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Goals of Presentation
1. What is workplace bullying?
2. What laws are implicated in
3. Future Legislation?
4. Take Away.
GOOD NEWS! - no such bill has yet to be introduced in 2016
What is workplace bullying?
Also known as "status blind harassment" or "equal opportunity harassment."
Bullying can happen to anyone and is distinguished from harassment targeted at certain groups of workers protected under federal and state statutes, which are gender, race, ethnicity, age, religion and sexual orientation.
Can be through physical or verbal conduct, through emails, instant messaging and even off-the-clock activities such as social media.
Bullying incidents come from verbal abuse, such as shouting, swearing and name-calling, taunting, along with malicious gossip, rumors and lies.
KEY: ultimately, the conduct by supervisors, managers and/or co-workers creates an hostile work environment for the employee.
What are the Costs to Employers?
In a 2007 workplace survey, commissioned by the Workplace Bullying Institute, Zogby International reported that 35 percent of respondents experienced bullying firsthand in the workplace and that bullying is four times more prevalent than illegal harassment.
Loss of employees through resignation.
High number of sick days.
Damage the overall moreale of work staff.
Job stress, which in some cases is related to bullying, costs U.S. companies $300 billion a year in lost time and health claims, according to the National Institute of Occupational Safety and Health.
Many employees and supervisors may be reluctant to "rock the boat" by reporting workplace bullying. They don't want to risk any negative impact on their job.
Bullies may sense this and take advantage of the situation, especially if they have no fear of losing their jobs.
Defined as a snub or the snarky comment or the interruption of a co-worker speaking in a meeting.
However, difficulty is that actions are hard to define and at the same time are common place throughout workers.
Petty annoyances is probably not enough.
More attention in recent years is that parents who deal with school bullying realize it can happen in the workplace, too.
Some employers have put into place anti-bullying policies, but advocacy groups want to go even further by urging states to give legal rights to workers who do not already fit into a protected class based on race, gender or national origin.
More than a dozen states—including New York and Massachusetts—have considered anti-bullying laws in the past year that would allow litigants to pursue lost wages, benefits and medical expenses and compel employers to prevent an "abusive work environment."
CHANGES MAY BE ON THE
Colorado's Current Laws
There is no workplace bullying law.
In general, employers in Colorado have significant latitude in how they treat their employees, as long as such treatment is not specifically prohibited by law or a contractual agreement.
Employers are not allowed to discriminate in employment based upon any of the following factors:
Race, Color, National Origin, Ancestry, Creed, Religion, Sex
Age, Physical Disability, Mental Disability, Sexual Orientation
Does Bullying Implicate Title VII Protections and EEOC Considerations?
"Same on Same" discrimination do not give Title VII protections.
- same sex or same race bullying.
EEOC Definition of a Hostile Work Environment
The US EEOC defines a hostile work environment as follows:
“Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where
1) enduring the offensive conduct becomes a condition of continued employment, or
2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive."
Other Potential Liabilities
Disability Discrimination under the Americans with Disability Act
E.g. - bullying has been induced or exacerbated a recognized mental disability & a failure to accomodate results.
Retaliation Claims (Burlington Northern)
Plaintiff must show that a reasonable E'ee would have found the challenged action material adverse - i.e dissuated a reasonable working from claiming discrimination.
Standard requires severe workplace bullying for an actionable retailation claim. Petty slights or annoyances will not be enough.
How About Tort Claims?
Torts Occurring Prior to Discharge
Off-limits pursuant to the WC exclusive remedy against common law claims and torts.
Claims: assault, battery, intentional infliction of emotional distress, negligent hiring, negligent supervision or negligent retention case against an employer.
Discrimination must still be targeted against one of the protective classes and made by an oppossite class.
E.g. - caucation group of men targeting a hispanic male co-worker.
E.g. - female employee repeated taunted about her physical appearance.
Workplace Bullying and Intersection with WC Claims
Torts After Discharge:
Not barred by WC exclusive remedy.
Defamation, outrageous conduct, etc...
: May want to consider having claimed injuries from "bullying" to be covered as WC claims, rather than subjecting the entity to other liability torts.
Did the incident of bullying lead to a physical injury?
If no physical injury, is the E'ee claiming a stress claim?
Stress Only Requirements Under the Colorado WC Act:
A psychologically traumatic event generally outside of a worker's usual experience;
The claim must be supported by the testimony of a licensed physician or psychologist;
The mental impairment must arise primarily from the claimant's occupation and place of employment;
The claim of mental impairment cannot be based upon facts and circumstances that are common to all types of employment; and
The mental impairment must disable the employee from his or her occupation or require medical or psychological treatment.
House Bill 1771 - Healthy WorkPlace
Introduced every year since 2009.
Currently is before the House on its third reading.
Cause of action for intentional infliction of a hostile work environment and unlawful employment practice.
Provides compensatory and injunctive relief, along with potential punitive damages to targets of workplace bullying.
Proof that defendant subjected plaintiff to abusive conduct so severe that results in physical or psychological harm.
Imposes liability for both individual perpetrators and their employers.
Caps emotional distress at $25,000 for non-tangible employment decisions.
BUT...it could be coming and it's only a matter of
13 states have introduced very similar bills.
Reccommendations to CO Employers
First and foremost, employers need to address the concerns of workplace bullying as it is in their interests to avoid current or future liabilities.
Second, if not already existing, create and open lines of communication for employees to present complaints to management, which should include bullying concerns.
Third, larger employers could consider establishing internal surveys for its employees to learn what potential bullying issues may exist. This shows trust, concern and initiates communication.
Fourth, create policies and training from the feedback received.
Summary and Take Away
Workplace bullying is an issue gaining an increase in support throughout the country and cannot be ignored.
Employers must be conscious that excessive, mainstream and ongoing bullying may lead to hostile work environments.
Various liabilties can exist and (while difficult to prove), may get substantially easier in the year(s) to come.
Indoctrinating policies, reporting procedures, etc.. can assist to avoid current and future liabilities.
Joshua D. Brown, Esq.
Lee + Kinder, LLC