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.