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Bullies Give Utah Workplaces Black Eye

By Rachel Otto

One week after the elementary school massacre in Newtown, Connecticut, I met with a potential new client who was at her wits’ end. She had been an elementary school teacher in Idaho for 24 years. Since being transferred to a new school 3 years ago, she had been experiencing near-daily pranks. Not pranks by her 3rd grade students, but at the hands of her colleagues – all female teachers in their 40s, 50s, and 60s. Each day, a group of teachers would enter her classroom after-hours and rearrange furniture, hide books, set the clock to a random time, adjust the height of her chair, to name a few. The targeted teacher had first taken the pranking as a joke. After a few months, she started asking around – who was doing this? Why? Her colleagues were wide-eyed and protested innocence. After a few more months, she asked the principal for help, causing the treatment to escalate. After 3 years of this, she had begun questioning her sanity. If no one was doing this, then she must be doing it but not remembering. Maybe she had multiple personalities, or dementia, or chronic sleepwalking problems. She finally resorted to setting up a surveillance camera in her classroom, which snapped a photo of the back of a person leaving her room after hours. So, she knew she wasn’t just going crazy on her own – she was being driven crazy by her colleagues.

In light of all the challenges teachers face on a daily basis and the horrendous violence in Newtown, not to mention the focus on anti-bullying measures for students in schools, a group of elementary school teachers apparently had nothing better to do but bully one of their colleagues.

This mild example of workplace bullying I’ve seen exemplifies some of the very unique ways a bad work environment can make an employee miserable, unproductive, and physically and mentally sick.  As is often the problem with employment law, I had to tell her that there really were no viable legal remedies to stop this kind of workplace bullying.

Clients often come to our firm saying something like, “My [boss/coworker] hates me. I don’t know why. She is doing everything she can to make me quit. She berates me in front of my co-workers, she calls me stupid, she calls me slow, she scrutinizes my work, she ignores me in meetings. She won’t even make eye contact with me when we pass each other in the hall.  I used to love my job, but the work environment is so hostile that I hate going to work. I’m having trouble sleeping, eating, even playing with my kids.”  

These are not cases where employees are overreacting to a tough boss, or are simply extra-sensitive to criticism. These are cases where the employee is suffering serious psychological trauma, akin to domestic abuse.[1] There isn’t a lawyer in our firm who hasn’t spent time with a suicidal or at the very least, sobbing client over day-in, day-out harsh treatment at work. In a 2007 study, the Workplace Bullying Institute (“WBI”) and Zogby International surveyed a representative sample of American adults. Out of the 7,740 workers interviewed, 37% had directly experienced bullying, and another 12% had witnessed it. Only 45% had no experience with it.[2] This translates into an estimated 54 million American adults who have been targeted by workplace bullies. In 80% of those cases, the treatment was not based on a person’s protected class status, meaning that bullying is four times more prevalent than illegal harassment.[3]

What is particularly disturbing about these scenarios is the fact that, in Utah (and in every state except Montana), employers are free fire people at will. If a boss wants to fire someone because of the way the employee dresses or smells or only makes one-sided copies, that is perfectly legal. The employer doesn’t have to have a good reason or any reason. Nonetheless, instead of letting someone retain an ounce of dignity simply by saying, “This isn’t working out. I’m going to have to let you go,” disliked employees are commonly harassed and bullied to the point where they fear going to work, become physically and mentally sick, lose all self-confidence, are forced to quit, and then struggle to find new employment because they have lost all self-esteem and confidence. And this condition isn’t just bad for the employee himself; it hurts employers too. Targeted employees take time off, are often unproductive at work, are forced to apply for short- or long-term disability, and may even file workers’ compensation claims over physical and mental harm stemming from bullying.[4] Furthermore, bullying in certain environments – like medicine – can affect third parties. For example, the Joint Commission, which accredits and certifies health care facilities and programs, reported that intimidation in the medical workplace leads to medical errors, patient dissatisfaction, and employee turnover.[5] And 49% of 2,095 health care providers surveyed reported that their past experiences with intimidation had changed the way they cared for patients by making them less likely to question medication orders, even when they had serious concerns about the patient.[6]

In a country where we like to believe that all people deserve equal treatment, this kind of abuse should be unacceptable. The Golden Rule is so obvious that it certainly should not require legislation. But it does.

Current tools to curb abusive workplace treatment are inadequate

In addition to tort claims, there are numerous laws that pertain to our roles as employees – the Workers’ Compensation Act, Title VII of the Civil Rights Act, the National Labor Relations Act, and the Occupational Health and Safety Act,[7] in addition to state-specific anti-discrimination statutes.  But interpretation of these statutes provides that the courts should not act as “super-personnel departments” that second-guess an employer’s business judgment.[8] In an ideal world with efficient and compassionate employers, bullying should be dealt with at the company level.

Nonetheless, we see many clients who have either sought help from their supervisor or human resources department to no avail, or who have sought help only to find that the bully redoubles his or her efforts.  Most people only seek legal advice as a last resort.

So, how can we help people who are desperate to change their situation and terrified of getting fired? People who, like most of us, spend the majority of their waking hours at work – but their work environment is quite literally making them physically ill and even suicidal?

First, tort claims don’t really work. In Utah, an intentional infliction of emotional distress (“IIED”) claim is actionable only if the “actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.”[9] Utah courts have found that a defendant’s conduct is “outrageous” only when it is “extraordinarily vile,” “atrocious,” and “utterly intolerable in a civilized community.”[10] This standard sets a very high bar.[11]

Second, existing statutes are either too specific to cover workplace bullying, or fall short of adequately protecting employees who can’t show that the adverse treatment is based on their membership in a protected class. For example while Title VII and its complementary state statutes define “hostile work environment” and provide legal remedies for vicious work situations, a claimant must show that the hostility is because of (or at least, due in part to) the claimant’s race/color, national origin, sex, age, disability, or religion. As for tort claims, employers are rarely found liable for something like intentional infliction of emotional distress, particularly if the harassment is not related to protected-class discrimination. While membership in a particular class is, unfortunately, often commensurate with unequal treatment and harassment; more often than not, workplace bullies choose their targets simply because they want to demonstrate power and control.  Destroying someone’s dignity is a (very bad) way of achieving that end.

A brief history on model legislation

The United States is a relative newcomer in the developed world in recognizing that the workplace has bullies.[12] David Yamada, now the primary legal expert on workplace bullying in the U.S., first drafted prototype legislation, titled the Healthy Workplace Bill, in 2000. Since 2003, variations of the bill have been introduced in 23 states but no state has yet enacted the bill into law.[13]

The Healthy Workplace Bill is not intended to be avenue for an employee to complain that a manager yelled at him or her once. It is not easy to establish employer liability for bullying and the potential recovery is low. So, no employee or lawyer representing the employee would undertake the claim without serious consideration of the proof needed. The model legislation defines “abusive work environment” as “when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.”[14] Tangible harm can be both psychological and physical harm established by competent medical evidence. This requirement incorporates elements of both tort and hostile work environment doctrine, while not requiring that the plaintiff be “emotionally destroyed” as in IIED claims.[15] It also imposes strict liability, but allows an employer to assert affirmative defenses when it “exercised reasonable care to prevent and correct” the behavior, or when the employee “unreasonably failed to take advantage of appropriate preventative or corrective opportunities.”[16] In terms of relief, the model bill provides for injunctive and punitive damages, as well as attorneys’ fees, and except in certain cases, compensatory damages are capped at $25,000. A court may also order that the bully be removed from the plaintiff’s work environment.[17] Because the bill provides only a private right of action, unlike in discrimination claims, no government agency is involved.[18]

Overall, the model bill is a soft-sell to employers, not an iron fist. This kind of legislation would encourage employers to institute anti-bullying policies, train their employees on what does and does not constitute bullying, and, hopefully, take complaints of bullying seriously. Nonetheless, the legislation has plenty of critics,[19] and as mentioned above, no state has yet passed the bill into law. 

Hostility on the homefront

In 2009, advocates in Utah began promoting a version of the Healthy Workplace Bill focused expressly on health care employers and titled “Health Care Provider Abusive Work Environment Prohibition Act.”[20] Aside from limiting the bill only to health care providers, the 2009 legislation closely followed the model Healthy Workplace Bill. Unfortunately, despite the fact that the act would only be enforceable through private rights of action and did not contemplate any new administrative entities or any additional duties for the Utah Anti-Discrimination and Labor Division, a fiscal note determined that the bill would cost the state approximately $140,000 per year and estimated that the state as employer could pay up to $2 million per year in legal settlements and attorneys’ fees. The bill was not considered further in 2009 or 2010 because this fiscal note was the kiss of death during the state budget crisis.  

Then in 2011, H.B. 292, the “Abusive Workplace Policies Act,” was introduced. This reincarnation focused exclusively on government entities, and limited remedies to $500 in damages, attorneys’ fees, and litigation costs.[21] Still, the bill went nowhere.

A further diluted bill was introduced in 2012.[22] This version limited “employers” to state agencies and higher education institutes. A court would be limited to issuing a writ of mandamus to an employer who had failed to adopt a policy prohibiting an abusive workplace. A prevailing complainant would not be able to recover any emotional distress damages, attorneys’ fees, or litigation costs. Based on fears of “all kinds of litigation” from the Governor’s Office and Risk Management, a substitute bill stripped the private right of action provision,[23] meaning that the act would require state agencies to enact a policy and training on bullying, but there would be no remedy or enforcement mechanism whatsoever.

Even this mild version of the legislation was met with a great deal of resistance. At the committee hearing on the 2012 legislation, opponents of the bill raised concerns common to the discourse typically used in favor of tort reform. For example, one committee member expressed difficulty in distinguishing bullying from “trying to correct unacceptable employee behavior.” This is a commonly recycled argument, but I am fairly certain that most employees can differentiate between a boss who tells them they must improve their work and a boss that humiliates, demeans, insults, and degrades them on a daily basis.

Another committee member pointed out that in her organization, an aggrieved employee was always represented by an “independent” human resources employee. This mentality ignores the very real fears employees have about retaliation. Our firm almost always encourages employees to seek assistance from human resources. But our clients report back to us with one of the following results: (1) HR did nothing; (2) the harassment has gotten worse; (3) I’ve suspiciously been accused of [fill in the blank misconduct]; or (4) I’ve been fired.

When I asked Denise Halverson, Utah state coordinator for the Healthy Workplace Campaign, why employers are so resistant to this type of legislation, she compared it to a football-game mentality – everyone wants to win, and there is a false dichotomy between business and a healthy work environment. Plus, the rhetoric that this legislation will create a flood of lawsuits and cost employers millions is powerful. No one wants to delve beneath this red herring to consider just how costly it is to continue ignoring bullying in the workplace. It’s not only the employee who pays – the organization pays in the form of health care costs and diminished productivity, and the community pays when our nurses and teachers are afraid to speak up.

Advocates like Ms. Halverson are realistic – legislation isn’t going to instantly “fix” the problem. But it will help to inform organizations what they need to do to help prevent bullying, and how to implement policies to that end. It is a long road, but like all forms of social justice, it is one advocates won’t veer from until they reach the end.[24]

I followed up with my schoolteacher client a few weeks after our initial meeting. I wanted her to know that, although I didn’t think she could or should pursue any kind of legal action, I hoped that she would continue to stand up for herself at work. She assured me that she wasn’t backing down.



[1] Workplacebullying.org, The WBI Definition of Workplace Bullying, www.workplacebullying.org/individuals/problem/definition.  See also Gary and Ruth Namie, The Bully-Free Workplace (Wiley 2011).

[2] Gary Namie, Ph.D. and Ruth Namie, Ph.D., Workplace Bullying: Introduction to the ‘Silent Epidemic,’ (2008) (on file with the author).

[3] Id.

[4] Id.

[5] The Joint Commission, Behaviors that undermine a culture of safety, Issue 40 (July 9, 2008), www.jointcommission.org/sentinel_event_alert_issue_40_behaviors_that_undermine_a_culture_of _safety/.

[6] Institute for Safe Medication Practices, Intimidation: Practitioners speak up about this unresolved problem (Part I), (March 11, 2004), www.ismp.org/newsletters/acutecare/articles/20040311_2.asp.

[7] In 2011, OSHA published some guidelines on Violence in the Workplace, intended “[t]o provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.” Chapter 10-1

[8] See, e.g., Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1308 (10th Cir. 2005).

[9] Sperber v. Galigher Ash Co., 747 P.2d 1025, 1028 (Utah 1987).

[10] Retherford v. AT&T, 844 P.2d 949, 977 n. 19 (Utah 1992).

[11] Cabaness v. Thomas[11], a recent Utah Supreme Court case, does offer some hope that employees could eventually prevail on an IIED cause of action. Cabaness, a 26-year employee at Bountiful Power & Light, worked under the same abusive supervisor from 1984 until he finally quit in 2004. Thomas, the supervisor, consistently harassed, intimidated, and ridiculed the employees under his supervision, calling them “dumbass,” “jackass,” and the like. He also put them in dangerous work situations. When the employees complained to Thomas’s supervisor, they were threatened with termination. In 1997, Cabaness was diagnosed with depression related to work stress. Although Thomas was aware of this, when Cabaness returned to work from depression-related leave, Thomas criticized him about personal issues in front of coworkers and threatened to fire him. The district court found that, as a matter of law, Cabaness failed to demonstrate that these actions were extreme, intolerable, and outrageous.[11] The Supreme Court reversed and remanded, concluding that “reasonable minds could differ” on whether the conduct was outrageous and intolerable.

[12] For a thorough examination of the history of workplace bullying research and the evolution of proposed U.S. legislation, see David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 Employee Rights and Employment Policy J. 475-521 (2004), and David C. Yamada, Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment, 32 Comp. Labor Law & Policy J.  1, 251-283 (2010).

[13] Healthy Workplace Bill, www.healthyworkplacebill.org/index.php (last visited Feb. 6, 2013).

[14] See n. 12,supra, Yamada, Workplace Bullying and American Employment Law at Appx. p. 281.

[15] Id. at 263-64.

[16] Id. at 264.

[17] Id. at 265.

[18] Id. at 266.

[19] See, e.g., Timothy P. Van Dyck & Patricia M. Mullen, Picking the Wrong Fight: Legislation That Needs Bullying, 3 Mealey’s Litigation Report 1, 2 (June 2007); Sarah Morris, The Anti-Bullying Legislative Movement: Too Quick to Quash Common Law Remedies?, 65 NOV Bench & B. Minn. 22 (Nov. 2008).

[20] H.B. 224, 2009 General Session.

[21] H.B. 292, Part 3, 2011 General Session.

[22] H.B. 196, 2012 General Session.

[23] House Workforce Services and Community and Economic Development hearing on H.B. 196 S01, Feb. 22, 2012, available at utahlegislature.granicus.com.

[24] “Non-violence is a way of life for courageous people.” Martin Luther King, Jr., Stride Toward Freedom (1958). 

20 May 2013
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