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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

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Workers' compensation is, in essence, a no-fault insurance system whose costs are passed on to consumers.218 As such, it does a poor job of fulfilling the aforementioned policy objectives for addressing workplace bullying. Targets of bullying may receive compensation, but only if they can establish full or partial incapacitation. Although employers can contest claims for workers' compensation benefits, they usually need not fear the kind of liability, legal costs, and adverse publicity that; say; a discrimination lawsuit can bring. Thus, workers' compensation offers employers less incentive to engage in preventive measures. Furthermore, the no-fault nature of workers' compensation and the absence of punitive damages render fairly meaningless the policy goal of punishment.

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6: The Limits of IIED in Addressing Workplace Bullying

At first glance, IIED potentially meets all four of the policy goals discussed at the beginning of this section-namely, prevention, self-help, compensation, and punishment. The potential liability facing employers encourages them to engage in preventive measures, particularly in addressing abusive supervision. Standard tort remedies can impose compensatory and punitive damages, thereby fulfilling the goals of compensation and punishment. The existence of this legal protection potentially encourages a targeted employee to engage in self-help measures.

However, IIED is ultimately a limited legal protection for targets of workplace bullying. The most successful plaintiffs in workplace IIED cases are those whose claims may also give rise to recovery under laws that prohibit status-- based harassment and discrimination. By contrast, those who have been subjected to more ordinary "equal-opportunity" abusive work environments have no other legal options. Rather, they must pursue their claims under a legal theory that obviously was not designed with them in mind.

Of course, much of the problem rests with the Restatement. It is telling that of the numerous hypothetical illustrations provided in the Restatement's section on lIED, not one involves anything resembling an abusive work environment.219 In expressing their reluctance to allow IIED entry into the workplace, courts often invoke the Restatement's pronouncement that "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" do not constitute outrageous conduct.220 "The rough edges of society are still in need of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language; and to occasional acts that are definitely inconsiderate and unkind," wrote the Oklahoma Court of Civil Appeals, quoting from the Restatement, in denying an employee's IIED claim in Mirzaie v Smith Cogeneration, Inc.221

According to the Restatement, "[t]here is no occasion for the law to intervene in every case where someone's feelings are hurt: There trust still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam."222 Particularly where bullying involves an abusive supervisor, the failure of the law to recognize the gross imbalance of power between workers and managers in typical nonunion employment settings means the high threshold of the Restatement favors managers. Under the dominant interpretation of lIED and employment law generally, only employers and their supervisors retain the right to hurt someone's feelings, to express an unflattering opinion, and to unburden their tempers by blowing off steam an their subordinates. Of course, if average rank-and-file workers were to direct salvos of "rough language" and "inconsiderate and unkind" acts toward their supervisors, they could be fired immediately, and courts would routinely uphold their dismissal under the rule of at-will employment. By failing to adequately protect employees from abusive employer conduct, the law has created. in effect, a boxing match in which workers take the punches but may not fight back.

phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

Georgetown Law Journal, Mar 2000 by Yamada, David C

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