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Arbitrators' Review of Bullying in the Workplace. By: Hickox, Stacy A., Kaminski, Michelle, ABA Journal of Labor & Employment Law, 21564809, Oct2021, Vol. 35, Issue 3

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Arbitrators' Review of Bullying in the Workplace

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Introduction

Bad behavior calls for consequences. Bad behavior in the workplace, characterized as bullying, can include physical assault, threats, interference with work, and persistent verbal attacks. Workplace bullying places a heavy burden on targeted employees and harms employers in terms of higher absenteeism, health care usage, and turnover, as well as lost productivity. Targets of bullying may seek redress through legal claims against the bully and their employer, but litigation only provides damages for bullying that rises to the level of outrageous conduct. Without any comprehensive legislation prohibiting bullying in the workplace in the United States, litigation alone does not adequately provide for changes in the workplace to prevent future bullying, changes that might allow the target to remain at work and others to enjoy a civil workplace. Employers can choose to discipline bullies, but such discipline often is subject to the review of arbitrators empowered to interpret and apply employers' policies under a collective bargaining agreement or an employment arbitration program. While arbitration has been criticized as a means to enforce employee rights, in this article we argue it to be a potentially more effective tool than litigation.

The first part of this paper explores the significant impact of bullying. Despite the physical and psychological harm to the targets and the negative impact on workplace culture and productivity, many employers have not adopted specific policies prohibiting bullying behavior and often fail to fully address bullying behavior when it is reported. Therefore, targets may seek other options for redress.

The second and third parts of this paper review both judicial approaches to bullying behavior and labor and employment arbitration as an alternative. Only a small percentage of targets of workplace bullying take their cases to court, and those may be the most extreme cases.

The third part of this paper discusses an in-depth review of 135 arbitration awards, most of which determined whether an employer had just cause to discipline a bully.[ 1] These claims arise under a collective bargaining agreement that protects alleged bullies against unwarranted discipline, and under increasingly common employment arbitration programs covering non-unionized employees.[ 2] The fourth part of the paper compares the two approaches-litigation and arbitration. The fifth and final section highlights some unique and creative approaches to the reduction of bullying as demonstrated in arbitration awards and makes recommendations for employers and unions.

I. The Extent and Impact of Bullying The extent and significant impact of bullying behavior in American workplaces calls for attention to better methods to prevent such behavior. The Workplace Bullying Institute has defined workplace bullying as "repeated, harmful mistreatment" of one or more employees, known as targets, which can include conduct that is "threatening, intimidating, or humiliating," or interferes with work.[ 3] Examples can include "demeaning behavior, . . . isolation, . . . work sabotage, . . . harm to reputation . . . and abusive supervision."[

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4] Bullying typically involves such behavior that is "repeated[] and regular[] . . . and over a period of time . . . ."[ 5] Experts have suggested that bullying should be measured by both its intensity and frequency,[ 6] including conduct that is repetitive, oppressive, and causes harm.[ 7]

Some would include discriminatory harassment as one form of bullying, but, for the purposes of this analysis, we only consider abusive conduct that did not result from a target's membership in a group that is protected against discrimination. This analysis does not review statutory protections for discrimination or include arbitration awards addressing claims of employees who have been disciplined for harassment (as defined by Title VII and the other anti-discrimination statutes) for two main reasons. First, several other studies have analyzed the role of arbitrators in reviewing the claims of harassers.[ 8] Second, targets of discriminatory harassment enjoy at least some protection under federal and state anti-discrimination statutes, including the potential for injunctive relief and accommodations. This protection has been analyzed extensively by both the Equal Employment Opportunity Commission and various experts.[ 9] In contrast, because antidiscrimination protections only apply to harassment based on and because of the target's membership in a protected class,[ 10] many bullying targets lack protection from those statutes.[ 11] Targets of bullying that is not demonstrably based on membership in a protected class are limited to the relief provided under common law and some health and safety statutes, as described below.

Regardless of the definition applied, we recognize that bullying is widespread in American workplaces.[ 12] More than sixty million Americans report being affected by workplace bullying: anywhere from nineteen percent to forty-four percent of American workers have been bullied, and another nineteen percent have witnessed bullying behavior. [ 13] Among targets of bullying, twenty-nine percent remain silent, while only seventeen percent seek formal resolution.[ 14] This failure to report bullying may result from employers' lack of responsiveness to the conduct, or a fear of retaliation, a negative reaction to reporting it.[ 15] Based on this data, it is fair to say that bullying is widespread and yet often remains unaddressed in American workplaces.

Workplace bullying can produce a variety of harms for the targets, including "mental and physical health problems, post-traumatic stress, burnout, increased intentions to leave," and reduced job satisfaction and organizational commitment.[ 16] Negative health effects can include sleep disruption, loss of concentration or memory, mood swings, and states of agitation or anger.[ 17] Moreover, the strain caused by bullying can cause psychological issues, including post-traumatic stress disorder,[ 18] as well as debilitating anxiety (reported by eighty percent), panic attacks (fifty-two percent), and clinical depression (forty-nine percent).[ 19]

At work, targets of bullying lose focus, waste time worrying, are less helpful, and may reduce work effort or time at work, suffer a decline in work performance, and lose commitment to the organization.[ 20] Bullying also can cause resentment, leading employees to become "actively disengaged."[ 21] The work of teams of a target can also be negatively affected by increasing friction and unpleasantness as well as encouraging risk avoidance, which may affect customers or clients negatively and make it harder to hire or retain good talent.[ 22] In the long term, targets suffer forced transfers, constructive discharge without reasonable cause (twenty-four percent), or simply quit to reverse one's decline in health and sanity (forty percent).[ 23] These effects are magnified for low-wage workers.[ 24]

Employers may believe that protections against bullying undermine high performance expectations and competition between employees. [ 25] In fact, competition or even conflict between employees does not necessarily constitute workplace bullying.[ 26] But when a supervisor or coworker's behavior escalates into actual bullying, as defined above, the effects outlined above lead to negative consequences for employers. [ 27] Overall, bullying can "undermine[] legitimate business interests," [ 28] including, as described, decreased productivity and individual employee performance,[ 29] reduced motivation, and a decline in an organization's "flexibility and adaptability."[ 30] While not always recognized by employers, bullying can lead to higher turnover among both targets and observers of bullying[ 31] and negatively impact recruiting new talent because of a reputation for condoning bullying.[ 32] These costs to both the targets of bullying and their employers warrant closer attention to the factors that lead to the occurrence of bullying.

Research on workplace bullying has tended to focus on organizational triggers, including leadership deficits, as well as the demands and resources for a particular job.[ 33] Experts have suggested a variety of training and dispute resolution systems to address these factors.[ 34] In contrast, experts on bullying prevention dedicate relatively little attention to remedies or punishment, typically only noting generally that the punishment of bullies should be "commensurate with frequency, severity, and historical patterns."[ 35] For example, in a lengthy discussion of appropriate organizational responses to bullying, one expert included the relatively general

recommendation that employers should have "informal and formal sanctions available for employees found to have been perpetrators of workplace bullying/mobbing."[ 36]

Despite this lack of attention to punishment and enforcement of behavioral standards, the level of bullying in an organization depends in large part on that organization's standard operating procedures, norms of behavior, and rules of conduct delineating what is unacceptable or acceptable behavior.[ 37] Without such organizational norms or standards, "aggressive individuals are prone to define their own set of 'acceptable behaviors.'"[ 38]

Despite the need for explicit norms, employers often fail to take any affirmative action to address bullying behavior.[ 39] Research shows that punitive measures are taken against only five to six percent of workplace bullies.[ 40] One study found that, even when a complaint was made, only twenty-three percent of employer investigations resulted in positive changes for targets; in contrast, for forty-six percent, nothing changed after conducting an inadequate investigation.[ 41] A 2014 survey likewise found that only twenty- eight percent of employers showed concern for the targets, enforced policies and procedures against bullying, or condemned bullying behavior, compared to twenty-five percent of employers who denied that the conduct occurred, sixteen percent who discounted it, fifteen percent who rationalized it, and sixteen percent who defended or even encouraged it.[ 42] These studies demonstrate employers' common reluctance to impose discipline or other consequences on a bully, even where a targeted worker has complained.

Even an employer that adopts written anti-harassment policies may fail to take either reconciliatory or punitive measures against a bully.[ 43] An employer's failure to address bullying can perpetuate bullying by signaling to supervisors and coworkers that the employer tolerates bullying behavior.[ 44] Elimination of bullying requires "the willingness and authority to terminate chronic bullies from the organization," as well as supporting the targets of bullying.[ 45] The evidence above suggests that internal organizational processes in many organizations are insufficient to stop bullying and prevent future occurrences. Targets of bullying need other avenues to address their claims. Therefore, it is important to understand how both courts that review the claims of targets and arbitrators who review the discipline of alleged bullies make their decisions.

II. Judicial Response to Bullying Claims by employees seeking to address bullying typically arrive in the judicial system as tort claims under state law. Judicial remedies for bullying claims that do not invoke anti-discrimination protections are limited to payment of compensation to the target by the bully and/ or the employer, but only if some actionable behavior can be proven. Workers' compensation programs may also provide benefits for a target, if their harm is recognized as compensable and arose out of and in the course of their employment. Occupational safety and health statutes focus on fines to incentivize employers to maintain a safe workplace, including the absence of bullying, but do not provide damages for harm suffered by a target and cannot direct an employer to end bullying. Targets who develop a disability because of bullying can seek accommodations under disability anti-discrimination protections, but some relief from bullying, such as transfer away from a bully, may be considered not reasonable and, therefore, not required. This review of potential relief for targets of bullying from common law and statutory protection provides an important context for the review of arbitration awards addressing bullying behavior in the subsequent part of this paper.

A. Limitations of Court-Ordered Tort Remedies for Bullying Targets rely primarily on state tort claims to seek damages for the harm caused by bullying, unless the bullying behavior is linked to the target's membership in a group that is protected against discrimination.[ 46] With very little federal or state statutory protection against non-discriminatory bullying, approximately eighty percent of bullying targets are left with insufficient or no legal recourse.[ 47] Targets must rely on potential remedies under state common law, including, for example, assault, battery, or intentional infliction of emotional distress (IIED). These claims are rarely pursued; successful claims are almost nonexistent, compared to discrimination claims.[ 48] Even when a target pursues a tort claim, the decisions outlined below demonstrate that assault, battery, and IIED claims require substantial proof of intent and significant harm to the target to support monetary damages.[ 49] Plaintiffs rarely succeed because of the high standard required for IIED claims.

1. Lack of Injunctive Relief Tort claims alleging assault, battery, and/or IIED provide no direct means to remove a bully from a workplace or to stop bullying because those claims typically do not include any injunctive relief to end the bullying.[ 50] Similarly, injunctive relief has consistently been denied for plaintiffs in defamation claims so long as monetary damages will suffice. [ 51] In contrast, anti-discrimination laws

allow for injunctive relief,[ 52] and, in rare circumstances, courts may award injunctive relief if the facts show that the employer will not otherwise take adequate remedial measures in response to future harassment.[ 53] While in theory a civil suit for assault, battery, or IIED could seek injunctive relief against future bullying behavior,[ 54] a request for injunctive relief would be moot without a "reasonable expectation that the conduct will recur."[ 55]

Despite this potential for equitable relief, the assault and IIED claims reviewed here consistently fail to provide any injunctive relief against future bullying behavior where the claim did not invoke anti-discrimination protections.[ 56] Thus, if the target has left her job to avoid the bullying or has been discharged in retaliation for complaining about the bullying, an assault or IIED claim will not result in her reinstatement or a court order to end the bullying behavior. Even if money damages are awarded against the bully but not the employer, such relief will not necessarily influence an employer's response to bullying in the future.

2. Difficulty in Proving Intent Assault, battery, and IIED claims all require proof of the bully's unlawful intent to inflict immediate injury to the target.[ 57] The torts of assault and battery typically require proof of the bully's intent "to cause a harmful or offensive touching" of the target, or an imminent "apprehension of such contact."[ 58] For an example of a successful claim, an employee survived an appeal of a successful jury verdict where the bully "aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, . . . screaming and swearing at him, back[ed] the target up against a wall," instilling a belief in the target that the bully was going to hit him.[ 59] The Indiana Supreme Court concluded that, in this rare instance, the targeted employee presented substantial evidence that assault had occurred and that the bully acted with the requisite intent, supporting $325,000 in compensatory damages.[ 60] This decision received national attention as "evidence of a growing liability risk that counsels employers to take workplace bullying more seriously," even though the employer was not held liable.[ 61] In contrast to this unusual example of success, most assault and battery claims against a bully have been dismissed based on a lack of proof of unlawful intent.[ 62]

Similarly, the intent required for an IIED claim is difficult to prove[ 63] because the target must establish that the bully intends to cause that distress or was at least reckless in causing it.[ 64] Because intent can be ambiguous, an IIED claim may depend upon the context in which the bullying behavior occurs, including duration and organizational norms.[ 65] Thus, if an organization lacks specific prohibitions or fails to punish bullying, the target will find it more difficult to prove that the bullying was intentionally outrageous. In addition, the target of bullying must establish that the bully caused severe or extreme emotional distress for the target.[ 66] If the employer lacks an adequate system for reporting, or if past inaction discourages reporting, the target may be unable to show causation or that her harm was serious enough because she did not complain at the time.

3. Proof of Outrageousness Even if a target can establish a bully's intent, causation, and serious enough harm, a target's failure to show that bullying behavior is extreme and outrageous results in the dismissal of many IIED claims.[ 67] To satisfy this requirement, a bully's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."[ 68] Both federal and state courts often dismiss IIED claims because "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" do not constitute "extreme and outrageous conduct."[ 69] For example, yelling and screaming that is rude and insensitive typically will not establish sufficient outrageous behavior.[ 70]

Bullying will not be considered extreme and outrageous if it only disturbs the "emotional tranquility in the workplace" [ 71] or constitutes "pervasive" and "ordinary" misbehavior in the workplace.[ 72] For example, sending a note with "mere abusive language and insults"[ 73] to a coworker or subjecting a coworker to "isolating behavior, insensitive comments, and hostile and unpleasant conversations" were not deemed to be outrageous and extreme behaviors.[ 74] Thus, only bullying conduct that is neither "typically encountered nor expected in the course of one's employment" will be sufficient to support an IIED claim.[ 75] Under this standard, a target of bullying will find it more difficult to support an IIED claim in a workplace where bullying often goes unpunished. At the same time, an employer that reacts promptly to a complaint of bullying by investigating and disciplining the bully and relocating the target can establish that the bullying conduct was not extreme and outrageous.[ 76]

IIED claims are often conflated with claims of battery, by requiring physical violence against the target.[ 77] For example, while yelling at and physically threatening subordinates in a workplace were not extreme and outrageous, physically assaulting and restraining a target prevented dismissal of a related IIED claim.[ 78] Without physical harm or threats thereof connected with assault and battery, it

is unusual for courts to deny a motion to dismiss an IIED claims, unless the bullying behavior goes "well beyond the parameters of the typical workplace dispute."[ 79] In one case, a principal's false accusation of marijuana use by a teacher, exposing her to "social approbation of a high degree," supported a refusal to dismiss that teacher's IIED claim.[ 80] In some jurisdictions, an IIED claim may be supported if a supervisor "clearly abuses" his power over the targeted employee,[ 81] or where the bullying creates a pattern of persistent verbal and physical abuse.[ 82] Persistence is required even in these more employee-friendly courts, as one court explained that an IIED claim may be supported by "a continuous and ongoing pattern of . . . extreme, intolerable, and outrageous conduct."[ 83] Unless the target of bullying brings a claim in one of these more sympathetic jurisdictions, it will be difficult for her to establish the outrageousness required in an IIED claim without some evidence of physical harm or at least the threat thereof.

B. Limited Potential for Employer Liability Even if the bully's conduct was intentional and assaultive or otherwise outrageous, a bullying target's tort claim does not necessarily result in the liability of the bully's employer without proof of vicarious liability or independent wrongdoing by the employer.[ 84] This limitation on employer liability has been justified by the need to allow an employer to manage its operations.[ 85] Such limitations on employer liability have been criticized as allowing abusive behavior in the workplace without requiring that employers explain why "some amount of intentionally inflicted pain is acceptable."[ 86] Without the potential for significant liability for bullying behavior of their employees, employers have less incentive to address bullying that occurs in their workplaces.

One route to vicarious liability for employee conduct is if the conduct is "the kind the employee is employed to perform."[ 87] Because bullying typically is not part of an employee's job duties, it is difficult to hold an employer liable under this approach.[ 88] Courts often hold an employer harmless where the bullying conduct of its manager was not "within the course and scope" of that employee's authority or employment.[ 89] To establish employer liability, the bullying must serve the employer's interests and occur within "authorized time and space limits."[ 90] Thus, employers typically will only be held liable if the bullying behavior occurred under the employer's control, where the bully abused power delegated by the employer, or where the employer encouraged[ 91] or failed to address known bullying behavior.[ 92] Thus, an employer could be held liable for a bully's actions in the rare situation where the employer provided "de facto" authorization for the bully's acts.[ 93]

In addition to the limited potential liability for intentional tort claims, an employer might be liable to targets of bullying under the theory of negligent infliction of emotional distress, based on an employer's duty to protect its employees against intentional infliction of emotional distress by other employees.[ 94] Such a claim will only be successful if the bully's conduct was unreasonable and created an "unreasonable risk of foreseeable emotional harm" to the target/plaintiff,[ 95] overcoming the widespread belief that "individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace."[ 96] For example, two different school employees' claims of negligent infliction of emotional distress survived motions to dismiss based on allegations that the school breached its duty to protect its employees against imminent, serious harm,[ 97] particularly where the employer could foresee that the bully's conduct could create stress and anxiety so as to cause the target physical harm.[ 98] Without an intent to cause or foreseeability of harm, however, an employer will not be liable for harm inflicted by a bully.

Like a claim for negligent infliction of emotional distress, a claim of negligent supervision could result in an employer's liability for bullying if the employer "is negligent or reckless in the employment of improper persons or instrumentalities in work involving risk of harm to others."[ 99] Thus, a target of bullying would need to prove that her employer breached a "duty to forbid or prevent negligent or other tortious conduct" by the bully and that its breach of that duty proximately caused the target's injury, which caused an "actual loss or damage."[ 100] Under this standard, the target would still need to prove an underlying tort by the bully, as described above. In addition, the employer must have known, or should have known, that the bully had a propensity for bullying conduct.[ 101] Although the employer need not foresee the particular injury to the target, it must foresee an "appreciable risk of harm to others" based on the bully's previous conduct.[ 102] Unless the employer engages in its own actionable negligent behavior,[ 103] the bully's conduct must violate the law to hold the employer liable.[ 104] This standard makes it difficult for employees to succeed with such claims unless the bullying occurred because of the target's membership in a protected class.

Targets of bullying generally have been unsuccessful in holding employers liable under some public policy exception to employment at will which would require protection against bullying. An Ohio court, for example, refused to "recognize a claim for a violation of public policy on the basis of bullying."[ 105] Without such job security protection, courts have been reluctant to recognize such an

exception, under the Supreme Court's general guidance that protections against discrimination did not intend to require that employers adopt or enforce a "general civility code."[ 106] In contrast, a teacher with statutorily guaranteed tenure survived a motion to dismiss her wrongful discharge claim based on her endurance of bullying at her school.[ 107] A small sample of employees have argued successfully that employer policies constitute an enforceable promise to employees, and more employers are adopting policies against workplace bullying.[ 108] For example, an employee manual's provision entitled "Work Place Violence" containing affirmative promises and clear policies against harassment was found to have created an implied contract, enforceable under the covenant of good faith and fair dealing.[ 109] The same case stated that an exception to employment at will is only created by an employer's affirmative promises to protect its employees, such that a city's policy that it "will not tolerate verbal or physical conduct by any employee which harasses" can create an enforceable contract right.[ 110] Such claims are similar to prohibitions against bullying through arbitration, discussed below, which are enforced through discipline of the bully by the employer.

This review demonstrates that, because of the difficulty of proving assault, battery, IIED, and other claims and because of the limits of employer liability, the viability of addressing workplace bullying via tort claims against a bully and/or his employer is extremely constricted. The threat of such claims may be sufficient for employers to address the most severe, persistent forms of bullying, but will not extend to shorter term or less violent forms of bullying that still impact the targets' well-being and the health of the overall workplace. Moreover, an employer's tolerance of abusive behavior in the past may make it more difficult for a target to show that the bullying behavior is outrageous and therefore should result in damages. While the potential for damages may inspire employers to address known bullying behavior before it becomes outrageous, even a successful tort claim will not result in an order that the employer remove the bully or reinstate a target who has fled that abusive workplace.

C. Alternative Statutory Remedies Like tort claims, workers' compensation systems and occupational safety and health standards under federal and state legislation do not provide, and sometimes block, adequate remedies to prevent workplace bullying. Injuries that might otherwise support an IIED claim can be incorporated into a state's workers' compensation system which provides an exclusive remedy for workplace injuries.[ 111] Thus, a viable workers' compensation claim, based on work-related injuries that were not intended by the employer, would bar a tort action by the target against the employer.[ 112] Importantly, an employer's intentional acts may only be excluded from the limitations of a workers' compensation system if the bully acted intentionally as the "alter ego of the corporation and not merely a foreman, supervisor or manager."[ 113]

If the target cannot show that the bullying resulted in a disability related to the workplace, instead basing her claim on allegations of humiliation, embarrassment, public ridicule, and personal indigni

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