Author: Sahara Pynes, HR Solutions Group/Training Mavens

This Supervisor Briefing examines the law and best practices regarding bullying and harassment in the workplace, as follows:

  1. Recognizing Bullying
  2. Recognizing Harassment
  3. Prevention Techniques
  4. Conducting Investigations
  5. Employer Liability
  6. Test Yourself

Recognizing Bullying

Bullying occurs when a person uses strength or influence to intimidate another, typically to force a desired act or result. Workplace bullying is similar to schoolyard bullying, but must be handled within the confines the workplace. Bullying has no specific standard legal definition, nor is there specific federal legislation in the United States that prohibits workplace bullying. However, nearly half the states have introduced legislation called the "Healthy Workplace Bill," which would prohibit bullying, although such a bill has yet to become law in any state.

Although bullying itself is not addressed by law, some types of behavior in the workplace (by supervisors or non-supervisors) could subject an employer to liability under other existing legal theories. The supervisor should become aware of these types of behavior.

Bullying at work takes the form of actions that are:

  • Threatening, aggressive or intimidating;
  • Abusive, insulting or offensive;
  • Cruel or vindictive; or
  • Humiliating, degrading or demeaning.

It is generally accepted that such behavior must have malicious intent and be repeated.

Did you know?

The majority of reported bullying cases are perpetrated by supervisors and managers who abuse their power.

Behaviors that may be construed as bullying include:

Peer-to-Peer Behaviors Supervisor-to-Subordinate Behaviors

Staring or glaring, in a manner that is intimidating and clearly shows hostility

Creating unrealistic or unachievable demands (workload, deadlines, duties) for an individual or singling an individual out

Discounting an individual's thoughts, ideas or feelings ("Oh, that's a stupid idea") in meetings

Falsely accusing an employee of errors not actually made

Stealing credit for work done by others

Declaring an employee insubordinate for failing to follow arbitrary requests

Invoking the silent treatment, blatantly ignoring a co-worker's views or comments, or purposely excluding a co-worker from work-related or social activities

Contributing to failure of an employee's project by not performing required tasks, such as sign-offs, taking calls, working with collaborators

Deliberately withholding vital work-related information or sabotaging a co-worker's contribution in order to cause embarrassment

Repeated unfair criticism or destructive and negative criticism that focuses on blame rather than future improvement

Personal insults, screaming or public humiliation

Personal insults, criticism, screaming or public humiliation

Spreading rumors or gossip or making false allegations about a co-worker in order to discredit him or her

Excessive or overbearing monitoring of a particular employee's work without good reason

Physical shoving or other incidents

Ordering a particular employee to work below his or her level of ability, or to perform mundane or demeaning tasks, without proper reason

Playing practical jokes on a co-worker (but only if repeated or with malicious intent)

Removing an employee's responsibility without consultation and legitimate business justification

Acting aggressively or with intimidation towards a co-worker, especially if done in front of others

Threatening an employee with a negative employment action - demotion, poor review or dismissal.

Recognizing Harassment

Although bullying may occur for an arbitrary reason or no reason at all, unlawful harassment occurs when the behavior is predicated on a protected characteristic.

Federal law protects the following characteristics:

  • Age
  • Disability
  • Genetic information
  • National origin
  • Pregnancy
  • Race/color
  • Religion
  • Gender and sex
  • Veteran or military status

Remember

State laws may protect additional traits. The supervisor should become familiar with local harassment laws.

Establishing a Harassment Claim

For a claim of unlawful harassment to be made:

  1. The employee must be a member of a statutorily protected class;
  2. The employee must be subjected to unwelcome verbal or physical conduct related to membership in that protected class;
  3. The unwelcome conduct must be based on the employee's membership in that protected class; and
  4. The unwelcome conduct either:
    1. Affected a term or condition of employment; and/or
    2. Had the purpose or effect of unreasonably interfering with work performance; and/or
    3. Created a hostile work environment (conduct that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile or abusive).

Did you know?

Intent of the harasser is not a factor in determining whether unlawful harassment occurred. Whether the work environment is subjectively and objectively hostile is relevant.

Accordingly, the same types of behavior that constitute bullying may also constitute unlawful harassment if the target is chosen based on a legally protected trait.

Remember

There is both a subjective and objective component in determining what constitutes harassment. A court will look at the totality of circumstances and whether a reasonable would view the work environment as hostile.

Employer Liability

Liability for Bullying

No federal or state law currently addresses workplace bullying that is not tied to an individual's membership in a protected class. Despite the lack of workplace bullying laws, however, a victim of workplace bullying may seek to sue the alleged wrongdoer and the employer for unlawful injury and may bring suit for various causes of action, including, but not limited to: negligent hiring, negligent retention, intentional infliction of emotional distress, assault, battery, defamation, intentional interference with business relationships, and workers' compensation claims.

Workplace bullying can also lead to the following:

  • A loss in employee productivity and employee morale;
  • Workplace violence and hostility;
  • Employee stress, leading to feelings of shame, humiliation, anxiety, depression and post traumatic stress disorder;
  • Turnover or use of sick days;
  • Lack of trust in supervisors, co-workers and the employer; and
  • Increased health care and workers' compensation costs;

However, it is important to note that the employer may not be held liable for every incident of bad behavior in the workplace. The employer and supervisor should be sure to consult their state law and keep abreast of any developments concerning liability for bullying.

Liability for Harassment

In general, the employer is subject to liability for harassment committed by both supervisors and non-supervisors, unless it can establish that it had no reason to know of the harassment or knew of the harassment and took reasonable measures to prevent and correct it.

Employer liability for harassment differs depending on whether the alleged wrongdoer is a supervisor or a non-supervisor, which could include a co-worker or a third-party.

Supervisory Harassment

If the harasser is a supervisor, it is far more likely that the employer will face liability for the supervisor's actions. To be considered a supervisor, an individual must have the power to take tangible employment actions. The reason for this liability is because the actions and knowledge of a supervisor are the responsibilities of the employer.

Tangible Employment Action

A tangible employment action occurs when a supervisor's harassing conduct results in a significant change in employment status. Tangible adverse employment actions may go well beyond termination, and can include:

  • Hiring;
  • Firing;
  • Failing to promote;
  • Reassignment with significantly different responsibilities;
  • Decision causing a significant change in benefits; or
  • Discipline;

Tangible employment actions usually:

  • Require an official actof the employer;
  • Are documented in employer records;
  • Are subject to review by higher level supervisors;
  • Require the formal approval of the employer; and/or
  • Use the employer's internal processes.

A tangible employment action is the type of action a supervisor normally is empowered to take, and its effect on the victim must be real.

Best Practice

All changes in employment status, such as a transfer, compensation cut, change in office location or job duties, should be well-documented. A supervisor's documentation should include the business rationale for the decision and whether the employee had any input or made a request for the change.

Did you know?

A supervisor can be individually liable for sexual harassment either for engaging in inappropriate behavior or for failing to take action once aware of potential harassment.

Non-Supervisory Harassment

When the harasser is a non-supervisor, the employer remains liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. Non-supervisors include lower level employees and third-parties, including:

  • Co-workers;
  • Customers;
  • Vendors; and
  • Independent contractors.

An employer is put on notice of an employee's harassment when the supervisor or other management employee becomes aware of prior instances of harassment of others by the same accused individual, even if the alleged victim never complained. Alternatively, someone other than the actual victim - such as a co-worker - may advise the employer that harassment is occurring. The supervisor needs to be proactive when he or she suspects harassment has occurred and take steps to remedy the situation.

Employer's Response to the Harassment

If a tangible employment action results from harassment, the employer must take immediate remedial action.

If no tangible employment action is involved, then the employer can avoid liability by establishing an affirmative defense, which is comprised of two elements:

  • That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • That the employee unreasonably failed to take advantage of any preventative and corrective opportunities provided by the employer.

Thus, the employer must prove the existence of a harassment policy with a complaint procedure, and that the employee unreasonably failed to use those procedures.

Prevention Techniques

The best way for an employer to prevent bullying and harassment in the workplace claims is to develop and implement a harassment policy as well as a workplace bullying policy with a well-publicized complaint procedure. The existence of a harassment policy and a workplace bullying policy are simple and effective ways to set expectations for workplace behavior. An employer can use an employee handbook to ensure all employees are aware of these policies and agree to abide by its terms.

Because the supervisor has an obligation to the employer to report any knowledge of harassment or bullying and take steps to remedy the harassment or bullying, he or she needs to know the contents of the policy and abide by it at all times and in making all employment decisions. Generally, a harassment policy and a workplace bullying policy will include:

  • Statement of zero tolerance
  • Description of conduct that constitutes harassment or bullying
  • Complaint procedure
  • Statement that the employer will investigate complaints thoroughly and promptly
  • Statement regarding the confidential nature of the investigation
  • No-retaliation statement
  • Disciplinary statement
  • Formal employee acknowledgement and consent
  • Statement of formal training

In addition to a harassment policy, an employer may choose to implement a horseplay and employee altercations policy to address workplace bullying and hostile interactions between co-workers. It is also important for the supervisor to undergo training in these policies and be sure that employees are trained in appropriate workplace behavior.

Most of all, the supervisor should foster open communication, inclusion and a respectful work environment in the department managed in order to prevent workplace bullying and harassment.

Remember

If an employee reports an incident of unlawful bullying or harassment, the supervisor must tell the employer, even if a supervisor does not think such action has occurred. The supervisor must not retaliate against the alleged victim.

Conducting Investigations

If a supervisor learns of potential bullying or harassment in the workplace, he or she should work with the employer to take prompt remedial action reasonably calculated to end the bullying or harassment. The employer must commence an investigation regardless if the complaint was received from the alleged victim, a witness, a supervisor, or even through word of mouth.

Tip

An effective investigation can provide grounds for minimizing employer liability through an affirmative defense.

The role a supervisor may play in an employer investigation will vary. Generally, an effective investigation may include:

  • Interim Measures. It may be necessary for an employer to take interim measures, such as a temporary transfer or a non-disciplinary leave of absence with pay, to avoid potential bullying or harassment during an investigation. Since any changes to an employee's work situation may be perceived as retaliatory, the employer should communicate that its actions will prevent continued misconduct before concluding an investigation.
  • Choosing a Proper Investigator. The employer must choose a neutral, objective, and properly trained investigator. The investigator must be a credible and effective witness, should litigation result. Therefore, it is not advisable for the supervisor to conduct the investigation since the employer needs to consider an unbiased investigator to ensure the integrity of the investigation if litigation might result.
  • Conducting Interviews. The employer must interview the complainant, the alleged wrongdoer, and any relevant witnesses. The interviewer should ask each person the who, what, why, when, how in an effort to piece together what happened. Frequently, complaints of bullying and harassment rest on a "he said, she said" story that creates difficulty in assessing credibility. If available, the interviewer should use witnesses to corroborate and clarify facts given by the complainant and the alleged wrongdoer.
  • Determining Credibility. Because there are frequently conflicting versions of relevant events, an employer must weigh each party's credibility. In assessing credibility, the investigator should consider whether the facts make sense; whether there is a motive to be untruthful; whether any facts can be corroborated by external evidence or witnesses. Supervisors of both the alleged wrongdoer and victim may be helpful in providing background information or other credibility-related assessments.
  • Reaching a Determination and Implementing Corrective Measures. At the conclusion of an investigation, an assessment of what factually occurred and corresponding disciplinary action against alleged wrongdoer may be necessary. Generally, the corrective action should reflect the severity of the conduct and may range from a reprimand to discharge. The employer does not need to provide the complainant information about the disciplinary measures taken against the alleged wrongdoer. This information should be treated as confidential, just like other disciplinary measures.
  • Effective Documentation. During an investigation, the employer should keep documentation of each step in the process, including determinations of credibility and the disciplinary outcome of the investigation.

Test Yourself

  1. Erica is preparing materials that her supervisor Steven has asked for in connection with an important presentation. The day of the presentation, Steven tells other co-workers that Erica was lazy and made numerous errors in researching the information. Erica complains to HR. What should Steven do?
    1. Nothing, because Steven fosters open communication with his employees.
    2. Talk to Erica directly about what happened.
    3. Remove Erica from further department projects.
    4. Put Erica on a performance improvement plan.
  2. After Dana returned from a medical leave of absence, her supervisor Jim demoted her to compensate for the extra work her co-workers covered while she was on leave. Does Dana have legal claim against the employer?
    1. No, because the Dana failed to complain in accordance with the employer's policies.
    2. Yes, because the Jim treated Dana adversely due to a protected trait.
    3. No, because the harassment only happened once.
    4. Yes, because the Dana never received a poor performance evaluation.
  3. Answers

    1. b. Steven should talk to Erica directly about what happened in a calm and productive manner. If Steven engages in c or d, it will be viewed as retaliation for having complained to HR. By speaking with Erica about her mistakes, Steven can provide constructive criticism to address the deficient performance. However, Steven should apologize for raising these issues in front of co-workers. If Steven is uncomfortable discussing the issue directly with Erica, Steven should seek assistance from employer or HR.
    2. b. If a supervisor treats an employee adversely due to a legally protected characteristic and the supervisor's behavior results in a tangible employment action, the employer will be strictly liable. In this case, Jim penalized Dana because of an implied disability by demoting her. Because Jim is a supervisor, the employer is responsible for the harassment. Consequently, the employer has no defense that Dana failed to complain. Similarly, because a tangible employment action resulted in the demotion, the fact that it happened only once is irrelevant.