec amended its Labour Standards Act in 2002 to ban non-discriminatory workplace harassment and bullying. The law, which went into effect on June 1, 2004, also imposes a duty on employers to prevent and stop bullying.
According to one observer, the law was the result of a sustained campaign by Quebec unions, as well as by a non-profit advocacy and resource group for non-unionized workers, “Au bas l’echelle” (in English, “Rank and File”).
This effort resulted in the establishment in 1999 by then Minister of Labor, Diane Lemieux, of an Interdepartmental Committee on Psychological Harassment at Work. The committee in 2001 recommended the government take legislative steps to prohibit psychological harassment.
It is time for unions and workplace anti-bully advocates to call upon U.S. Secretary of Labor Hilda L. Solis to empanel a commission to study the problem of workplace bulling in the United States and recommend new legislation to Congress.
There is overwhelming research that the problem of workplace bullying is epidemic in the United States, affecting at least one in four workers, and that workplace bullying destroys lives and costs American employers billions every year.
Efforts began in the United States almost a decade ago to pass a so-called Healthy Workplace Bill on a state-by-state basis. Thus far, no state has adopted the bill, which is much weaker than Quebec’s legislation.
Meanwhile, the worsening economy has left more and more workers vulnerable to bullying. Not only are there fewer jobs, but the nature of the workforce is changing. More workers today are categorized as “independent contractors” who receive no benefits and low pay. These include home-workers, tele-workers, piece-workers.
Even if one state does step up and adopt a workplace anti-bully bill, it will take decades, if ever, before all of the states do.
*** See Debra L. Parkes, “Targeting Workplace Harassment in Quebec: On Exporting a New Legislative Agenda” (2004) 8 Empl. Rts. & Employ. Pol’y J. 423.
OUR BULLY PULPIT 