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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The
Georgetown Law Journal, Mar 2000 by Yamada, David C
INTRODUCTION
They sometimes are called "bullies," "tyrants," or "jerks:" However, regardless of how they are described (usually) out of earshot, bosses and others who inflict psychological abuse on their coworkers constitute one of the most common and serious problems facing employees in today's workplace.1 Of course, to many who have toiled for years in America's offices and factories, this observation simply states the obvious: intimidating, mean-spirited, manipulative, and sometimes high-decibel behaviors are not unusual workplace occurrences, especially from supervisors or managers.2 The unfortunate targets of abuse usually have to chalk up their experiences to bad luck and the ordinary costs of being employed.3
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In recent years, however, we have begun to gain a more sophisticated understanding of the phenomenon called "workplace bullying." In particular, scholars, therapists, and industrial psychologists have begun to create a conceptual framework for analyzing workplace bullying.4 It is now possible to generalize about the types of bullies that exist, the tactics they use, the targets they tend to seek out, and the individual and systemic consequences of their behavior. The emerging literature on workplace bullying confirms that this behavior inflicts harmful, even devastating, effects don its targets and can sabotage employee morale in ways that severely undercut productivity and loyalty.
Given the negative ramifications workplace bullying has far employees and employers, one might naturally look to the legal system to encourage employers to prevent and punish bullying behavior and to provide relief to employees when it occurs. Unfortunately, the growing body of statutory and common-law protections for workers-particularly status-based employment discrimination laws and tart claims for emotional distress-have not been effective against workplace bullying. Consistent with the law's historic reluctance to regulate the everyday employment arena, workplace bullying has yet to be fully recognized and addressed by the American legal system. For example, as will be discussed below, claims far intentional infliction of emotional distress (IIED) arising out of the workplace are seldom successful, and many courts have held that these claims are preempted by workers' compensation statutes. Furthermore, bullying behavior fueled by discriminatory intent often falls outside the protections of the hostile work environment doctrine promulgated under employment discrimination statutes. For now, abusive behavior that is considered harmful to employees and employers alike is rarely illegal.
The legal implications of workplace bullying have yet to be fully examined by the academic community. Although legal scholars have examined workplace IIED claims,5 these treatments were published before the recent emergence of a significant body of research on workplace bullying.6 Therefore, the impact of lIED case law on workplace bullying has yet tee be adequately addressed. In addition, the existing analyses of employment law predate the development of modern hostile work environment doctrine. Accordingly, there is a need to compare the latest behavioral and business management research with legal analyses of the IIED and the hostile workplace doctrines and to weigh the impact of evolving legal standards governing discrimination and harassment claims.
This article will explore the phenomenon of workplace bullying and consider the potential legal responses to this pervasive problem. As demonstrated below, existing legal doctrines such as lIED and statutory schemes do not adequately prevent workplace bullying or compensate bullied employees who suffer emotional, physical, and economic damage at the hands (or words) of a bully. This article will propose a statutory cause of action to give the bullied employee true legal recourse against the bully and his or her employer.
Part I of this article examines workplace bullying from the perspectives of psychology, economics, and industrial relations. Workplace bullying will be defined, and its harmful effects on individuals and employers will be explained. In addition, this part discusses the social and economic conditions that support workplace bullying and point to a likely increase in this behavior in the future. Part II identifies the policy goals that should shape a legal response to workplace bullying and then analyzes potential existing legal theories that may be invoked to combat it, most notably the tort of intentional infliction of emotional distress (IIED) and the status-based employment discrimination statutes. Part III proposes a better legal response to workplace bullying-a new statutory cause of action called "intentional infliction of a hostile work environment" that draws from sexual harassment hostile work environment doctrine and tort law. Ultimately, this article concludes that through the proposed cause of action the legal system will play a stronger role in both preventing and punishing workplace bullying and in compensating the targets of this objectionable behavior.
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