Bullying Isn’t Illegal … Or Is It?

By Lynne Curry Oct 15, 2014

According to conventional thought, workplace bullies have virtual immunity unless they bully discriminatorily or cross the line into criminal assault.

As attorney Eddie Keller, partner at Kamer Zucker Abbott, a firm that represents management in labor and employment law matters, asserted, “Currently, most victims of workplace bullying only have three main ways of seeking legal relief.”

He explained that criminal and civil causes of action for assault and battery can be brought against workplace bullies that use physical violence or threaten violence, and stalking laws could be violated when bullies harass a target outside of the workplace, make unwelcomed telephone calls, or text and send e-mails to an unwilling recipient.

“Additionally, if it is shown that the workplace bullying is because of the targeted employee’s protected status, such as race, gender, disability or age, bullying can violate federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 and state law counterparts,” he said.

Corporate and general practice attorney Russell Nogg challenges these assumptions and outlines additional potential avenues for legally tackling workplace bullies.

Violation of Good Faith and Fair Dealing

According to Nogg, a skilled plaintiff’s attorney may be able to argue that employers who have evidence of bullying and do not address the bullying may violate the doctrine of good faith and fair dealing upheld by many state courts, among them Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nebraska, Utah and Wyoming.

Nogg referred to attorney Jason Randal Erb’s “The Implied Covenant of Good Faith and Fair Dealing in Alaska,” an Alaska Law Review article in which attorney Erb provides multiple examples in which Alaska’s Supreme Court applied the good faith and fair dealing doctrine to “effectuate public policy concerns.” Specifics given by Erb include that “neither party will do anything which will injure the right of the other to receive the benefits of the agreement” and that both parties will “act in a manner which a reasonable person would regard as fair.”

According to legal scholar E. Allan Farnsworth, “Good faith performance has always required the cooperation of one party where it was necessary in order that the other might secure the benefits of the contract.” In his article, attorney Erb concludes “The implied covenant of good faith and fair dealing acts as an implied promise that neither party to a contract will act so as to deprive the other party of the expected benefits of the contractual bargain.”

Keller cautioned that this potential doesn’t apply to nearly forty other states which don’t offer a good faith and fair dealing exemption to employment at will.

He also warned that while other types of “employment contracts impose an implied covenant of fair dealing, a breach of this implied covenant does not give rise to tort liability unless there is a special relationship between the alleged victim and wrongdoer. Tort liability generally requires the alleged wrongdoer be in a superior or entrusted position and engaged in ‘grievous and perfidious misconduct.’ ”

Attorney and HR consultant Rick Birdsall, however, believes Nogg has a viable argument. “Employers have a duty to protect employees. If they fail to control the workplace, they potentially breach their duty, leading to a possible negligence claim. Courts already rule that employers may be liable for sexual harassment in the workplace if they fail to address it, as employers control the workplace. It is a small step to extend this ‘duty’ argument to bullying, particularly if it leads to an employee’s constructive discharge, serious health issues that cause absence from work, or forced resignation,” Birdsall said.

Public Policy

Nogg suggests bullying may be found to violate public policy in the same manner as sexual harassment and race discrimination. “The concept of grossly disparate bargaining power has been a basis for various provisions of some contracts as void and thus against public policy. Aggrieved employees may not have reasonable bargaining power and thus can’t create on their own a bully-free work environment,” he said.

Erb asserts “there are significant public policy considerations for protecting a weaker party that has reasonably and justifiably placed its trust in a stronger party. Employees, like insured parties, put great confidence and trust in their employers.”

Contractual Interference

According to Nogg, an employee victim or employee victim’s employer may be able to sue bullies for impermissibly and intentionally interfering with the victim’s employment relationship. In essence, the employer/employee relationship has a contractual foundation. Attorney Birdsall agrees, especially if “the bullying is intentional and with malice.”

As a case in point, when Continental Airlines pilot Tammy Blakey sued alleging other Continental pilots disparaged her, Blakey won in New Jersey’s Supreme Court. The Court ruled employers “have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know” the harassment is “part of a pattern of harassment” in a setting “related to the workplace.”

Dr. Lynne Curry, CEO of the management, training and HR consulting firm, The Growth Company, Inc., founder of www.workplacecoachblog.com and author of Managing Equally and Legally and Solutions, is now at work on a self-training guide for employers and individuals facing workplace bullying. You can write her at www.thegrowthcompany.com or follow her on twitter @lynnecurry10​


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