Jeffrey Adelson | Risk Report

How do employees navigate the treacherous landscape of what they perceive to be a hostile work environment? Do the employees conduct self-assessments to determine if they are particularly, perhaps overly, sensitive to remarks or actions of a superior? Do the employees immediately make a beeline for the human resources department to seek counsel for what they deem to be unacceptable behavior? Do they quit their respective jobs? Do they endure the harassment until they find another job?
None of the above provides an ideal remedy, and each has associated hazards. Reporting the behavior can potentially create an even more hostile environment before a remedy is implemented, leaving the employee to feel further alienated.

This immutable fact remains: hostility and bullying in the workplace are devastating and yet age-old traditions. A Monster.com survey from October 2019 found that approximately 94 percent of 2,081 employees surveyed had reported workplace bullying. Of those, over half reported they were bullied by a boss or manager.

Bullying behavior was categorized, in part,as bullying through emails (23.3 percent), coworker gossip (20.2 percent), or someone yelling (17.8 percent).

Some of this behavior has been addressed, to some extent, for protected classes (e.g., women, people of color, or members of the LGBTQ+ community). Those who do not fall within such a protected class are arguably currently more vulnerable to the behavior. If only members of a protected class are able to pursue legal redress for such behavior, then those who do not fall within such a class, or who cannot prove that such behavior is directed only at such a protected class, are possibly thwarted in their efforts for appropriate redress based on a perverse defense that “the behavior is doled out to all employees, not just to members of a protected class.” As a result of this defense, it is possible that certain behavior would not be actionable.

This article primarily addresses workplace bullying that cannot be remedied by an assertion of race, age, gender, or sexual orientation bias but is rather a behavior that impacts the entire workplace and affects all employees regardless of these classifications.

The Current View of and Remedies for Potentially Bullying Behavior

This issue has recently become one of greater relevance given the current administration’s stance on workplace disrespect. President Joe Biden’s White House has made a pronouncement that any workplace behavior deemed disrespectful will be met by immediate termination. It has acted on this promise at least once. Specifically, and as proof of its zero-tolerance policy, “T.J. Ducklo, a deputy White House press secretary, resigned [in February 2021] after reports that he had used abusive and sexist language with a female reporter working on an article about his romantic relationship with a journalist from another publication.”1

But would the above response be as prompt and uncompromising were the employee not working at the White House but rather at a midsize consulting company? Let’s assume the employee used foul, possibly abusive language (e.g., “What you did was idiotic!”) with a subordinate or coworker, and such language is related to work performed by the subordinate or coworker. Or let’s assume the manager read a draft of a document created by the subordinate and then grabbed the draft, balled it up, cursed, and threw it on the floor? Assume further that the manager or coworker is of the same sex and race as the subordinate or coworker? Actionable?

Unlikely if the incident is isolated. What if, on the other hand, that manager or coworker did the above or engaged in similar behavior every day for a month. Actionable? Possibly. Thus, bad behavior may have to be sorted out, as an initial matter, in the following ways.

• The bad behavior is not extraordinary or unexpected and is, in fact, part of a usual pattern of bad behavior for this employee.

The “I had a really bad day, which justifies my behavior” excuse may provide cover part of the time but not all of the time. The one US jurisdiction that has enacted anti-bullying legislation (Puerto Rico, August 7, 2020) requires an analysis of the totality of the circumstances and considers the frequency of the behavior. 2 Any analysis includes a review of behavior frequency as well as an analysis of the specific target(s). That said, some behavior will be deemed so egregious that, even done only once and by an otherwise “nice” guy, it will be cause for termination.

1 | Michael D. Shear, “White House Press Aide Resigns over Call to Reporter,” New York Times, February 13, 2021.

2 | While statutory solutions may not yet be the norm, there is no doubt that attorneys will continue to pursue remedies for their bullied clients using other tools.

Determining When Objectionable Behaviors Are Actionable

How are behaviors further categorized as actionable or nonactionable? What behavior will be categorized as acceptable and aberrational for that person and not so horrific as to be intolerable even once? Certainly, anything deemed criminal can create the bright-line sought. If a manager steals, assaults, or worse, the termination will be wholly defensible. But those bright-line cases are much less frequent than the other murkier ones.

For example, a boss who curses at an employee could be viewed as crude or could be viewed as someone who is creating a toxic work environment. This could depend on the frequency of the behavior but also on the words used and possibly the targets of the usage. Workplaces should, and often will, create handbooks that lay out what is acceptable behavior and what is not. But even with these handbooks, toxic behaviors become difficult to address when the organization is small and when the owner/CEO of the organization is the one most likely to breach the rules. Who in that organization has the will to address the bullying behavior if such is said to have occurred? If the CEO of a small organization is prone to toxic behavior, the remedy will mostly be through attrition, which is really no remedy at all.

In sum, the current view of objectionable behavior, the circumstances of those behaviors, and the person responsible for those behaviors can all impact the response. But so too can the size of the organization and the extent to which an aggrieved employee can enjoy some sense of anonymity, at least at the beginning of the process. This leads to the inescapable question: should there be bright-line rules, or are such rules simply creating another set of problems?

In the best of all possible worlds, behavior that requires an analysis as to whether it should be categorized as bullying at all—and actionable—would not exist. But, as we know that it does, the best course of action is one that is swift and clear. If actionable, the behavior must be corrected through training, termination, and/or removal of the employee to a safer space, assuming this is reasonable and acceptable to the employee.
As mentioned, only Puerto Rico has enacted anti-bullying legislation, and its language, codified in House Bill 306, requires “malicious, unwanted, repetitive, and abusive” behavior. Under the law, employers were required to implement rules and policies to eliminate workplace bullying by February 3, 2021. If the employee has concerns about such behavior, the aggrieved employee must first turn to his internal complaint protocols. If unsuccessful, the employee may then proceed to the Bureau of Alternate Dispute Resolution, and then, and only then (if both of these routes have failed), may the employee avail themself of the Court of First Instance. It is still too early to know what remedies will be offered. 3

3 | Workplace bullying laws are not internationally ubiquitous but do exist. Sweden has been at the forefront of this issue, creating mores stringent laws in 2015 requiring employers to “prevent psychological health problems, including depression as a result of a difficult and bullying environment.” (Kerstin Ahlberg, “New Regulations Improve Swedish Workers’ Protection Against Bullying,” Nordic Labour Journal, November 24, 2015.) In Ireland, there is a new (2020) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work. This code reinforces the employer’s obligation to address workplace bullying but also recognizes that workplace bullying can come from external sources, such as customers. (“New Workplace Bullying Code of Practice in Force in Ireland,” Out-Law News, Pinsent Masons.com, January 18, 2021.)

Workplace Bullying and Workers Compensation Claims

To what extent does an entity face the possibility of litigation, even in the absence of a specific state anti-bullying statute, over an employee’s assertion that the employee is out of work because of a medical condition created by workplace bullying? To some extent, this may be a function of the state in which the claim is asserted (more claimant-friendly jurisdictions like New York or California are more apt to be receptive to allegations of this sort) and the credibility of the assertion.

For example, an employee with a history of heart problems, including hypertension, is out of work because of a heart attack. The employee asserts that the heart attack is a direct result of aggressive behaviors by their boss, including swearing, threatening, and calls made at all hours of the night and on weekends. The bullying behavior is all confirmed and is deemed egregious. Compensable?

The employer is forced, in a legal setting, to accept their employees as they are. In other words, if an employee has a weak heart and reports to a manager infamous for bullying behavior and that employee indisputably has a heart attack because of the manager’s behaviors, that employer will not be able to successfully refute the legitimacy of the claim by asserting a claim of a weakened and compromised employee. If there is proof of a nexus between the behavior and the illness (and it is no easy feat to establish this nexus), the claimant will be entitled to workers compensation benefits. That said, the underlying medical conditions will controvert the assertion that the medical emergency was work-related, thus making the workers compensation claim less likely to succeed.

One possible remedy exists against the manager for going after a member of a protected class (female employee tormented by a male manager). However, one hurdle might be the defense that the manager yelled not only at a member of a protected class (the female employee) but also at other males who were not protected, thus potentially allowing for the defense of “he’s a horror to everyone not just to women.” But, at the end of the day, is this compensable as a work-related incident? Possibly, but unlikely. It is possible that the employer could argue that the employee has had prior issues with managerial oversight. It is also possible the employer could assert previous instability on the part of the employee, should such evidence exist. It is also possible that the employer could argue that this manager has a tough managerial style and nobody else has ever complained, which could again result in this incident not being accepted as work-related.

Bottom line: an employer who is aware of a manager with a reputation for bullying continues to employ that manager at his peril. Certainly, the employer could weigh the matter and ultimately decide that the probability that any employee will successfully be able to assert causation between a work-related health issue and that manager is slim. However, this should not be the course the employer should be following. Instead, the employer should address the bullying behavior head-on by either requiring that manager to enroll in a program addressing these behaviors or by terminating that manager. The course of action selected will be, in part, determined by the level of inappropriate behavior displayed.

Training and Workplace Bullying Prevention

“Management training is considered one of the key measures in counteracting bullying and sexual harassment at work.”4

This study determined that awareness of the issue was key for managers and employees and further recognized that bullying at work can be a direct result of issues related to the “psychosocial” work environment. It is undoubtedly true that creating awareness, providing a structure to ensure awareness, and developing programs to discuss the issue can have a positive impact. The extent of this impact is not yet entirely known but is being studied. 5

In the United States, there are numerous online courses addressing workplace bullying that include issues as diverse as the psychological causes of workplace bullying to the impact the bullying has on company culture and success.

Depending on what study you read, the pervasiveness of workplace bullying can be enormous, and its impact on specific industries can be devastating.6 By one estimate, 96 percent of American employees experience workplace bullying. It is further reported that workplace bullying can cost the employer 7 work hours each week.7

It is estimated that, of those bullied, several breakdowns have been noted. Bullying impacts both men and women, and that, while more women than men may be bullied, the empirical data is actually more complex. Specifically, “relationships between gender and bullying are complex and largely shaped by social power afforded to different groups of men and women and by gendered expectations of appropriate behavior.”8

Various training courses focusing on workplace bullying address different types of workplace bullying, some of which can, at first blush, appear relatively benign. For example, everyone would agree that a manager who was physically abusive would be subject to a valid claim of workplace bullying and, most likely, police intervention. On the other hand, the manager who bullies using more subtle techniques should also be subject to penalties, albeit not ones where the criminal justice system must intervene.

For example, consider the above behaviors and categorizations that training might address.

Any of the situations shown in the table might be actionable, but all, with the exception of the physical assault, have clear defenses. For example, assume the manager regularly curses but does so at nobody in particular. Perhaps the manager curses if something falls on their toes, or the copier breaks, or the Zoom meeting fails to work properly. Actionable? Probably not.

But let us now further assume that this manager has a direct report who has explained to the manager that she does not approve of cursing, that her adherence to certain religious edicts makes the use of such words strictly forbidden, and further, she is very uncomfortable when anyone around her uses such language. Now, is that behavior going to be viewed as bullying? Possibly it will. Further, if the manager uses the words in a targeted way and curses at someone, not just generally, and does so regularly, this can certainly rise to the level of bullying behavior.

The significance of any of this is that a manager may not view the behavior as aggressive nor recognize that it is actionable. Ensuring that managers understand that overt and less obvious forms of aggression can both be deemed bullying behaviors and can result in discipline or termination is key to successfully addressing the behaviors and creating a more harmonious workplace for all.

All of the above can be included in training exercises presented to any workforce and, in particular, to any employee who has managerial responsibilities. Entities can also create easy-to-complete questionnaires distributed at regular intervals that might inform about problematic behaviors, especially among those with managerial responsibilities.

4 | Helge Hoel and Maarit Vartia, Bullying and Sexual Harassment at the Workplace, in Public Spaces, and in Political Life in the EU, European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, March 2018, p. 52.
5 | Hoel and Vartia.

6 |By way of example, a wide body of research has indicated that bullying for nurses has been a significant concern. (Marie Hutchinson, Margaret Vickers, Debra Jackson, and Lesley Wilkes, “Workplace Bullying in Nursing: Towards a More Critical Organizational Perspective,” Wiley Online Library, May 15, 2006.)
7 | Brandon Gaille, “25 Important Statistics of Bullying in the Workplace,” BrandonGaile Small Business and Marketing Advice, May 24, 2017.

8 | Denise Salin, “Workplace Bullying and Gender: An Overview of Empirical Findings,” Dignity and Inclusion at Work, Springer Link, January 5, 2021.

So, for example, consider this set of questions.

Link between Workplace Bullying and Reduced Productivity

No matter how objectionable behavior is ultimately categorized—bullying but not actionable or bullying and actionable—the behavior will have a deleterious impact on workplace contentment. It is a negative driver that can impact turnover, recruitment costs and efforts, training costs and efforts, and basic workplace contentment. It should be reviewed, assessed, and tackled by a risk manager in the same way as any business risk would. Failure to evaluate this piece of the business is highly problematic and will create a less productive and more toxic environment resulting in a “failure to thrive” environment over time.

Studies have indicated that productivity is reduced with an increase in reported incidents of workplace bullying. Specifically, a 2020 UK study showed that “workplace bullying has been a factor in the loss of over 18.9 million working days each year.” 9

The negative impact of workplace bullying was evidenced in several ways.

• Absenteeism. Loss of income for employee and loss of revenue for employers.
• Associated legal fees for defending these claims. Such costs can be exorbitant.
• Medical. The psychological impact of bullying on an employee can be long-term.
• Turnover. Workplace bullying can result in a revolving door of employees.10
• One fact appears clear, people who work in toxic environments are less likely to diligently work because they are disincentivized to do so. Other questions remain.
• Do employees working in toxic environments take more sick days?
• Is it the case that toxic work environments share a common problem of not creating systems and protocols, which encourages efficiencies and discourages workplace contentment?
• Do environments suffering from bullying also suffer from ineffective management and system implementation, and is it possible that these issues go hand-in-hand?
• Is there any reason to believe that were the bullies better equipped to perform their jobs, the number of targets would be reduced?
• Is bullying borne more frequently from dissatisfaction at home rather than from dissatisfaction at work?

9 | Janet Fowler, “Financial Impacts of Workplace Bullying,” Investopedia, May 1, 2021.

10 | Fowler.

No doubt, periods of high stress, whether in the workplace or at home, increase reported incidents of workplace bullying. One would thus expect that 2020 would have a higher incidence of reported bullying than was the case in the 5 previous years, although the fact that a high percentage of the workforce was able to work remotely might have reduced the incidences if not the percentages.

On the other hand, cyber bullying can take its toll, and there is reason to believe that such behavior saw an uptick in 2020. “Early anecdotal evidence in the financial services industry—which has all too often silenced victims of harassment—does not paint a pretty picture. SteelEye, which makes surveillance tools for securities trading and communications in banking, told [Bloomberg] its clients have witnessed a notable increase in potential impropriety amid a surge in activity and heightened stress in financial markets. While the alerts mostly flag potential insider-trading and market abuse, offensive or hostile language that points to bullying and harassment has shown up too, according to SteelEye’s Chief Executive Officer Matt Smith.”11

If it were true that in certain sectors remotely working could have the impact of reducing workplace bullying, this would certainly be a factor that should be weighed when considering the cost/benefit analysis of remote work. This would certainly not be the only factor, but it would appear to be one important factor. This would be especially true if there was clear evidence of an inverse relationship between bullying and productivity.

It can be further assumed that an increase in workplace bullying also adds to medical issues, including increased heart problems, and thus lost workdays. It is also well understood that workplace bullying can lead to psychological stress and lost days from work. But, because psychological issues can lead to medical ones, it can be assumed that sustained workplace bullying could create other employer issues, including increased overall medical costs.

Recent research suggests that [a] … dual diagnosis of a [physical health condition on top of a mental health condition] is more than just an unfortunate coincidence. Scientists are learning that seemingly unrelated psychological and physical issues may actually be closely connected.

Amanda MacMillan, “Why Mental Illness Can Fuel Physical Disease,” Time, February 23, 2017.
Employers can thus expect that workplace bullying could result in reduced productivity not only for emotional reasons (e.g., workplace bullying leads to workplace apathy, which, in turn, leads to a reduction in productivity) but also because of lost days from illness or required medical treatment.

11 | Elisa Martinuzzi, “As Work Has Moved Home, So Has Harassment,” Bloomberg, June 17, 2020.

Conclusion

The impact of workplace bullying is broad and destructive. To the extent that employers can educate their workforce about what constitutes workplace bullying and the negative impact of such behavior, we will all benefit enormously.

JEFFREY M. ADELSON
General Counsel and Comanaging Partner
Adelson McLean, APC
AdelsonMcLean.com

Jeffrey Adelson is the firm’s general counsel and comanaging partner. He has practiced in the field of workers compensation for almost 40 years. In addition, Mr. Adelson’s legal career includes experience in the areas of civil, family, and criminal law.

Mr. Adelson obtained his bachelor of arts from California State University and his law degree from Western State

University College of Law. He has also completed numerous courses in advanced legal education at the University of Southern California Law Center, as well as multiple courses in human anatomy, orthopedic medicine, and psychiatric medicine.

He has served as a judge pro tem and also as a workers compensation instructor at several colleges in Southern California. Mr. Adelson has been the recipient of several honors. He received the prestigious designation of Certified Litigation Management Professional (CLMP) from the CLM’s Litigation Management Institute. He was nominated and accepted as a member of The Society of Fellows of the Orange County Bar Foundation. In 2014, he was named as one of California’s Top Lawyers by The Legal Network for “exhibiting the highest in ethical standards and professional excellence.” Who’s Who named Mr. Adelson as a Top Attorney of North America in their 2017 publication.

In 2013, Mr. Adelson was admitted to practice before the US Supreme Court. In addition to California, he is a member of the state bars in both Iowa and Washington, DC.

He can be reached at JAdelson@AdelsonMcLean.com.