From the playground to the classroom to the office — bullies can be found in all walks of life, says an anti-bullying advocacy group vying for new legislation that could potentially outlaw workplace bullying. But how would new anti-harassment legislation affect employers, and more notably their employment practices liability coverage? And what exactly constitutes a bully and bullying behavior in the workplace?
What is workplace bullying?
Most organizational psychologists and those who study bullying behavior use a definition that emphasizes the negative, persistent and long-term nature of the experience of bullying. In other words, bullying in the workplace is not defined as one-time or infrequent incidents.
In a 2000 study, “Destructive Conduct and Bullying at Work,” sponsored by the British Occupational Health Research Foundation, and authored by Helge Hoel & Cary L. Cooper from the Manchester School of Management in the United Kingdom, bullying was defined as: “a situation where one or several individuals persistently over a period of time perceive themselves to be on the receiving end of negative actions from one or several persons, and in a situation where the target of bullying has difficulty in defending him or herself against these actions.”
Johan Lubbe, a partner at Jackson Lewis LLP law firm, who conducts educational seminars on workplace bullying issues, says that when trying to define workplace bullying from a legal perspective, the definition should include seven essential elements: repeated behavior; inappropriate behavior; direct or indirect behavior; verbal, physical or otherwise; conducted by one or more persons; at the workplace in the course of employment; and capable of being reasonably regarded as undermining a person’s dignity.
“We define bullying as strictly repeated health harming mistreatment,” says Dr. Gary Namie of the Workplace Bullying and Trauma Institute, an advocacy group that supports anti-bullying legislation in the United States. Namie says that bullying in the workplace is driven by the need to control an individual or group of individuals, is initiated by bullies who choose targets, timing, place and methods but may escalate as others participate, and ultimately prevents work from getting done.
Typical conduct of a workplace bully might include: flaunting status, ignoring target employee’s contributions, excessive or unwarranted criticism, interrupting and preventing expression of opinions, failing to respond to calls or memos, excluding/failing to invite employees to meetings, the silent treatment, shouting, verbal attacks, swearing/foul language, gossip, blaming an employee for others’ errors and playing mean pranks.
“Because the workplace is an organized activity where individuals get together and there are roles and contractions, you must behave in an appropriate business like manner that doesn’t adversely affect other employees,” Lubbe says.
Bullies in the workplace appear to be gender neutral, according to Namie. The WBTI Web site reports that women account for 58 percent of workplace bullies, while men are bullies 42 percent of the time. Both women and men bully, but women are the primary targets, according to the WBTI. Women bullies choose women targets 87 percent of time and choose men targets only 13 percent. Men bullies choose women targets 71 percent of time and choose men targets 29 percent.
Also, when looking for bullies “you’ve got to start looking from the top ranks down,” Namie says. “The vast majority of bullies are bosses; seven out of 10 are bosses,” he said.
Next step in harassment law
Title VII of the 1964 Civil Rights Act and other anti-harassment laws currently prohibit harassment based on disability, gender, or race, but there is currently no such law that prohibits workplace bullying behaviors, says Jackson Lewis’ Lubbe.
“Currently U.S. law and in most other jurisdictions employers are prohibited against harassment where the harassing conduct is linked to a protective category,” Lubbe says. “But what bullying is doing is neutralizing abusive workplace behavior and not making it subject to some kind of legal protected category.” In other words, Lubbe says, bullying is becoming a “blind harassment.”
WBTI’s Namie says that in only one-quarter of bullying cases in a 2003 report on abusive workplaces was the target a member of a “protected status” group under discrimination law. This is the minimal requirement for filing a harassment or discrimination claim based on civil rights violations. In 15 percent of the cases, the bully is the one who was “protected,” according to the WBTI report.
While bullying is not currently a protected category under harassment law, Lubbe advises businesses to understand what workplace bullying conduct is and to develop preventative strategies that prohibit such conduct in the work environment. Lubbe says bullying is likely the next “evolutionary” step in harassment law, so businesses should be preparing now.
“In ’64 we passed a broad based anti-discrimination law, then about 25 years later, we passed the Americans with Disability law,” Lubbe said. “It took us some time to understand the protections that we introduced and that there were other groups that also need to be protected.
“It’s this evolutionary path of the law to refine, and improve on this equal treatment process,” he said. “I think workplace bullying is going to be one of those developments of refining the law.”
Bullying is same-sex harassment most of the time, says Namie, and therefore not accountable under current anti-discrimination laws. According to WBTI’s 2003 study, the probability for women to be bullied by another woman bully is 63 percent, whereas the probability for men targets to be bullied by another man bully is 62 percent.
Robert Cap, associate product manager, for EPLI and nonprofit D&O, at Shand Morahan, a part of the Markel Corp. Group, says that because bullying is general neutral, allegations of misconduct can be tough to prove.
“Sexual discrimination, number one, it’s easy because of gender discrimination,” Cap says. “It’s easier to quantify,” he explains. “With a workplace bullying situation it’s more one-on-one and it’s really almost gender neutral and sexually neutral. With a bullying situation you are never really going to see it on a class; it’s always going to be individualistic so it’s going to be tougher to prove.”
That’s precisely why anti-bullying legislation is needed, says WBTI’s Namie.
Namie and his organization have supported anti-bullying legislation, or the “Healthy Workplace Bill,” since the first bill was introduced in California in 2003. He says bullying in the workplace “undermines legitimate business interests.”
Since 2003, nine states have introduced anti-bullying legislation, including: California (2003-04); Oklahoma (2004); Oregon (2005); Washington (2005-06); Kansas (2006); Massachusetts (2005-06); Missouri (2006); Hawaii (2006) and New York (2006).
According to Lubbe, in four states the bills died in committee, and five states are currently considering the legislation. The newest legislation was introduced in New York in late May.
According to the WBTI Web site, the bill “substitutes health-impairment for discrimination, and extends protection to all employees, working for either public or private employers, regardless of protected group status, who seek redress for being subjected to an abusive work environment.” Should the bill pass, it would become “unlawful to be subjected to another employee whose malicious conduct sabotages or undermines the targeted person’s work performance.”
But Namie says that while the “Healthy Workplace Bill” seeks to protect employees and employers, most employers do not support its passage.
“Ever since the beginning we’ve always told employers this is an employment practices liability issue,” Namie says. “The employer community, reflectively, and uncritically brand our type of healthy workplace legislation as a ‘job killer.’ … Our bill is a pro-employer bill that protects employers from destructive individuals,” Namie maintains. “If they conducted a cost benefit analysis they could see it is unwarranted to retain the one bully that is probably affecting one division or region, and 10 to hundreds of employees and crippling the productivity of the company.”
Lubbe says that the issue of workplace bullying will become a more pressing concern for businesses and their legislators in the next two to five years as the issue gets increased public attention. He remains confident that anti-bullying legislation will pass at some point.
“What’s frequently interesting about these legislative attempts is that as they are rejected in some states people understand what the political opposition is and they will fine tune it,” Lubbe says. “The fact that four states have already rejected it does not necessarily mean that others will equally reject it. There may be some others that will fine tune a law that will ultimately imperialize. This is also part of the process. They learn from experience.”
Namie says that the United States is about 15 years behind the U.K. on bullying legislation. “To say they are ahead of us is an understatement,” he says. “We are the last industrialized nation in the world to face it and we’re not facing it on a national level.”
Lubbe added that ultimately it will not matter whether the alleged harassment is gender or race related. “If it’s abusive behavior then it will become outlawed,” he says.
Coverage for bullying claims may already be covered under some EPLI policies, says Gregg Draddy, assistant vice president of employment practices liability at The Hartford. However, Draddy says that EPLI is very fact specific and the facts of each case determine a lot on the coverage provided.
“We have provisions in our policy that address types (of conduct) where workplace bullying might fall under,” Draddy says. “We have provisions in our policy under our definition of wrongful act; it covers what’s called other workplace harassment,” Draddy adds. He says that coverage is explicit under the sexual harassment, or quid pro quo hostile work environment. “But there’s other workplace harassment and we have had instances where bullying being perceived as harassment has fallen under this provision in the policy.”
Draddy also said that another area where bullying and harassment often tie in is “infliction of emotional distress.”
“Often times that’s the damages that are alleged,” Draddy says. Infliction of emotional distress is another area where bullying might be covered in a policy, Draddy says, but “we require it to be tied to some form of discrimination or harassment or termination.”
Draddy says that it can be difficult to prove “infliction of emotional distress” because bullies are generally “non-discriminatory” in their bullying.
“By the very definition of what it takes to fall under discrimination of treating similar situated people differently,” he says, doesn’t apply to bullying. “In a lot of cases what you’ll see is the bully is an equal opportunity bullier,” he adds.
But Draddy says that it’s important to emphasize that “there are issues around bullying/harassment that are covered, whether it’s under other workplace harassment, infliction of emotional distress, or other areas that are covered under wrongful acts under EPLI policies.”
Shand Morahan’s Cap says that if a claim was alleged on simply “bullying” conduct it would be tough to claim a negligent act.
“Our policy excludes acts done willfully or maliciously,” Cap says. He says the specific exclusion excludes conduct of the insured, or at the insureds’ direction, that’s committed with wanted, willful, reckless or intentional disregard of any laws, or with criminal or malicious purpose.
“The problem that comes in with coverage, or from a coverage perspective,” Cap adds, “is that if the allegation was simply one of workplace bullying, it’s hard to do that negligently — it’s really an intentional act.
“From my perspective, I don’t think you can accidentally bully someone,” Capp says. “But, maybe we are at … with this situation … where we were 20 years ago or later or earlier with gender or sexual discrimination where you have someone who says, ‘Well I didn’t know I was doing anything wrong.’ So you might be able to sneak in coverage for this type of thing,” he says. He agrees, the issue of workplace bullying could be an emerging area that may have “some legs” in the future.
Draddy does see the potential trend toward future anti-bullying legislation, even though The Hartford hasn’t identified it as an area where there’s been a rise in the number of claims.
“We are very cognizant of what we deem to be claims trends,” Draddy adds. “We are cognizant of tracking what we see are developments and if we see a pattern of it, we will look at how the policy addresses it, what are potential liabilities under these claims, if there are precedents in that jurisdiction, or another jurisdiction that addresses that particular issue.”
Tony Beal, second vice president, EPL practice leader for St. Paul Travelers Insurance Company, says his company hasn’t identified claims trends on bullying either. “I haven’t seen any trends in that direction,” Beal claims. “Insurers and other people feel that there are adequate remedies to address the issue of harassment as a whole, under Title VII,” Beal adds. “I don’t know that there’s a need for addition legislation around bullying.”
Draddy says that if anti-bullying legislation were enacted, he doesn’t foresee a dramatic shift in coverage for The Hartford’s EPLI policies. “The intent of the EPL policy is to cover workplace harms like discrimination, harassment and other workplace torts,” Draddy says.
Beal agreed. “I don’t think it would make a huge difference from an insurance perspective, and from an underwriting standpoint,” Beal adds.
But Cap argues that the problem with workplace bullying stems around the fact that the conduct of a bully is tough to define.
“You could have a hyper-sensitive individual who is being criticized by their superior for poor performance and they perceive that as bullying,” Cap notes. “If a person can’t get the job done … and a manager’s forced to constantly judge their performance someone could perceive that as bullying. Where does it end? Where does the negative comment turn to bullying? It’s very subjective.”
“To be honest what are the damages of being shouted at?” Beal adds. “We don’t get allegations of being shouted at. We don’t have any laws or statutes against shouting,” he says. “I would not say that it’s OK to shout at people at work, but I’m also not saying that that’s a claim.”
If anti-bullying legislation does pass, Paul Martin, education director for the Independent Insurance Agents of Texas, says it probably wouldn’t make much of a difference for agents. “My guess is that it’s going to be covered under most (EPLI) forms,” Martin says. “But if I were an agent, I would confirm that the insuring agreement is really broad and make sure there wasn’t a specific exclusion if it was broad,” he adds.
Martin says that while the EPL product is not that old, about 15 years old to be exact, it has already evolved coverage-wise. “It has evolved but I think it’s evolved in favor of coverage,” he says. “And this probably is the next little step in the evolution of these things (harassment law),” he says. “But I think the insurance policies in most markets are in the position to take care of the risk.”
At the same time, Martin cautions agents to remember that EPL is a non-standard product.
“My advice to an agent would be to know the product you are selling,” Martin says. “Get a copy of it in advance so that you can discuss this intelligently with your customer.”
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