TAMING THE WORKPLACE BULLY - SHRM PSHRM Presentation (2...Palmetto SHRM ANTI-BULLYING ORGANIZATIONS...

CHERIE BLACKBURN [email protected]

TAMING THE WORKPLACE BULLY

PALMETTO SOCIETY FOR HUMAN RESOURCE MANAGEMENT

MARCH 19, 2019

Palmetto SHRM www.nexsenpruet.com

OVERVIEW

‣ How to identify workplace bullying

‣ Laws that apply to workplace bullying

‣ How workplace bullying differs from Title VII harassment

‣ The impact of workplace bullying on the employer

‣ The role of HR in addressing, investigating and preventing workplace bullying

‣ Hypotheticals related to identifying and handling specific situations


DEFINITIONS OF ‘BULLYING’ VARYWBI DEFINITION

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“Workplace bullying is repeated mistreatment of an employee by one or

more employees; abusive conduct that is: threatening, humiliating, or intimidating,

work sabotage, or verbal abuse.”

Workplace Bullying Institute - June 2017 Workplace Bullying Survey


EXAMPLES OF BULLYING

‣ Aggression. Yelling or shouting at an employee; exhibiting anger or

aggression verbally or non-verbally (e.g. pounding a desk);

‣ Intrusion. Tampering with someone’s personal belongings; intruding on

someone by unnecessarily lurking around their desk; stalking, spying, or

pestering someone;

‣ Coercion. Aggressively forcing or persuading someone to say or do things

against their will or better judgment;

‣ Offensive communication. Communicating offensively by using profanity,

demeaning jokes, untrue rumors or gossip, or harassment;



‣ Belittling. Persistently disparaging someone or their opinions, ideas, work, or

personal circumstances in an undeserving manner;

‣ Embarrassment. Embarrassing, degrading, or humiliating an employee

publically in front of others;

‣ Revenge. Acting vindictive towards someone; seeking unfair revenge when a

mistake happens; retaliating against an employee;

‣ Threats. Threatening unwarranted punishment, discipline, termination, and/or

physical, emotional, or psychological abuse;



‣ Campaigning. Launching an overt or underhanded campaign to “oust” a

person out of their job or the organization;

‣ Blocking advancement or growth. Impeding an employee’s progression,

growth, and/or advancement in the organization unfairly;

‣ Punishment. Undeservedly punishing an employee with physical discipline,

psychologically through passive aggression, or emotionally through isolation.


CYBERBULLYING

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Electronic bullying or cyberbullying involves primarily verbal aggression

(e.g., threatening or harassing electronic communications)

and relational aggression (e.g., spreading rumors electronically).


ANTI-BULLYING ORGANIZATIONS

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‣ Easily identified in Internet searches

‣ Workplace Bullying Institute

‣ American Psychological Association Center for Organizational Excellence – resources

for employers

‣ Encourage broad definitions of bullying

‣ Address bullying based on their own (varying) definitions

‣ Purpose is to increase focus/awareness


BULLYING SURVEYWORKPLACE BULLYING INSTITUTE 2017 SURVEY

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• 61% of Americans are aware of abusive conduct in the workplace

• 60.4 million Americans are affected by it

• 70% of perpetrators are men; 60% of targets are women

• 61% of bullies are bosses

• 40% of bullied targets are believed to suffer adverse health effects

• 29% of targets remain silent about their experiences

• 71% of employer reactions are harmful to targets

• 60% of coworker reactions are harmful to targets

• To stop it, 65% of targets lose their original jobs

• 77% of Americans support enacting a new law


WBI SURVEY BULLYING BASED ON GENDER

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2017 WBI SURVEYBULLYING BASED ON RACE

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IMPACT OF WORKPLACE BULLYINGON EMPLOYEES

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‣ Psychological and Physical Health Problems

‣ Headaches

‣ Increased blood pressure

‣ Digestive problems, ulcers

‣ Depression

‣ Increased risk of heart disease

‣ Post-traumatic stress disorder

‣ Chronic fatigue


IMPACT OF WORKPLACE BULLYING

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‣ The target of the bullying will experience a loss of confidence and an increase

in stress that often shows up in health problems. Their performance will

decline. They may need more time off to recover. So you have lower

performance by at least one person, the target.

‣ Eventually the target may have no recourse but to leave. Research has shown

that the vast majority of targets eventually leave. You now have lost a good

employee and have all the costs of a new hire.


IMPACT OF WORKPLACE BULLYING

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‣ The employees witnessing the bullying will have reduced performance and

morale. They will have to choose to side with the bully, leave, risk retribution

by speaking out, or remain passive and try to stay under the bully’s radar.

They may lower their performance to be non-threatening to the bully.

‣ If a company allows bullying, the cycle will likely repeat itself.

‣ Productivity will be replaced with poor morale, low motivation to work, and

regular discussions among employees regarding the bullying that is occurring,

which results in high employee turnover rates, far less revenue per employee

and increased absences.


IMPACT OF WORKPLACE BULLYINGON EMPLOYERS

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‣ You are opening yourself up to potential litigation. While bullying is not, strictly

speaking, illegal it may be used as evidence of or associated with a claim of

harassment or discrimination under one of several federal laws.


FEDERAL LAW

‣There is no federal law that addresses workplace bullying, but

incidents of bullying overlap with federal discrimination, harassment

and retaliation law.

‣Title VII and other laws recognizing a hostile work environment claim

"prohibit only harassment that is discriminatory" and do not create "a

general civility code for the American workplace. Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) and

Marshall v. NYC Bd. Of Elections, 322 F. App’x 17, 19 (2d Cir. 2009)


TITLE VII HARASSMENT CASES

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‣ “Mere workplace bullying is not enough to give rise to an actionable hostile work

environment claim…there must be a showing the conduct occurred because

of…membership in a protected class.” De la Cruz v. NYC, 738 F. Supp. 2d 622

‣ Yanick v. Hanna Steel Corp., 653 F.3d 532 (2011) – court described black

coworker as a “workplace bully” – confrontational, rude, and disruptive. White

plaintiff was severely and permanently injured when coworker dropped a 940

pound steel coil on him and alleged this was because of his race.

‣ Vito v. Bausch & Lomb, Inc., 403 Fed. Appx. 593 (2010) – alleged conduct

included abusive language, gender-related jokes, occasional teasing, bullying,

inappropriate physical conduct.


TITLE VII HARASSMENT CASES

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‣ Walker v. Sullair Corp., 736 F. Supp. 94 (W.D.N.C. 1990) rev’d in part and aff’d in

part, 946 F.2d 888 (4th Cir. 1991) – alleged conduct included close monitoring of

plaintiff, including of personal phone calls, public reprimands for poor job

performance, and various other nonsexual harassment by a superior with whom

the plaintiff once had a consensual sexual relationship.

‣ Turley v. Union Carbide Corp., 618 F. Supp. 1438 (S.D. Va. 1985) – alleged

conduct included being picked on all the time and being treated differently from

male employees, harassment of a nonsexual nature. Court dismissed sexual

harassment theory; found facts to support sexual discrimination not harassment.


EMPLOYER DEFENSEEQUAL EMPLOYMENT OPPORTUNITY BULLY

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‣ If an employee is abusive to all other employees equally, that individual is not

abusive "because of" gender, race or other protected classes. As a result, the

employer cannot be said to have violated laws prohibiting discrimination

‣ When a harassment claim involving workplace bullying fails, most often it is

because the plaintiff has failed to demonstrate a nexus between the behavior

and the protected class status.

‣ US Court of Appeals for the Fifth Circuit affirmed summary judgment against the plaintiff

on a hostile work environment claim because although she demonstrated numerous

hostile acts by her co-workers, she did not show that the hostility was based on her

African-American race. Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt.,

498 F. App’x 448, 450 (5th Cir. 2012).


STATE LAW

‣ Some states have laws addressing bullying, but not SC

‣ SC State Law Tort Claims

‣ Assault and/or Battery

‣ Intentional infliction of emotional distress

‣ Workers’ compensation retaliation

‣ Intentional interference with contract/employment relationship

‣ Negligent retention


TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Prohibits discrimination and harassment toward an

applicant or employee because of such individual's…

Race

Sex

National Origin

Color

Religion


THE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

Prohibits discrimination and harassment

against applicants and employees

based upon age.


THE AMERICANS WITH DISABILITIES ACT (ADA)

‣ Prohibits discrimination against applicants and employees

based upon disability.

‣ The Act contains a very broad definition

of disability.


THE FAMILY AND MEDICAL LEAVE ACT (FMLA)

‣ Prohibits discrimination against employees

for exercising or attempting to exercise any

FMLA rights.

‣ Example: Projects are taken from employee

after FMLA leave unrelated to employee’s

ability to perform the work.


FEDERAL DISCRIMINATION LAWS PROHIBIT RETALIATION

It is unlawful to retaliate against an employee because he or

she has:

‣Complained about discrimination

‣Filed a charge of discrimination

‣Participated in an employment discrimination investigation

or lawsuit (example: witness)

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HARASSMENT - HOSTILE ENVIRONMENT

‣ The plaintiff must show that:

1) She belonged to a protected class;

2) She was subjected to unwelcome harassment;

3) The harassment was based upon her protected class;

4) The harassment was sufficiently severe or pervasive to create an hostile or

abusive working environment; and


5TH ELEMENT OF HOSTILE ENVIRONMENT CLAIM

5) The employer knew or should have known of the harassing conduct.

If the harasser is a supervisor of the employee, the company is automatically

liable where there is an adverse employment action – even if company was

not aware of conduct.


BULLYING AND TITLE VII

Bullying + Protected Class = Possible Violation of Federal or State Laws

• Race

• Gender

• National Origin

• Color

• Religion

• Disability

• Age

• Workers’ Compensation Claim

• Pregnancy

• FMLA Leave


“BULLYING” AND LIABILITYMICHAEL MERCIECA V. MICROSOFT CORPORATION

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‣ “Microsoft to Pay $2 Million in Workplace Bullying Case,”

‣ Jury awarded $11.6 million to Michael Mercieca

‣ Ended relationship with female co-worker who later became his boss. Working

conditions began to change; supervisor yells at him, convinces another employee to

complain about him, poor performance reviews.

‣ Mercieca complained to HR, but nothing changed.

‣ Alleged post-traumatic stress disorder


HYPOTHETICAL 1

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‣ Following a mid-year performance evaluation, an employee reports

to you that her supervisor is treating her unfairly. He makes fun of

her in front of other employees, makes her leave a note on her

desk when she’s away from it and excludes her from lunches

‣ You tell the employee you will speak with the supervisor. You do so

and the supervisor says he’s having some performance issues with

the employee and they are addressing it. He says he treats her like

all other employees.

‣ Do you do anything further?


HYPOTHETICAL 1ISSUES TO ADDRESS

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‣ Obtain examples – how is supervisor making fun of the employee?

‣ What other employees are present when this occurs?

‣ Does the supervisor make other employees leave a note on their desk when

away? What is the reason?

‣ Who goes to lunch? Personal lunch or business lunch? What percentage of

employees on team go to lunch with supervisor? How often?

‣ What are the performance issues? Have they been documented? How is the

supervisor working with the employee to correct them? Review mid-year

performance review.


HYPOTHETICAL 2

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‣ An employee has been back from medical leave for two weeks and reports to

you that his manager is ignoring him and not assigning him projects. He tells

you that employees on his team are treating him differently since he returned

‣ Could this be bullying? What should you do?


HYPOTHETICAL 3

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‣ Your company has a back of the house operation that is fairly hectic and fast-

paced. Employees regularly tell jokes, some off-color, and use profanity. No

one has complained.

‣ What are your concerns? What should you do?


HYPOTHETICAL 4

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‣ An employee reports to you that she is being teased by co-workers because

they believe she complained about their manager who is well liked. The co-

workers have said in front of her, “somebody had to run crying to HR” and

someone left a cartoon on her chair about a kid tattling on a friend.

‣ What do you need to know? What are your concerns?


HYPOTHETICAL 5

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‣ Three employees report to you that their manager is spying on them by

climbing on a chair and looking over a divider into the room in which they are

working. They also report that he is keeping them from leaving the department

by saying negative things to other managers about them. They report that he

has said they are lazy and don’t want to work.

‣ Does this amount to bullying? What should you do?


THE ROLE OF HUMAN RESOURCES

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‣ Provide training to employees – particularly managers

‣ Directly address bullying behavior as soon as it arises

‣ Create checks and balances to limit power of supervisors over subordinates

‣ Take employee complaints serious (even if not related to protected class)

‣ Take action to stop bullying

‣ Consider implementing a policy against bullying – code of conduct at minimum

‣ Promote good HR practices that will help prevent bullying


EMPLOYEE TRAINING

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‣ General training for employees

‣ Separate training for managers/supervisors

‣ Conduct training on an annual basis – the landscape is changing.

‣ Consider combining it with discrimination/harassment training. Live training is

better than computerized training (per EEOC recommendation).

‣ Include a review of your policies

‣ Have all employees sign off that they took part in the training.


CHECKS AND BALANCES

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‣ HR involvement in disciplinary actions

‣ Senior management and HR involvement in performance reviews

‣ Employee feedback and or peer reviews on supervisors

‣ Internal survey of employees

‣ Exit interviews


INVESTIGATIONSFOLLOW BEST PRACTICES

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‣ Consider need to suspend or move employees

‣ Interview complainant, alleged harasser, witnesses and others in the same work group

(potential witnesses)

‣ Document interviews and other aspects of investigation

‣ Review relevant documents, including policies

‣ Maintain confidentiality of investigation – to extent possible

‣ Reminder of no retaliation.

‣ Take corrective action

‣ Communicate to complainant/victim


SAMPLE LANGUAGE FOR POLICYANTI-BULLYING POLICY

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‣ The company considers workplace bullying unacceptable and will not tolerate

it under any circumstances.

‣ This policy shall apply to all employees, regardless of his or her employee

status (i.e. managerial vs. hourly, full-time vs. part-time). Any employee found

in violation of this policy will be disciplined, up to and including termination.

‣ The company defines bullying as persistent, malicious, unwelcome, severe

and pervasive mistreatment that harms, intimidates, offends, degrades or

humiliates an employee, whether verbal, physical or otherwise, at the place of

work and/or in the course of employment.


SAMPLE LANGUAGE FOR POLICY

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‣ Any employee who believes he or she has experienced or witnessed conduct

that violates this policy, or who has concerns about such matters, should

immediately report it to his or her manager, another manager or the Human

Resources Director.

‣ Any reports of this type will be treated seriously, investigated promptly and

impartially.

‣ The availability of this complaint procedure does not preclude employees who

believe they are being subjected to bullying conduct from promptly advising

the offender that his or her behavior is unwelcome and requesting that such

behavior immediately stop.


SAMPLE LANGUAGE FOR POLICY

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‣ The company further encourages all employees to formally report any

concerns of assault, battery, or other bullying behavior of a criminal nature to

local law enforcement.


FINAL THOUGHTS

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‣ Take every complaint seriously and act promptly

‣ Do not allow situations to continue or get out of hand

‣ Emphasize the need to for training and conduct it regularly

‣ Don’t allow personal assumptions or opinions to guide you

‣ “That manager has always been that way.”

‣ “This employee is always very dramatic.”

‣ Consider the worse case scenario

www.nexsenpruet.com

CHERIE [email protected]

205 KING STREET, SUITE 400, CHARLESTON, SC 29401

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TAMING THE WORKPLACE BULLY - SHRM PSHRM Presentation (2...Palmetto SHRM ANTI-BULLYING ORGANIZATIONS...

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