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

Crafting a fair and legally enforceable standard for determining whether the "reasonable person in the plaintiff's situation" would consider a working environment to be a hostile one is no easy task. One is tempted simply to borrow Justice Stewart's famous quip on how he defined pornography-"I know it when I see it."326 Of course, more is necessary to give parties fair notice of the requirements of the law. For guidance, it is useful to revisit researchers' findings on workplace bullying, examine the Supreme Court's dicta on what constitutes a hostile work environment under Title VII; and consider certain elements of IIED doctrine.

As Part I of this article explained, workplace bullying is best understood when considering an offender's behavior in its entirety. Bullying "encompasses all types of mistreatment at work,"327 including a variety of "hostile verbal and nonverbal, nonphysical behaviors" that undermine the target's self-confidence and work performance.''zs Superiors are more likely to be the offenders,329 though coworkers can also play that role, especially in group "mobbing" situations.330

However, from the standpoint of public policy, it would be undesirable for every mild instance of workplace bullying to be legally actionable. Hence, a reasonableness standard should be imposed. Reference to hostile work environment doctrine under Title VII and to lIED doctrine is helpful: Examining the Supreme Court's statement in Harris v. Forklift Systems, Inc. on what constitutes a hostile work environment under Title VII and removing the reference to discrimination, we find what sounds remarkably like a description of certain types of severe workplace bullying: "When the workplace is permeated with . . . intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," then relief is appropriate.331

In further considering the reasonableness standard, one can easily identify some of the behaviors that would point toward liability, such as abusive language, yelling and screaming, insults and put-downs, continuous, unreasonable work demands, and unfair accusations. In addition, several other factors should be considered, none of which should be considered dispositive:

1. Did the behavior continue ar recur over a period of time? A single insult, or a sudden but temporary increased workload, for example. should not be grounds for recovery. If certain types of offending behavior endure, liability may be appropriate.

2. Is there evidence of actions, both overt and concert, to sabotage the target's work or reputation, or to frustrate the target's ability to perform her work in a competent manner" An affirmative answer points strongly toward a finding that the target's conditions of employment were fundamentally and illegally altered under this cause of action.

3. Were there power imbalances between the aggressor and the target, for example a situation involving a superior as eau aggressor and a subordinate as a target? Bullying situations are especially disturbing when the aggressor has some direct control over the target's working conditions and job security.