Jenna Bedsole, labor and employment practice leader at Baker Donelson, joins The HR Risk Podcast to discuss policies and strategies for handling workplace bullies. Subscribe to The HR Risk Podcast on iTunes/Apple Podcasts, Stitcher, or your favorite podcast app!
Jennings: Our topic today is Handling Workplace Bullies. Organizations across the country are increasingly focused on preventing harassment and discrimination in their workplaces. These issues can cause not only significant legal risk, but can also be highly disruptive to the business. But what about workplace bullies, the so-called equal opportunity jerks? Is bullying even illegal? Should it be? And apart from the legal implications, how can bullying in the workplace affect retention and productivity?
Jennings: Joining us today to address these questions is Jenna Bedsole. Jenna is a shareholder at national law firm Baker Donelson, where she also leads the firm’s labor and employment group. As part of her practice, Jenna conducts management and employee training relating to issues in the workplace. She also regularly counsels employers to ensure compliance with applicable employment and labor laws.
Jennings: Jenna, welcome to The HR Risk Podcast.
Bedsole: Thank you for having me.
Jennings: Before we get started with our conversation, could you tell our listeners a little bit more about yourself and your practice background?
Bedsole: I have been practicing in labor and employment for the last 22 years, representing employers in litigation. I also provide advice and counsel to my clients. I have been doing a lot of training lately for my clients about various culture issues within the workplace and also employment legal compliance.
Jennings: Are there any particular risks or HR issues that you think our listeners should be thinking about?
Bedsole: I think training is very important. We’ve seen an uptick in the amount of requests we’ve gotten to help prevent sexual harassment and harassment in the workplace. But another issue that is a companion issue that a lot of clients are paying close attention to, and rightly so, is bullying in the workplace. We’ve also seen an increase in legislative activity within the states regarding anti-bullying measures and that can be complex because there’s not a true definition, unlike there is with harassment, for bullying. There are a lot of different definitions about what constitutes bullying in the workplace. In general though, a lot of the sources contend that it is abusive conduct that a reasonable person would find hostile or offensive that’s not related to any legitimate business interest. That could be intimidation, it could be threats, it could be insulting behavior, it could be sabotaging an employee, or it could just be unfair actions directed at another individual that could cause that person to feel threatened or abused, humiliated, or vulnerable.
Bedsole: And it could be repeated infliction of this sort of verbal abuse or threat. We’ve seen a lot of activity, a lot of reports of employees who believe or feel as if they’re being bullied. But it can be tricky because there’s no coherent standard definition. A lot of people ask, “well really, what’s the difference between harassment and bullying, because the definitions seem to be similar.” The response to that is that harassment—as employers think about it—is codified in a federal statute, Title VII, that forbids discrimination based upon a protected classes: race, sex, religion, color, national origin. The difference between harassment that’s actionable under Title VII is that bullying is not necessarily tied to a protected class.
Bedsole: And so the difference is when we, as litigators, are litigating a sexual harassment case, for example, one of the questions that we may ask is to whom was this harassment directed? Was it directed to particular gender or a particular race? And if the answer is “yes,” that is more likely that it will be actionable harassment. But if it is what is sometimes referred to as an “equal opportunity jerk,” those equal opportunity jerks, there’s no violation of Title VII. So if somebody is equally intimidating or harassing to both men and women, they are considered an equal opportunity jerk and therefore the conduct is not prohibited by Title VII.
Jennings: Do you think a fair way to think about bullying is that it’s the type of behavior that would be harassment is it were directed toward somebody on the basis of a protected class, but because it’s not directed based on a protected class, it’s bullying rather than harassment and they can look quite similar on that basis?
Bedsole: They can look quite similar. I think of it sometimes when I’m doing my trainings. I liken it to sort of a spectrum where you have no misconduct and then you have egregious harassment. Bullying can be in the middle of that spectrum, or not quite until you get to harassment. So you could have conduct, and the court may see it that way too, that is bullying, but it doesn’t rise to the level of actionable harassment under the law.
Jennings: One of the standards for harassment or other discrimination claims is there has to be an effect on somebody’s employment. Is there that kind of damages trigger in some of the states that have passed anti-bullying laws? First of all, what are some of the states that have passed these laws and is there a threshold that you have to get to for conduct to have enough effect to be legally actionable as bullying in those states?
Bedsole: That’s a great question. There are laws that are called the “healthy workplace acts” and there has been some legislatures to have passed “healthy workplace acts.” For example, Tennessee has a healthy workplace act it has adopted that is an anti-bullying statute for governmental entities. It also suggests adopting a model policy for private employers. California is probably the most recognizable, a state that has an anti-bullying provision for employers that have over 50 employees. They require two hours of interactive training on sexual harassment for supervisory employees and that training has to occur once every two years, and within six months of an employee becoming a supervisor. But that interactive training has to address prevention of abusive conduct. So again, that goes into that sort of amorphous definition of bullying.
Bedsole: Recently, as of January 19, 2019, West Virginia has introduced the Healthy Workplace Act, and that act creates a cause of action if it’s adopted by the West Virginia legislature, to prevent workplace bullying, mobbing, and harassment. What’s really interesting about this particular legislation is it creates liability not only for the employer, but also the individual who is the bully or who is alleged to be the bully. There is an affirmative defense just like there is for harassment that if the employer adopts a reporting mechanism and the employee fails to use that reporting mechanism, there is an affirmative defense for the employer. But that policy, just like in a sexual harassment case, has to be well publicized. The relief that’s available to the victim employee is back pay, front pay, medical expenses, and emotional distress and punitive damages. But you asked about adverse employment actions. One of the things that’s interesting about the West Virginia statute is there’s no adverse employment action requirement. So if there is a hostile work environment with respect to bullying, the emotional damages are capped at $50,000 for the employer and there’s no punitive damages for the employer. But that limit doesn’t apply to the employee who is the alleged bully. It also allows for a jury trial and the statute of limitations is for one year. That new proposed legislation, it’s probably the most comprehensive anti-bullying statute that I’ve seen.
Jennings: So it sounds like this is an area that’s developing in terms of private rights of action, the ability of an employee to sue either the employer or the bully over this sort of behavior, but it sounds like it’s developing potentially quickly across the states. How would you advise companies to think about this issue, both from a potential legal protection view going forward, but also from the fact that having bullies in the workplace, having a hostile workplace isn’t very good for productivity. It isn’t very good for retention or having a well-functioning workplace and team? What’re some of the approaches that companies are doing, or that you’re suggesting that they take?
Bedsole: They can implement a workplace bullying policy, which would be similar to but more comprehensive than an anti-harassment policy. It would be a bit broader than an anti-harassment policy. You can have a grievance process or a reporting mechanism so that employees who believe they are being bullied have a means by which they can report those claims. But it can’t just be a mechanism by which the employees can report. There has to be a robust investigation if those reports are received, because you’re right: it’s a culture issue. One of the things that I have noticed representing employers is there are lots of risks that come with having a supervisor or an employee who’s a bully in the workplace. As you’ve mentioned, retention is a big problem, absenteeism. the employees who are being bullied also can have health problems that they get stressed because they’re being bullied and sometimes that can lead to increased health costs for the employer.
Bedsole: The other thing that I’ve noticed too is that if you have a bully in the workplace, it affects the other employees who are witnessing the bullying because they think, “gosh, that could happen to me next.” So you have a decrease in morale. But it really is a culture issue if you don’t deal with the problem when you start noticing that it is occurring or when you receive a report. The other thing that can happen is when the employee goes to the EEOC to complain about the bullying. Even if it doesn’t rise to the level of harassment, they’re not necessarily complaining against the employer. They are getting back at the bad supervisor. So training your supervisors on means by which you can effectively either counsel or deal with employees is just as important from a culture perspective as training employees how to report harassment or bullying. So it’s really a two-pronged effort in training. You’ve got to train to get the culture that you want, to communicate the culture you want, and then you’ve also got a train to report if the conduct is out of line with the culture that you’re trying to promote.
Jennings: One thing that you said that really struck me was the impact on third parties when there’s, particularly, a supervisor who’s bullying. I’ve found in my practice that bullying can be somewhat of an infectious behavior because once one person starts to bully, the victims of that might end up bullying others. It can become something that wouldn’t exist at all in that workplace but for that patient zero of bullying who starts impacting the behaviors of others.
Bedsole: I completely agree. If you’ve got a supervisor who’s managing by intimidation, they are setting the example for others. I get a lot of complaints that might not be harassment, but one of the complaints that I get from employees is when a supervisor reprimands an employee in front of others. It’s not harassment, but it definitely creates a negative or a low morale, not only for the person who is being reprimanded in front of others, but for those who watched the reprimand. It’s that same feeling that we talked about earlier, that “gosh, that could happen to me next.” And we see a lot of complaints about bullying that arise out of a supervisor who may criticize or reprimand an employee in front of others. The best practice, obviously to the extent that you can, if you’re going to counsel an employee, do so outside of others. Remove yourself from the presence of others who may be listening or watching you as you counsel that employee.
Jennings: Absolutely, and that’s an embarrassing situation, not only for the employee who is being disciplined or counseled, but also for everybody else. I think that really gets the point of not only is it a matter of trying to find those people who might just be intrinsically toxic folks in the workplace and correcting those behaviors, but also training supervisors and managers to really think about how their behavior is perceived. They may think that it’s an appropriate thing to correct an employee, to provide that counseling or even that discipline. But in your example, it’s important to think about how that lands and how it lands both on the person that you’re talking to and others in the workplace and be thoughtful about that. You are the leader and things that you might be thoughtless about can still have a pretty big impact.
Bedsole: Correct. I believe that wholeheartedly.
Jennings: Jenna, if our listeners want to learn more or continue the conversation, where can they go for that?
Bedsole: You can visit our website at Baker Donelson. I am thankful to serve as the practice group leader for labor and employment for 127 lawyers in eight states. You can learn more about our practice at our webpage.
Jennings: Okay, great. And I’ll put a link to that on the show notes on the website. Jenna, thank you for joining The HR Risk Podcast.
Bedsole: Thank you. Take care.