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

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

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.

1. MAPPING THE WORLD OF WORKPLACE BULLYING

In an apparent reaction to the changing work environment of the late Twentieth Century, a growing volume of material has been recently published on workplace bullying both in books directed at popular audiences7 and in academic journals directed at scholars, psychologists, and therapists.8 In addition, our understanding of bullying has been greatly enhanced by the scholarly and advocacy work of researchers and labor activists in other nations.9 The following discussion, drawing on this new explosion of material, will attempt to define workplace bullying, consider its effects on workers and employers, and place it in the context of the modern economy.

A. DEFINING AND EXPLAINING WORKPLACE BULLYING

1. Definitions of Workplace Bullying

Scholars who principally study workplace bullying and its effects have advanced several competing definitions of the phenomenon. A brief survey of those definitions, however, uncovers that most scholars agree upon what behaviors constitute workplace bullying. The two individuals most responsible for popularizing the term "workplace bullying" in the United States-Gary Namie, an industrial psychologist, educator, and founder of the nonprofit U.S. Campaign Against Workplace Bullying, and Ruth Namie, a psychotherapist specializing in assistance to targets of abusive work environments--describe it as "the deliberate, hurtful and repeated mistreatment of a [t]arget...by a bully...that is driven by the bully's desire to control [another person]."10 The team "bullying" includes "all types of mistreatment at work."11 Under the Namies' broad conceptualization, legally actionable sexual harassment can be seen as a type of workplace bullying.12

Social psychologist and professor Loraleigh Keashly refers to workplace bullying as "emotional abuse," characterized by "hostile verbal and nonverbal, nonphysical behaviors directed at a person(s) such that the target's sense of him/herself as a competent person and worker is negatively affected,"13 Under Keashly's conceptualization, power imbalances between the bully and target usually are present. "In the majority of studies" examined by Keashly, "superiors are most frequently reported as actors of these behaviors," although peers and subordinates also can play this role.14

Researchers Noa Davenport, Ruth Schwartz, and Gail Elliott emphasize the effects of abusive group behavior on the individual. They have adopted the term "mobbing," which is commonly used in Europe.15 They describe it this way:

Mobbing is an emotional assault. It begins when an individual becomes the target of disrespectful and harmful behavior. Through innuendo, rumors, and public discrediting, a hostile environment is created in which one individual gathers others to willingly, or unwillingly, participate in continuous malevolent actions to force a person out of the workplace.16

Each of these definitions include certain characteristics that should be included in any understanding of workplace bullying. In sum, workplace bullying can be described as the intentional infliction of a hostile work environment upon an employee by a coworker or coworkers, typically through a combination of verbal and nonverbal behaviors.

2. Bullies and Their Behaviors

A recent survey by management professor Christine Pearson of 775 targets of workplace incivility and aggression found that sixty percent of the "instigators" of these behaviors "were of higher institutional status than the target," while "20 percent were of equal status" and "20 percent were of lower status."17 Seventy percent of the instigators were male, and men were much more likely than women to inflict their actions on those of lower status.18

Although the term "bullying" may connote physical and verbal aggression, targets of workplace bullying report a variety of overt and covert behaviors. Keashly's list of abusive behaviors includes the following:

aggressive eye contact, either by glaring or meaningful glances; giving the silent treatment; intimidating physical gestures, including finger pointing and slamming or throwing objects; yelling, screaming, and/or cursing at the target; angry outbursts or temper tantrums; nasty, rude, and hostile behavior toward the target; accusations of wrongdoing; insulting or belittling the target, often in front of other workers; excessive or harsh criticism of the. target's work performance; spreading false tumors about the target; breaching the target's confidentiality; making unreasonable work demands of the target; withholding needed information; taking credit for the target's work.19

An online survey of self identified bullying targets and witnesses conducted by the Namies similarly reported the following as the most common tactics, listed from most to least frequent: blame for "errors," unreasonable job demands, criticism of ability, inconsistent compliance with rules, threats of job loss, insults and put-downs, discounting/denial of accomplishments, exclusion or "icing out," yelling and/or screaming, and stealing credit.20

Management professors Joel Neuman and Robert Baron have constructed a model that places each type of aggressive or abusive behavior into one of three categories-"Expressions of Hostility," "Obstructionism," or "Overt Aggression."21 "Expressions of Hostility" may include "(i)nterrupting others when they are speaking/talking," "(f)launting status/acting in a condescending manner," and "(l)eaving the work area when the target enters."22 Obstructionism includes behaviors such as "(f)ailure to return phone calls or respond to memos," "(s)hawing up late for meetings run by target," and "(f)ailing to defend target's plans to others."23 "Overt Aggression" covers acts or threats of physical violence, as well as destruction, theft, or sabotage of the target's work materials.24 The Lists of behaviors compiled by these researchers indicate the broad range of behavior that must be addressed by a legal cause of action aimed at workplace bullying.

The Namies determined that the targets of bullies fit three common profiles. First, "nice people" are often targeted because bullies figure nice people are unlikely "to confront or stop them."25 Second, "vulnerable people" present a nonthreatening profile by their words and actions.26 Third, bullies target the "bold, best, and brightest." 27 Haunted by feelings of inadequacy, bullies "lash out at others who threaten their presumption of superiority" by doing what they can to undermine them.28

Bullies and their behaviors can take on various forms, However, the emerging research suggests that certain patterns are becoming clear. First, bullies are likely to be male and/or of institutionally superior status to the target. Second, bullying behaviors vary widely, covering a variety of overt and covert and verbal and nonverbal acts that undermine a target's ability to succeed at her job. Third; bullies seek out agreeable, vulnerable, and successful coworkers, often motivated by the bullies' own feelings of inadequacy.

3. The Effects of Workplace Bullying on Workers and Their Employers

Workplace bullying can have: serious, even devastating, effects on targeted individuals. Psychological effects include stress, depression, mead swings, loss of sleep (and resulting fatigue), and feelings of shame, guilt, embarrassment, and law self esteem.29 More severe effects can include Post-Traumatic Stress Disorder, which; left untreated, may cause an individual to react violently against either the bully or anyone else who happens to be in the vicinity.30 Physical effects include reduced immunity to infection, stress headaches, high blood pressure, and digestive problems.31

Workplace bullying also is very bad for business. Researcher Emily Bassman found that "(e)mployee abuse can have major bottom-line consequences" for employers.32 An employer may suffer direct costs, indirect costs, and opportunity costs as a result of abusive work environments. Direct costs include a significant increase in medical and workers' compensation claims due to workrelated stress and the costs of lawsuits emerging from abusive work situations.33 Because these costs are reflected in a company's financial statements, they are the easiest to measure.

Although more difficult to measure than direct costs, indirect costs also exist which carry significant negative consequences for an organization. A commitment to quality requires, among other things, ``employee involvement, empowerment, trust, fixing the problem rather than fixing blame; dedication to delighting the customer;. . . and using mistakes as improvement opportunities." 34 Abusive work environments achieve the opposite. They create "fear and mistrust, resentment, hostility, feelings of humiliation, withdrawal, play-it-safe strategies, and hiding mistakes."35 High turnover, absenteeism, poor customer relationships, and acts of sabotage and revenge are among the other indirect costs.36

Opportunity costs are the final category identified by Bassman. Abusive work environments can result in a worker's effort falling "between the maximum effort of which one is capable and the minimum effort one must give in order to avoid being fired."37 Abused workers also may "disengage from their workplace," committing themselves to outside activities and spending excessive time on the job talking about how poorly they are being treated.38 Moreover, when a work atmosphere is infected with anxiety and fear, the resulting stress can stifle creativity.39

The Pearson survey largely confirms Bassman's findings. Targets often responded to workplace bullying in ways that reduced employee productivity and loyalty and increased employee attrition:

1. "28 percent lost work time avoiding the instigator;"

2. "53 percent lost work time worrying about the incident or future interactions" with the instigator;

3. "37 percent reduced their commitment to the organization;"

4. "22 percent decreased their effort at work;"

5. "10 percent decreased the amount of time they spent at work;"

6. "46 percent contemplated changing jobs to avoid the instigator;"

7. "12 percent actually changed jobs to avoid the instigator."40

Research by Keashly additionally shows that an employer's response to complaints about bullying can influence a Target's behavior at work.41 Targets who perceived the organizational response as being inadequate often responded with "feelings of decreased commitment and loyalty to their organization and doing the minimum work to get by."42 These individuals were likely to believe that the interests of individual employees did not matter to the employer.43

4. Pervasiveness of Workplace Bullying

Although academic research on workplace bullying is still in its infancy, the emerging literature demonstrates that workplace bullying is a significant problem and that abusive supervision is particularly common. Psychology professor Harvey Hornstein gathered information about the topic "from nearly a thousand working men and women over an eight-year period," who represented a wide variety of occupations.44 Hornstein's research reflected "both the unexpectedly high frequency with which brutal boss behavior occurs and its adverse effects on subordinates."45 He estimates that ninety percent of the workforce suffers abuse from their bosses at some time in their careers.46

Most of the fifteen studies of work-related abuse examined by Keashly showed that very high percentages of respondents reported being targets of some type of emotional abuse in the workplace, generally ranging from around fifty percent to well over ninety percent.47 The following are some examples:

A 1991 study of nurses and nurse managers reported that over ninety-six percent of the respondents had been subjected to verbal abuse, most frequently by physicians.48 A twenty-five percent turnover rate and reduced patient care were among the major consequences.49

A 1995 study of university faculty and staff reported that over half of the respondents had been subjected to verbal abuse, and twenty-three percent had been mistreated.50 Superiors were the most frequent perpetrators.'51

A 1994 study of undergraduate students with work experience reported that all had experienced some type of emotional abuse in their jobs by either bosses or coworkers, and fourteen percent had been subjected to more than ten emotionally abusive events.52

Ultimately, workplace bullying is a pervasive and disturbing phenomenon with significant costs to both its targets and to the rest of our society. Moreover, economic and social conditions in the modern workplace are combining to create an environment very hospitable to bullying. Therefore, bullying will not disappear soon from the American workplace, but its costs may continue to increase.

B. THE MODERN AMERICAN WORKPLACE: PRIMED FOR BULLYING

There is a strong sense among Americans that civility has been last in the modern workplace. In a major public opinion survey conducted by The New York limes in 1995, respondents by a fifty-three to eight percent margin felt that the workplace is "more angry" than "compared to the way things used to be."53 The study concluded that "(p)all respondents see the bonds of loyalty between employees and companies and the spirit of friendly cooperation among employees being eroded by anxiety and pressure to work harder for less."54

An analysis of economic and social conditions supports The New York Times survey data and buttresses the assertion that the modern workplace is primed for abusive behavior toward workers. Five often-interrelated economic and social trends-the growth of the service-sector economy, the global profit squeeze, the decline of unionization, the diversification of the workforce, and increased reliance can contingent workers-are combining to create more "bully-friendly" working conditions and point strongly toward a continuation of, if not a likely increase in, bullying behavior. In order to understand how these economic and social conditions are creating a climate favorable toward bullying, each trend is individually considered below.

1. Growth of the Service Sector Economy

The growth of jobs in the service sector and the characteristics of these jobs have led to an increase in workplace bullying. Service sector work can be defined as work "in which face-to-face or voice-to-voice interaction is a fundamental element" of a job.55 Labor market statistics demonstrate that service work has constituted a steadily increasing share of the U.S. labor market. In 1850, service sector work represented under twenty percent of total employment.56 By 1950, the number of service sector jobs rose to roughly fifty percent.57 In 1990, service work provided over seventy percent of U.S. jobs.58

By contrast, the manufacturing sector reached its high point in terms of employment around 1950; when it constituted just under thirty-five percent of the workforce.59 The number of jobs in the manufacturing sector dropped to about twenty-five percent by 1990.60 The agricultural sector has continually and sharply declined since 1850, when it represented just under sixty-five percent of the workforce; by 1990 it represented only three percent of the labor market.61

Professors Cameron Lynne MacDonald and Carmen Sirianni observe that "(b)ecause personal interaction is a primary component of all service occupations, managers continually strive to find ways to oversee and control those interactions . . . . "62 In contrast to goods-producing work, service-sector labor "no longer entails the assembly of a product but the creation and maintenance of a relationship."63 Because service sector work is so dependent on personal interaction, it becomes a form of "emotional labor" in which the psychological consequences of work, both positive and negative, are easily exacerbated, especially in comparison to the more mundane yet steady working conditions of a manufacturing plant.64

The very nature of service sector work creates conditions in which workplace bullying is more likely to occur. Frequent, ongoing personal interaction between workers often becomes a basic element of a job, especially in work arrangements between supervisors and subordinates. Lawyer-paralegal, doctor-nurse. store manager-stock clerk, bank president-secretary-these are but a few examples of typical service-sector work pairings in which personal contact is an integral aspect of the respective jobs. When people interact more, it is more likely that personalities will clash and that individuals who possess bullying tendencies will have opportunities to act upon them. This is especially true in view of the economic pressures facing companies, managers, and workers today, the details of which are discussed immediately below.

2. Global Profit Squeeze

The global marketplace has put increasing pressure an American managers and American workers to provide better and more services and goods at a lower cost.65 It appears that these stressful work environments both fuel natural bullies and create new ones. As Professor Harvey Hornstein told Fortune Magazine, "Nearly half the cases of abusive bosses that I've uncovered can be attributed to the Nineties work environment."66 This environment. "has ignited explosions of brutality both from innate bullies who thrive on their mistreatment of others and from overburdened bosses who might never have behaved that way in less stressful times."67

Driven by the profit squeeze and threatened by cheaper goods and lower labor costs from abroad, many companies have adopted a downsizing mentality and have carved away "layers of supervision and management."68 The surviving managers and workers "are expected to produce more with fewer resources."69 Baron and Neuman found that popular cost-cutting measures such as downsizing and layoffs, and organizational changes such as corporate restructuring, are "significantly related to expressions of hostility and obstructionism" in the workplace.70

Many of the layoff casualties have been middle managers who worked more closely with rank-and-file workers, leaving the remaining managers with more people to manage and under greater pressure to perform.71 In order to cope with their increased duties, managers have developed what Hornstein calls a "siege mentality," whereby bosses "feel that they must stamp down subordinates to stay on top of things and alive."72 Workplace bullying is one of the natural consequences of this dynamic.

3. Decline of Unionization

Union membership in the American workforce declined precipitously during the second half of the Twentieth Century, particularly in the private sector.' In 1945, 35.5'0 of all nonagricultural employees were unionized.74 In 1995, only 16.710 of all nonagricultural employees were unionized.75 Figures for the private sector were even bleaker for unions, as only 10.4% of those workers were union members.76

The presence or absence of a union bears a strong relationship to conditions that promote or deter abusive treatment of workers. Although a union's presence in no way guarantees a "bully-free" workplace,77 it can alter the balance of power and make bullying less likely in two primary ways. First, collective bargaining allows union members to negotiate with management on matters related to compensation, benefits, and working conditions.78 In terms of protecting union members' job security, the typical collective bargaining agreement is designed to prevent arbitrary management actions and to provide baseline procedures and criteria for employment decisions.79 All of these protections can serve as checks on abusive behavior by managers and supervisors.

Second, the presence of a union provides a potentially useful "safety valve" for resolving disputes created by or exacerbated by abusive supervisors. A good union shop steward can play a helpful role by serving at times as an employee's representative and on other occasions as an informal mediator. In addition, shop stewards and joint union-management committees can, be the conduits for communicating workers' concerts to management about abusive supervision without invoking formal grievance procedures.80

These bilateral lines of communication are missing in the typical nonunionized workplace. A nonunion employee does not have a shop steward who can "run interference" on her behalf when dealing with a difficult supervisor or coworker. She is much less likely to have access to a worker-management committee concerned with working conditions, especially in light of the National Labor Relations Board's finding that some management-initiated employee committees violate the National Labor Relations Act because they are "labor organizations" unlawfully dominated or supported by employers.81 She has no due process rights and very few substantive rights against arbitrary discharge: Thus, in most cases in which an at-will worker is subjected to abusive treatment in the workplace, she will have to handle it alone and-as we will see below-without much law to back her up.

In the 1950s, economist John Kenneth Galbraith recognized that unions exercised "countervailing power" that served to restrain the market strength of companies.82 Some four decades later, Galbraith affirmed the value of unions but conceded that, for many workers, especially those in the service sector, "organization [into unions] is not now a practical solution."83 In short, the presence of countervailing union power that can help provide minimum standards for employee dignity is absent from most of today's workplaces.

4. Diversification of the Workforce

The American workplace is becoming more diverse. According to one estimate, women, people of color, and/or immigrants will account for "[o]ver 85 percent of the net growth in the labor force between 1990 and 2000."84 The diversification of the workforce may be heightening the potential for bullying to occur. Baron and Neuman report that "increased diversity" is one of several social factors that are "significantly related to all three forms of workplace aggression" as defined by their conceptual model-verbal aggression, obstructionism, and workplace violence.85 Citing previous research studies, they explain that people tend to be "attracted to others they perceive as being similar to themselves and repulsed by those who they view as being dissimilar."86 When people with diverse characteristics are compelled to work together, ``decreased levels of interpersonal attraction and increased potential for aggression" may be the result, especially if diversity is not properly managed.87

The relationship between the latest findings concerning diversity and workplace bullying may be understood more fully by examining Austin's work explaining the interaction between modes of management authority and the hierarchical structure of the labor market.88 Although work rules, wage scales, and job categories are among the most prevalent forms of bureaucratic control exercised by employers,89 the greatest potential for supervisory abuse occurs because of the ability of supervisors to direct, monitor, discipline, and reward workers, known as "simple control."90 Simple control; and the supervisory abuse that may come with it, is most easily exercised over "unskilled and semiskilled unorganized workers" who comprise the bottom tier of the labor force.91 "Blacks, Latinos, women, teenagers, and undocumented immigrant workers continue to be disproportionately represented" in this bottom tier.92

5. Increased Reliance on Contingent Workers

According to economist Paul Osterman, "perhaps for the first time since the Great Depression, there are widespread indications that internal labor market structures are changing."93 One significant development has been the expansion of the so-called "contingent workers," whereby traditional employment relationships have yielded more part-time work, temporary help agencies, in-house temporary labor pools, independent contractors, and other farms of flexible labor.94 A recent study by the Economic Policy Institute (EPI) reported that "(d)ata drawn from surveys of major companies suggest that the use of contingent labor is widespread and rising."95 All types of contingent workers, noted the EPI researchers, "are frequently denied health insurance and pension coverage and have little access to promotions and better jobs."96

The rise of the contingent workforce creates an atmosphere that nurtures workplace bullying. Contingent workers become commodities to be mixed, matched, moved, and discharged in strict adherence to an employer's bottomline priorities: The chairman of Manpower, Inc., the largest single employer in the United States, remarked; "The U.S. is going from just-in-time manufacturing to just-in-time employment. The employer tells us, `I want [workers] delivered exactly when I want them, as many as I need, and when I don't need them, I don't want them here.'"97 Such arrangements discourage the creation of positive interpersonal bonds that can be forged in traditional long-term employment settings. Instead, workers are depersonalized and deemed disposable. In such a setting, they are more likely to be treated in an emotionally abusive manner.

Baron and Neuman accordingly have found a positive correlation between increased use of part-time workers and abusive work environments.98 In the words of Professor Neuman, "'We talk about a learner, meaner workplace . . . But that creates an atmosphere where [bullying] is more likely to happen . . . If a person has no vested interest, and if you believe you won't be with these people too long, you don't care what they think.'"99

The foregoing discussion has demonstrated that workplace bullying is a common practice that can inflict a heavy emotional and physical toll on its targets and has a demonstrably negative effect on employee morale, loyalty, and productivity. Furthermore, economic and social conditions facing the modern American workplace point to a continuation, if not a likely increase, in this type of behavior, The legal system should recognize that workplace bullying benefits no one; and it should make reasonable efforts to address the problem of abusive work environments: Part II of this article accordingly identifies four policy goals toward combating workplace bullying and examines the existing potential legal protections against this behavior.

II. EXISTING POTENTIAL LEGAL THEORIES TO COMBAT WORKPLACE BULLYING

Ending emotionally abusive work environments is not as dramatic a goal as it may initially seem. After all, Congress already has found that workplaces should be free from discrimination100 and from working conditions that are likely to cause death or serious physical injury.101 Surely the documented effects of workplace bullying rank with status-based discrimination and occupational safety hazards as undesirable conditions for the office or factory. Workplace bullying can be defended only by relying on outdated notions of hierarchy and the dubious assumption that "cracking the whip" on employees is good for business.

With these points in mind, Part II of this article will do two things. First, it will identify some important policy objectives that should be incorporated into any legal response to workplace bullying. Second, it will examine the existing potential legal protections against workplace bullying and assess their usefulness toward combating this behavior.

A. POLICY OBJECTIVES TOWARD CRAFTING A LEGAL RESPONSE TO WORKPLACE BULLYING

Workplace bullying has been viewed primarily as a "management" or "human resources" problem, not a legal one, except for those circumstances where it has reached extreme levels or has constituted status-based discrimination. Despite the growth of individual employment rights since the early 1960s and the accompanying assumption that successful claims should lead to the recovery of compensatory damages (including those for emotional harm), American employment law doctrine has implicitly recognized that bad bosses and difficult coworkers go with the territory of being a worker. Accordingly, identifying the priorities that should inform the creation of a legal response to workplace bullying is not an easy task. Nevertheless, the following four policy goals offer a starting place for identifying the priorities that such a framework should reflect:

1. Prevention. The most important objective is the prevention of workplace bullying. The law should encourage employers to use preventive measures to reduce the likelihood of bullying. If bullying is prevented, then workers and employers alike benefit, and litigation is reduced. In short, everyone wins.

2. Self-help. When bullying does occur, the law should protect workers who engage in self-help measures to address the problem and encourage the resolution of bullying disputes within the workplace. The law also should provide incentives to employers who respond promptly, fairly, and effectively when informed about such behavior.

3. Relief, Compensation, and Restoration. If preventive and self-help measures do not end the bullying, the legal system should provide a means of relief to bullying targets. Furthermore, the target should be allowed to return to his or her position assured that the bully has been either reformed or removed from the scene.

4. Punishment. Bullies, and employers who place bullies in a position to abuse their coworkers; should be subject to punitive measures for their actions. Punishment will have a deterrent effect and promote the use of preventive measures to discourage future bullying activity.

With these four policy goals in mind, the following discusses the potential existing common-law and statutory remedies that may be invoked to respond to workplace bullying. They include the tort of intentional infliction of emotional distress (IIED),102 employment discrimination statutes,103 the National Labor Relations Act (NLRA),104 the Occupational Safety and Health Act (OSHA),105 and free-speech protections.106

B. IIED IN EMPLOYMENT SETTINGS

The favored common-law tort theory for seeking relief against emotionally abusive treatment at work has been intentional infliction of emotional distress (IIED). Plaintiffs typically have sought IIED liability on both their employers and the specific workers, often supervisors, who engaged in bullying conduct. It is important to closely examine cases involving allegations of IIED in the workplace. If this tort is an effective legal check on workplace bullying; then additional protections, such as the one proposed by this article, would be unnecessary. The discussion in this section will establish that, to the contrary, IIED has not proven to be an effective response to workplace bullying and to abusive supervision in particular.

The Restatement of Torts, heavily relied upon by many courts for guidance in considering IIED claims, defines lIED this way: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.107

Same courts have taken the Restatement definition of IIED and broken it down into separate elements:

1. The wrongdoer's conduct must he intentional or reckless;

2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;

3. There must be a causal connection between the wrongdoer's conduct and the emotional distress; and

4. The emotional distress must be severe.108

The following discussion examines a number of cases in order to gain an understanding of modern IIED doctrine as applied to workplace disputes.109 In doing so, it will categorize workplace IIED cases based an common underlying factual scenarios-(1) cases involving "garden variety" workplace bullying; (2) cases involving status-based discrimination or harassment; (3) cases involving termination or discipline for poor job performance as a basis for the lIED claim; and (4) cases involving an employer's in-house investigatory practices. In addition, the potentially preemptive effects of workers' compensation statutes will be considered and analyzed.

1. "Garden Variety" Bullying and IIED

An analysis of case law reveals that typical workplace bullying, especially conduct unrelated to sexual harassment or other forms of status-based discrimination, seldom results in Liability for IIED. This is because the courts have tended to find workplace bullying cases lack two of the required elements for IIED liability-either that the complained-of conduct was not severe or outrageous, or that the employee did not suffer severe emotional distress.

a. Severe and outrageous conduct. The most frequent reason courts provide for rejecting workplace-related IIED claims is that the complained-of behavior was not sufficiently extreme and outrageous to meet the requirements of the tort.110 The Restatement gives courts plenty of support for such findings. Comment d to the Restatement's IIED section states that "(l)iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."111 With such a high standard suggested in the Restatement, courts have held that many typical incidents of workplace bullying fall short that standard.

The following examples demonstrate the high bar courts have set for conduct to be considered outrageous. In Turnbull a Northside Hospital, Inc."112 the Georgia Court of Appeals found that alleged conduct including "glaring at plaintiff with purported anger and contempt, crying, slamming doors, and snatching phone messages from plaintiffs hand was childish and rude," but that "it is not the type of behavior for which the law grants a remedy."113 The court found persuasive the absence of cursing, derogatory remarks about the plaintiff, and verbal and physical threats.114

In Dentonv. Chittenden Bank,115 the Vermont Supreme Court affirmed summary judgment for an employer and supervisor where the plaintiff alleged that the supervisor "embarked on an insulting, demeaning, and vindictive course of conduct toward [the plaintiff] that included ridicule, invasions of privacy, intentional interference with ability to car pool, competitiveness in after-work sports, and an unreasonable workload."116 Liability should not be extended for "a series of indignities," wrote the court, adding that "(a)bsent at least one incident of behavior" such as retaliation against the employee for whistle-blowing or an act of extreme humiliation, "incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct was outrageous."117

In Mirzaie v. Smith Cogeneration, Inc.,118 the Oklahoma Court of Civil Appeals affirmed a trial court's dismissal of an IIED claim where the plaintiff had alleged that his supervisor, among other things, yelled at him in front of other company executives, called him at 3:00 a.m. and "browbeat him for hours," required him to "needlessly cancel vacation plans," refused to allow the plaintiff to spend a day at the hospital with his wife after the birth of their son, intentionally called the plaintiffs wife by the former wife's name; and delivered the notice of termination two hours before the plaintiffs wedding. 119 There was nothing "in this working milieu," said the court, "that would elevate the recited facts to the 'outrageous' level."120

In Crowley v.North American Telecommunications Ass'n,121 the District of Columbia Court of Appeals affirmed the dismissal of an lIED claim where the plaintiff alleged "only that he was subjected to contempt, scorn and other indignities by his supervisor and an unwarranted evaluation and discharge." 122 "While offensive and unfair, such conduct is not in itself of the type actionable on this tort theory," noted the court." The pleaded facts were deemed insufficient to establish extreme and outrageous conduct by the defendant.124

Perhaps the most egregious example of IIED doctrine gone awry in workplace bullying situations can be found in Holloman v. Keadle,125 where the Arkansas Supreme Court held that the lIED doctrine requires that the defendant have prior knowledge of the plaintiffs sensitivity to emotional distress.126 Holloman, a female employee, worked for a male physician, Keadle, for two years before she voluntarily left the job.127 Holloman claimed that during this period of employment, "Keadle repeatedly cursed her and referred to her with offensive terms, such as 'white nigger,' 'slut,' 'whore,' and 'the ignorance of Glenwood, Arkansas.'"128 Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside of the home were "whores and prostitutes." 129 According to Holloman, Keadle "told her that he had connections with the mob" and mentioned "that he carried a gun," allegedly to "intimidate her and to suggest that he would have her killed if she quit or caused trouble."130 Holloman claimed that as a result of this conduct, she suffered from "stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment."131

On these pleaded facts, the Arkansas Supreme Court affirmed summary judgment for the defendant Keadle.132 The court skirted the question of whether Keadle's conduct was outrageous on its face. 133 Instead, it held that Holloman's failure to establish that Keadle "was made aware that she was `not a person of ordinary temperament' or that she was 'peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity,'" was fatal to her claim.134

The Arkansas Supreme Court twisted the IIED doctrine out of shape in Holloman. While the Restatement does recognize the significance of a defendant's prior knowledge of a plaintiff's unusual or peculiar sensitivities to emotional distress, it considers this to be a contributing factor toward determining whether behavior is outrageous, not a requirement for such a finding.135 Yet the Arkansas court apparently made prior knowledge an element of IIED. In doing so, it implicitly held that only employees of unusual susceptibility to emotional distress can meet the elements of IIED.136

Notably, when an employer's actions smack of retaliation against the employee for reporting suspected illegalities or irregularities, a court may find that a more typical bullying situation constitutes extreme and outrageous conduct.137 For example, in Vasarhelyi v. New School for Social Research,138 a New York appeals court reinstated an IIED claim brought by Marina Vasarhelyi, a former controller and treasurer for the university who had questioned the university president's handling of reimbursement matters for his personal and business expenses.139 Following her complaints and the leaking of a confidential memorandum by an unknown employee that fell into the hands of university trustees, the plaintiff was subjected to a course of conduct that included "ten hours of intense interrogation," humiliating her "for her use of English," questions about her personal relationships, and "impugning both her honesty and her chastity."140 The court found that the pleaded facts stated a claim for IIED.141

b. Severe emotional distress. Plaintiffs also can lose lIED claims because they did not show the requisite level of severe emotional distress.142 Here, too, the Restatement sets a difficult standard, because it fails to contemplate a considerable expanse of gray area between levels of emotional distress. Comment j to the IIED section states: "Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people: The law intervenes only where the. distress inflicted is so severe that no reasonable man could be expected to endure it."143 Read together, these sentences suggest that the Restatement drafters believed that unless the distress is so severe that it emotionally destroys its target, then it must be the kind of everyday "transient and trivial emotional distress" that does not call for a response by the legal system. Some very serious instances of emotional distress, therefore, are presumed to be "part of the price of living among people."

Harris v. Jones,144 a 1977 Maryland Court of Appeals decision, is a compelling illustration of the difficulty of establishing severe emotional distress. Plaintiff Harris was an assembly-line worker who suffered from a lifelong stuttering problem that gave him "great difficulty with longer words or sentences, causing him at times to shake his head up and down when attempting to speak."145 Even before the complained-of behavior began at work, he had been under long-term care for a nervous condition.146 He also was experiencing difficulties in his marriage and had an apparent drinking problem.147

During a five-month period, Harris's supervisor, Jones, approached him over thirty times, verbally and physically mimicking his speech impediment.148 A few times a week during this time period, Jones would approach Harris and tell him, "in a 'smart manner,' not to get nervous."149 As a result of this behavior, "Harris was 'shaken up' and felt `like going into a hole and hide [sic].'"150 Harris's wife said that his nervous condition worsened during this time.151

When Harris tried to transfer departments, Jones refused to grant his request.152 When Harris sought the assistance of his union representative, Jones mimicked both Harris's "shaking his head up and down" and his stuttering. 153 In response to grievances filed by Harris, on two occasions the employer, General Motors, instructed Jones to act properly.154

At trial, the jury found for Harris, but the court of special appeals reversed the judgment, holding that the plaintiff's emotional distress lacked the requisite severity to allow recovery.155 The Maryland Court of Appeals then affirmed the court of special appeals's reversal of the verdict.156 While Harris claimed that Jones's conduct was cruel and insensitive, the court found that the humiliation suffered by Harris was not, "as a matter of law, so intense as to constitute the 'severe' emotional distress required to recover" for IIED.157 "The intensity and duration of Harris'[s] emotional distress is nowhere reflected in the evidence," the court wrote, adding that Harris's family problems "were not shown to be attributable to Jones'[s] actions" and it was not established "how, or to what degree, Harris'[s] speech impediment worsened" due to Jones's conduct.158

One could argue that, in view of the court's references to the quality of the plaintiffs evidence concerning severe emotional distress,159 Harris is simply a warning to plaintiffs" attorneys about the importance of putting on a complete case. But it is more reasonable to assert that this case illustrates just how severe a plaintiff's distress must be in order for a claim to survive judicial scrutiny at both the trial and appellate levels. Harris testified that he "'felt like going into a hole and hide [sic],'"160 and the appeals court quoted from comment j of the Restatement acknowledging that "in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed." 161 The court still found that the evidence was insufficient, as a matter of law; to establish severe emotional distress. 162

In addition to IIED's failure on its face as a weapon in the fight against workplace bullying, it also suffers from infirmities brought about by its relation with other doctrines of law. In particular, problems come about by the interrelation of IIED with sexual harassment law, at-will employment, and workers compensation. These problems are discussed further below.

2. Discrimination, Harassment; and IIED

The most successful types of workplace-related IIED claims are grounded in factual allegations of severe status-based harassment or discrimination.163 Some of these cases included behavior that virtually anyone would consider extreme and outrageous. To illustrate, in Soto v. El Paso Natural Gas Co.,164 the Texas Court of Appeals held that summary judgment for the defendant was improperly entered on both statutory harassment and IIED counts where plaintiff Emma Soto alleged that she was subjected to ongoing physical and verbal conduct of a sexual and highly personal nature.165 In addition to alleging the creation of a hostile work environment rife with crude and vulgar sexual remarks, Soto, a secretary, claimed that her supervisory coworker, Tom Trujillo, ridiculed her and touched her breast following her return to work from a second mastectomy for breast cancer and reconstructive surgery.166 In fact, "she heard Trujillo referring to her as `lopsided' at a department meeting" for supervisors and administrators, who "smiled and laughed at this heartless comment."167

Sato was diagnosed as having "severe depression and post-traumatic stress syndrome as a result of the hostile environment at her workplace."168 Surely her symptoms were indicative of severe emotional distress, as they included "bouts of crying, intense feelings of helplessness and loss of control, fear of retaliation, and . . . difficulty concentrating and failing asleep."169 On these pleaded facts, the Texas appeals court found that summary judgment was improper as to both the IIED and statutory harassment claims.

A more typical example is Kanzler v. Renner,170 in which the Wyoming Supreme Court held that summary judgment for the defendant was improper where the plaintiff's IIED claim was grounded in allegations of "physical attack, persistent harassment and severe emotional injury."171 Sharon Kanzler, a police dispatcher. developed a friendship with a police officer, David Renner, who then allegedly engaged in a course of conduct that included following her, grabbing her, attacking her in a utility closet, and rubbing his crotch against her leg.172 Kanzler sought therapy as a result and "was diagnosed as suffering from depression and post-traumatic stress disorder as a result of the incidents at work."173 Despite the doctor's diagnosis, the trial court granted summary judgment for Renner.174 In holding that summary judgment was improperly entered, the Wyoming Supreme Court stated that it is "in accord with numerous jurisdictions which have determined that inappropriate sexual conduct in the workplace can-, upon sufficient evidence, give rise to a claim of intentional infliction of emotional distress."175 To do otherwise: reasoned the court; "would amount to an intolerable refusal" to recognize the severe effects of sexual harassment.176

The presence of discriminatory animus can "boost" the strength of an otherwise marginal IIED case. For example, in Taylor v. Metzger,177 the New Jersey Supreme Court held that the utterance of a single racial slur (in this instance, "jungle bunny") could, under certain circumstances, constitute extreme and outrageous conduct.178 The court explained its position by engaging in an extensive discussion of the harmful effects of racially based harassment.179 Furthermore, noted the court, the plaintiff had been diagnosed as having post-traumatic stress disorder as a result of the incident.180

Despite the holdings in Soto, Kanzler, and Taylor, many IIED claims based upon factual allegations of status-based hostile work environments or discrimination are dismissed, even where courts simultaneously uphold the statutory claims based on the same facts.181 These IIED claims are dismissed because the defendant's conduct was not deemed sufficiently extreme and outrageous, or because the plaintiff failed to demonstrate the requisite level of severe emotional distress. For example, in Hoy v. Angelone,182 the Pennsylvania Superior Court dismissed an lIED count following a jury verdict for the plaintiff. During the trial, the plaintiff testified that her supervisor "subjected her to various forms of abusive treatment, including sexual propositions, vile and filthy Ianguage, off-color jokes, physical groping, and the posting of sexually suggestive pictures," compelling her to seek psychiatric help.183 The court stated that absent an extra factor, such as retaliation for refusing sexual advances, sexual harassment does not constitute outrageous conduct to support an IIED claim.184

In Jeremiah v. Yanke Machine Shop, Incc.,185 the Idaho Supreme Court upheld a hostile work environment claim based on national origin while dismissing an IIED claim. The plaintiff presented evidence that he was subjected to "extensive demeaning name calling, which included specific epithets regarding his national origin," the placing of an "obscene green card" on his desk, receiving "an obscene employment evaluation," and having his tires deflated and his truck scratched while he was at work.186 However; the court avoided directly addressing the issue of whether the behavior was extreme and outrageous. Instead, it found that because the evidence established that the plaintiff was merely "seriously frustrated" by what had happened to him; he did not meet the requirement of severe emotional distress.187

These unsuccessful IIED cases establish that the degree of severity of conduct and harm to the plaintiff required under hostile work environment and discrimination analyses is notably lower than that required under IIED. In effect, the courts have said that conduct that is actionable under an employment discrimination theory often does not rise to the level of IIED. At least those plaintiffs who can prove status-based harassment ar discrimination still have avenues of legal relief via employment discrimination statutes. However, for plaintiffs who are not members of a protected class, or for those who are members of a protected class but cannot establish a legally sufficient link between the complained-of behavior and their protected status, IIED may be the only possible cause of action. Unfortunately for them, the thresholds for establishing extreme or outrageous conduct and severe emotional distress are simply too high for lIED to serve as a useful weapon against workplace bullying.

3. Termination; Poor Job Performance, and IIED

Employees who have claimed IIED on the sale or primary ground that they suffered emotional distress because they were terminated have found their arguments resoundingly rejected by the courts.188 The common judicial response to such claims is that termination of an employee, even if it appears to be unjust, is not sufficiently extreme or outrageous to meet the requirements of IIED.189 This response is understandable. Terminating employees is an everyday fact of life in a market economy, especially one in which the rule of at-will employment is dominant. Losing a job can be even more traumatic than experiencing day-to-day bullying. If, however, all unwanted terminations were, ipso facto, actionable as IIED claims, employers would be handcuffed in making legitimate personnel decisions and the courts would be swamped. Rather than allowing IIED to be used as a back-door route around the at-will rule,190 it is more desirable to give employees some type of direct, legal protection against unjust dismissal.

Similarly, demotions and warning letters based upon poor job performances are likely to be outside the reach of IIED.191 Any type of demotion, formal warning, or other performance-based discipline may cause severe emotional distress, but such actions have long been within employers' normal bounds of discretion. Although it may be appropriate to re-examine these boundaries, collective bargaining and other farms of worker action may be better forums for this than a narrow application of the IIED doctrine.

More disturbing, however, is the judicial response to legal challenges to methods of termination, especially the so-called "exit parade"--the name for the popular practice of terminating employees by escorting them out of the office or plant by company or security personnel, sometimes in view of their coworkers.192 IIED claims brought in response to such practices have had little success because courts have found the employer's behavior was not extreme and outrageous.193 These holdings demonstrate one of the ironic difficulties in meeting the elements of IIED. If the complained-of behavior is commonplace, then it is not beyond the hounds of decency tolerated by society. The likely humiliation of being paraded out of the office under guard or noticeable supervision, especially under the watch of coworkers, is, in effect, a degradation ceremony. It is similar in nature, though admittedly not in degree, to archaic military disciplinary proceedings where transgressors are marched past other soldiers under armed guard to face their punishment. Yet in the case of the dismissed employee, her sole "transgression" may have been being on the payroll at a time when profits were not high enough.

4. In-House Investigations and IIED

Courts generally allow employers to conduct reasonable investigations of possible illegal activity without incurring lIED liability.194 For example, in Randall's Food Markets v. Johnson,195 the Texas Supreme Court held that merely asking "a management-level employee to explain a report of wrongdoing" did not constitute outrageous conduct, for this was within the employer's Legal right to investigate a credible allegation of employee dishonesty.196 However, this privilege may not apply where the employer subjects the employee to threatening or coercive interrogation. To illustrate, in Tandy Corp. v. Bone,197 the Arkansas Supreme Court found that a jury should hear an IIED claim where, during the course of an investigation into internal theft, a company's security personnel subjected an employee to curses and threats and refused to allow him to take Valium that had been prescribed by a doctor.m18 The court suggested that liability may incur if the employer was aware of the employee's medical condition.199

5. Workers' Compensation

Workers' compensation is a no-fault system that provides limited benefits to workers who suffer accidents in the course of and arising out of their employment.200 A typical claimant receives "usually around one-half to two-thirds of [her] average weekly wage" and medical expenses.201 An employer "is required to secure its liability through private insurance, state-fund insurance in some states, or 'self-insurance.'"202 It is particularly important to consider whether workers' compensation laws can serve as an adequate check on workplace bullying, as jurisdictions are split on whether workers' compensation is the exclusive remedy for intentional, work-induced emotional distress injuries.203

The state of the law in Massachusetts illustrates the relationship between IIED and workers' compensation. In its 1996 decision in Green v. Wyman-- Gordon Co.,204 the Massachusetts Supreme Judicial Court held that an employee's IIED claim against her employer was "barred by the exclusivity provision of the workers' compensation act."205 The case involved a plaintiff who claimed she had been sexually harassed during a three-year period that ultimately concluded in her termination of employment.206 She brought a variety of statutory and common-law claims against hey employer, including an IIED count.207

The exclusivity provision of the Massachusetts workers' compensation law states, in pertinent part, that an "employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover damages for personal injuries . . . ."208 Furthermore, the statute covers intentionally inflicted emotional harm.209 Therefore, reasoned the court, Green's injuries would be covered by workers' compensation regardless of whether the employer was directly ar vicariously liable for her harm.210

Two years after Green, in Brovurr v. Nutter; McClennen & Fish211 the Massachusetts Appeals Court considered whether the exclusivity clause of the workers' compensation statute applied to IIED claims against coemployees.212 The court held that, although a secretary's IIED claim against her law firm employer was barred by the workers' compensation act pursuant to Green and other previous decisions, she nevertheless could maintain an IIED claim against theindividual attorney, McLaughlin, who had subjected her to the offending behavior.213 Coemployees, noted the court, "are not immunized from suit by the workers' compensation act for tortious acts which they commit outside the scope of their employment, which are unrelated to the interest of the employer."214 Consequently, the trial court erred by dismissing the plaintiff's IIED claim before she could demonstrate "that McLaughlin was acting neither within the course of his employment nor in furtherance of his employer's interest."215

The state of the law in Massachusetts demonstrates that workers' compensation can serve to limit the legal options available to bullied employees. As the preceding discussion explains, the statute precludes an IIED claim against the employer, and it permits such a claim against a coworker only if the individual was acting neither within the course of his employment nor in furtherance of his employer's interest. Although an employee can receive double workers' compensation payments for an employer's "serious and willful misconduct,"216 she must first demonstrate that she has been partially or fully incapacitated because of the offending actions.217

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.

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.

C. TITLE VII HOSTILE WORK ENVIRONMENT DOCTRINE223

Title VII of the Civil Rights Act of 1964(224) prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin."225 The development of hostile work environment doctrine is relevant to the analysis of workplace bullying far two reasons. First, Title VII itself may provide same legal remedies to workers who have been bullied on the basis of their protected status, and it is important to determine whether that potential to protect workers from bullying has been realized. Second, as this article will detail in Part iII below, Title VII sexual harassment doctrine226 provides an extremely useful framework for articulating a broader, status-blind; hostile work environment standard that responds more effectively to the problem of workplace bullying.

1. The Evolution of Hostile Work Environment Doctrine and the Problem of "Disaggregation"227

In Mentor v. Vinson,228 the Supreme Court held that a hostile work environment is one in which the workplace is permeated with "discriminatory intimidation, ridicule, and insult" so severe or pervasive "that it alter[s] the conditions of the victim's employment and create[s] an abusive working environment."229 The Court affirmed this standard in Harris v. Forklift Systems, Inc.,230 promulgating a two-part test to determine whether a hostile work environment is present under Title VII.231 First, the complained-of conduct must create "an environment that a reasonable person would find hostile or abusive."232 Second, the victim must "subjectively perceive the environment to be abusive" in order to satisfy the requirement that the conduct "actually altered the conditions of the victim's employment."233

In assessing whether a hostile work environment exists, the facts must be examined in their totality.234 The frequency and severity of the discriminatory conduct, whether the conduct was "physically threatening or humiliating; or a mere offensive utterance," and whether the conduct "unreasonably interfere[d] with an employee's work performance" are among the factors to be weighed.235 In formulating this approach, the Court's intention was to create "a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury."236 The Court observed that

Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance; discourage employees from remaining on the job, or keep them from advancing in their careers.237

The supreme Court further defined the contours of hostile work environment doctrine in Oncale v. Sundowner Offshore Services, Inc.238 Oncale involved an oil rig worker who "was forcibly subjected to sex-related, humiliating actions against him" by his supervisor and coworkers.239 The Court held that the plaintiff could maintain a Title VII claim based on same-sex harassment.240 In doing so, the Court reiterated its holding in Harris that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'"241 There is a difference between a coach smacking a professional football player on the buttocks and a coach doing the same to his secretary; reasoned the Court, adding that "(t)he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed."242

Although the Court has recognized that discrimination due to the creation of a hostile work environment can be on grounds of "race, gender, religion, or national origin,"243 the development of the hostile work environment doctrine, and most of the public attention given to it, has been driven largely by questions of sexual harassment. In an important article published in 1998, Professor Vicki Schultz analyzed the evolution of sexual harassment law under Title VII and concluded that "the most prominent feature of hostile work environment jurisprudence" is the "disaggregation of sexual advances and other conduct that the courts consider 'sexual' in nature from other gender-based mistreatment that judges consider nonsexual."244 As a result, "only overtly sexual conduct counts toward establishing hostile work environment harassment and . . . nonsexual conduct must be considered-if at all-as a separate form of disparate treatment."245 This nonsexual conduct, Schultz adds, may be "too remotely related to a tangible job benefit to constitute disparate treatment."246 Two decisions discussed by Schultz247 illustrate the impact of disaggregation-Walker v. Sullair Corp.248 and Turley v. Union Carbide Corp.249

First, in Walker, a district court held for the employer in a hostile work environment claim in which the plaintiff offered "na proof of an unwelcome touching or fondling" and "no evidence of a workplace `pervaded with sexual slur, insult -and innuendo.'"250 Instead, the alleged conduct "included close monitoring of the plaintiff, monitoring of personal phone calls, public reprimands for poor job performance and various other nonsexual harassment" by a superior with whom she once had a consensual sexual relationship.251 A hostile work environment, reasoned the court, exists only "where there are sexual advances, fondling or a sexually suggestive workplace atmosphere that the claimant finds unwelcome."252 This would include sexual slurs, insults, and innuendo, verbal sexual harassment, and "'extremely vulgar and offensive sexually related epithets.'"253

Second, in Turley, a district court granted the employer's summary judgment motion on the plaintiff's sexual harassment count where the plaintiff alleged that she was being harassed "in a nonsexual manner."254 The plaintiff claimed that her foreman was "'picking on me all the time' " and that he "treated her differently than the male employees."255 However, because the plaintiff "was not subjected to harassment of a sexual nature," the court found that she had not pleaded facts sufficient to state a claim for sexual harassment.256 At best, the court said, the plaintiff had made out a case for disparate treatment.257

In sum, disaggregation severely limits the use of hostile work environment doctrine to combat workplace bullying. "Unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature"258 certainly constitute forms of bullying; however, so Can nonsexual, yet possibly discriminatory types of conduct, such as the behavior alleged by the plaintiff in Walker.259 Indeed; denying women "the training, information, and support they need to succeed on the job" and engaging in "threatening and alienating acts" that undermine women's confidence, sense of belonging, and job proficiency not only constitute sexual harassment,260 but also sound a lot like workplace bullying: Only sexual behavior, however, will be considered under hostile work environment analysis.

The most troubling scenario occurs when bullying includes both sexual and nonsexual behavior. When courts consider sexual conduct under hostile work environment analysis and nonsexual (yet discriminatory) conduct under a separate disparate treatment analysis, the alleged misconduct will never be considered in its totality. Bullying, as the discussion in Part I makes clear, is best understood only when viewed in its totality. The unfortunate individual who is the target of both sexual and nonsexual bullying will not emotionally compartmentalize what has happened to her into separate harms; disaggregation, however, will force that artificial distinction on her and, in the process; diminish the seriousness of what happened to her in the eyes of the law.

2. Employer Liability

The evolution of the prima facie hostile work environment claim informs our understanding of the extent to which the Title VII offers protections against workplace bullying grounded in sexually harassing conduct. In addition, one must examine how Title VII treats employer liability to fully understand how employers try to prevent and respond to abusive work situations. In two companion cases decided in 1998, Burlington Industries, Inc. v. Ellerth261 and Faragher v. Boca Raton,262 the Supreme Court clarified the standard for holding an employer liable when a supervisor creates an actionable hostile work environment for an employee in violation of Title VII.

In both cases, the Court held that an "employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."263 The Court then promulgated a two-element affirmative defense available to employers in instances where no tangible employment action264 was taken: First, the employer must establish that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."265 Second, the employer must establish that the "plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."266

The Court looked in large part to common-law agency principles in developing this analytical framework. Although traditional master-servant principles impose liability upon the master for the tortious acts of servants "'committed while acting in the scope of employment,'"267 the "general rule is that sexual harassment by a supervisor is not conduct within the scope of employment."268 However, even where conduct is outside the scope of employment, employer liability may be imposed where the employee "'was aided in accomplishing the tort by the existence of the agency relation.'"269 Known as the "aided in the agency relation standard," this provision supports the finding that any "tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer."270

The Court recognized that the application of the aided in the agency relation standard is less clear when the hostile work environment "does not culminate in a tangible employment action."271 It noted, however, that considerations of public policy underlying Title VII also should come into play. These include the importance of encouraging employers to design "antiharassment policies and effective grievance mechanisms," as well as placing limits on employer liability to "encourage employees to report harassing conduct before it becomes severe or pervasive."272 Imposing vicarious liability, even in the absence of a tangible employment action, and the above-stated affirmative defense hold promise of advancing the court's policy goals.

The Ellerth and Faragher decisions have had a dramatic impact can company policies and procedures regarding both actionable harassment and the advice that lawyers provide to their clients. an the heels of these decisions, many companies quickly moved to develop stronger anti-harassment policies and more effective procedures for handling employee complaints of harassment.273 Lawyers, executives, and human resources personnel all are becoming more involved in designing and implementing these policies and procedures.274

3. Conclusion

Hostile work environment doctrine could achieve all four policy goals of prevention, self help, compensation, and punishment for combating workplace bullying, at least when the misconduct is based upon the target's protected status. The Ellerth and Faragher decisions provide ample economic incentive for employers to engage in preventive measures and to respond effectively to complaints about status-based harassment. Internal self-help is also encouraged, as federal court decisions have recognized that internal reporting of discriminatory treatment is protected under Title VII's antiretaliation provision.275 Successful plaintiffs are provided with compensatory damages,276 and particularly egregious transgressors can be subject to punitive damages, thereby satisfying the goals of compensation and punishment.277 Throughout the process, parties may engage in negotiations to settle claims.

Of course, as a legal means to coW bat workplace bullying, hostile work environment doctrine is limited by the fact that Title VII covers only certain protected groups. In addition, it is the judicial adoption of disaggregation that most diminishes Title VII's ability to respond to workplace bullying. When only conduct of a sexual nature is considered under hostile work environment analysis, other types of nonsexual behavior that collectively may constitute workplace bullying will be legally marginalized.

D. AMERICANS WITH DISABILITIES ACT (ADA)

The ADA prohibits, in pertinent part, employment discrimination "against a qualified individual with a disability because of the disability."278 Potentially, the ADA can serve as a response to workplace bullying where the offending behavior creates or exacerbates a recognized disability. Research conducted by Professor Susan Stefan279 has revealed that ADA claims by employees involving psychiatric disabilities tend to fit into one of four common profiles:

1. Employees who had worked satisfactorily for an extended period of time until the appointment of a new supervisor and whose claims clearly arose from escalating interpersonal difficulties with their new supervisor.

2. Employees whose psychiatric disabilities arose from other work environment issues, including women who were sexually harassed; individuals subjected to hostile work environments as it result of disability; gender, race, or sexual preference; whistleblowers; and people whose disabilities were related to other claims of employer abuse or unfair treatment.

3. Employees whose disabilities were related to increasing stress, increased hours on the job, or the demands of new positions or new responsibilities.

4. Employees disciplined for misconduct, usually sexual harassment, who claimed that their behavior resulted from a mental disability, or that being disciplined showed that their employer perceived them as being mentally disabled.280

Stefan's findings are valuable for two reasons. First, they validate the behavioral research ors workplace bullying by demonstrating that abusive work environments can lead to mental disabilities in its targets. Second, they demonstrate that the ADA is a potential legal weapon against workplace bullying.281

However, as Stefan further explains, many employees "are losing their ADA cases because abuse and stress are seen as simply intrinsic to employment, as invisible and inseparable from conditions of employment as sexual harassment was twenty years ago."282 Furthermore, even if the ADA is interpreted to make it more responsive to employees with psychiatric disabilities created by abusive work environments, a bullied employee typically will not invoke it until she suffers from a recognized disability. Therefore, the ADA enters the fray at too late a stage in the escalation of an abusive work environment to prevent the harms of workplace bullying. This is in sharp contrast to Title VII hostile work environment doctrine, which acknowledges that harassing conduct that "does not seriously affect employees' psychological well-being : . , can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers."283

Accordingly, the nature of the ADA limits its use as a weapon combating workplace bullying, especially when measured against the four policy goals of prevention, self-help, compensation, and punishment, Because liability does not even potentially begin to incur unless an employee is deemed "disabled," the ADA does not serve as an effective legal prod encouraging employees to develop policies and training programs to prevent abusive situations and to respond fairly and promptly when they are alleged to have occurred: In addition, targets of workplace bullying must reach an acute psychiatric stage in order to invoke the statute; when they do, they must be willing to claim that they suffer from a mental disability. thereby running the risk of social and professional stigmatization: Employees who reach this stage may not be in a very good position to exercise self-help measures. Obviously, the goals of compensation and punishment are seriously frustrated when the statute offers potential relief only to the most severely bullied targets.

The degree to which the Supreme Court's holding in Sutton v. United Air Lines, Inc.284 on what is "disabled" within the meaning of the statute will limit the application of the ADA to workplace bullying is unknown. The ADA defines "disability" as:

(A a physical ar mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.285

In Sutton, both plaintiffs were denied employment as commercial pilots with United Airlines because they failed to meet the carrier's minimum vision requirement of an "uncorrected visual acuity of 20/100 or better."286 In considering whether the plaintiffs had a physical impairment that substantially limited a major life activity, the Court said that measures taken to mitigate a condition "must be taken into account."287 The fact that the plaintiffs could undertake mitigating measures in the form of corrective lenses that adjusted their visual acuity to 20/20 caused the Court to conclude that they had "not stated a claim that they are substantially limited in any major life activity."288

If the use of a corrective measure precludes an individual from claiming that he has a disability within the meaning of the ADA, then the application of the statute to abusive work situations that create or exacerbate psychological disorders may be severely limited. Many such conditions are treatable with medication, such as the use of prescription drugs to treat schizophrenia. The majority in Sutton responded to this type of argument by pointing out that "one whose high blood pressure is 'cured' by medication may be regarded as disabled by a covering entity,"289 thereby possibly falling within the statutory definition. The Court urged that the central inquiry is "whether the limitations an individual with an impairment actually faces are in fact substantially limiting."290

The ADA has built-in limitations as a weapon in the fight against abusive work environments. In addition, the consideration of what is a disability in Sitton casts further questions on the viability of the use of the ADA for this purpose_ In short, while the ADA offers some promise as a legal response to abusive work environments, it should not be the first line of legal defense against workplace bullying.291

E. NATIONAL LABOR RELATIONS ACT (NLRA)

The NLRA creates rights and responsibilities that can serve as a check on workplace bullying in two ways.292 First, the NLRA grants employees the "right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing."293 If the presence of a union has the effect of discouraging workplace bullying;294 then this statutory right to form and join unions is an important means toward that end. In fact, in unionized sites that have experienced problems with workplace bullying, a union could recommend some type of antibullying provision for the collective bargaining agreement, conceivably mirroring the new cause of action proposed in Part III. Second, the NLRA grants employees the right to engage in concerted activity for "mutual aid or protection," regardless of whether they are union members.295 This provision potentially protects workers who collectively address workplace bullying, especially abusive supervision.

In its current form, however, the NLRA is a limited ally in the battle against workplace bullying. Some of the main impediments are discussed below.

1. Jurisdictional Limitations

The NLRA's jurisdictional requirements place severe limits on the types of workers who are statutorily protected to organize and join unions and engage in concerted activity. Expressly excluded from the NLRA's protections are supervisors, independent contractors, domestic and agricultural workers, and family member employees.296 In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.297 One study has concluded that approximately fifty million workers, representing forty-three percent of the workforce, are exempted from exercising rights granted in the NLRA.298

The exclusion of supervisors and managers from statutory coverage is particularly disturbing in this context, for such individuals are certainly not immune from workplace bullying. Nevertheless, for example, a group of assistant managers who have been treated abusively by their supervisor would not be protected by the NLRA's concerted activity provision in the event that they banded together to confront such behavior. Similarly, independent contractors are not covered by the statute, even though as members of the so-called contingent workforce, they may be especially vulnerable to abusive treatment.

The Supreme Court's decision in NLRB v. Health Care & Retirement Corp. of America299 offers a particularly helpful illustration of how the jurisdictional limitations of the NLRA preclude collective action by those who are in an occupation in which bullying is common. The Court found that nurses who supervised nurse's assistants were "supervisors" under the NLRA and, therefore, could not claim protection for collective bargaining ar other concerted activities.300 In view of studies suggesting that verbally abusive behavior by physicians toward nurses is commonplace,301 it is unlikely that many nurses feel like autonomous "bosses" simply because they may supervise the work of those who are a rung lower on the organizational chart. Yet many nurses may be excluded from the NLRA's protections by that mere fact.

2. Concerted Activity

The concerted activity provision of the NLRA offers potential protection of employees who undertake collective measures to oppose workplace bullying. Section 7 of the NLRA provides that employees have the right "to engage in . . . concerted activities for the purpose of . . . mutual aid or protection."302 Employers may not "interfere with; restrain, or coerce employees" who are exercising this right.303 This provision applies to all workers who meet the statutory definition of "employee," not just those who are union members.304 Potentially, groups of employees, regardless of whether or not they are union members, could collectively address problems of work abuse and approach their employer with their concerns and ideas. Such activity would be protected under Section 7 because it would be "concerted" for the purpose of "mutual aid or protection."305

Particularly for nonunion employees, however, the concerted activity provision of section 7 is limited as a legal weapon against specific occurrences of workplace bullying. Recall from the discussion of LIED cases that many, if not most, instances of work abuse involve an individual bully and an individual target, often in a supervisor-subordinate relationship. In such a situation, the target's nonlitigious choices include doing nothing, confronting the bully, reporting the objectionable behavior to the bully's superior, or in some way consulting and enlisting the assistance of her coworkers. Of these choices, only the last one is even potentially protected under the prevailing interpretation of section 7, for the other choices involve an individual, acting alone, solely on her own behalf.306 3. Time for a Reality Check?

Some scholars who are supportive of workers have lamented the de facto substitution of individual employment rights for collective bargaining rights over the past three decades. They argue with good justification that judicially enforced individual rights lack the political and economic clout of collective action in advancing the overall lot of workers.307 Nevertheless, a reality check is in order: Even in the supposed heyday of the American labor movement, no more than 35.5% of the nonagrieulatural American workforce was unionized.308 Although the new leadership of the AFL-CIO has made union organizing a top priority,309 business and labor analysts alike acknowledge the difficulties in reviving union membership rolls.310 Therefore, even though the National Labor Relations Act and the existence of a collective bargaining relationship can combine to create a workplace culture and legal protections that advance the policy goals of prevention, self-help, compensation, and punishment with regard to workplace bullying, in truth; only a fraction of the workforce stands to benefit.

Furthermore, the right of every worker to be treated with a minimal degree of dignity is sa basic that it should not be dependent upon collective action for its existence and enforcement. Compensation, benefits, work rules, and job security have been traditional topics of negotiation between employees and employers. The right to be treated with basic dignity, however, falls into a category that could be labeled "minimal floor rights," joining the right to be free from status-based discrimination, the right to sale working conditions, and the right to a minimum wage.

F. OCCUPATIONAL OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)

The federal Occupational Safety and Health Act of 1970 was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources."311 Congress had determined that "personal injuries and illnesses arising out of work" placed substantial burdens upon the American economic system "in terms of lost production, wage loss, medical expenses, and disability compensation payments."312 The main concern of OSHA was the prevention of physical injuries, especially those occurring in the industrial sector, and "OSHA's original emphasis on manufacturing and construction sites" remains the primary focus of the federal agency charged with its enforcement, the Occupational Safety and Health Administration.313

OSHA's general duty clause states, "Each employer. . shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its) employees."314 The most extreme effects of workplace bullying-high blood pressure, heart attacks; and the like-potentially may meet the standard of "serious physical harm" within the meaning of the statute. However; even the most cursory examination of the statute and its underlying regulations leads one to conclude that the entire regulatory framework has been designed to respond to physical hazards in the workplace; particularly those in the industrial sector;315

Even if certain types of workplace bullying fall within the regulatory reach of OSHA, this statute does not satisfy the policy goals of prevention, self help, compensation, and punishment. Adding workplace bullying to the enforcement agenda of a regulatory agency that already is severely understaffed would guarantee enforcement difficulties, especially because it is patently unrealistic to believe that OSHA inspectors would be able to conduct adequate investigations of workplace bullying.316 In addition, because OHSA does not provide far a private right of action,317 bullied employees would depend solely on the governwent to invoke the statute's protections. Finally, the limited employer sanctions provided by OSHA would provide little economic incentive for employers to take preventive action. For example, a "willful" violation of OSHA can result in a fine of no more than $70,000 and as little as $5,000.318

G. SPEECH PROTECTIONS

In many instances, the best way to deal with a workplace bully is to stand up to him.319 The typical bully often is a coward underneath, so if the target of his wrath directly confronts him, he may stop the offending behavior. Legal protections for targets who choose to confront their tormentors would, at the very least, satisfy the policy goal of self-help and could help to shape a workplace culture that discourages bullying. The problem is that the employer-bully can fire the employee-target who confronts him. Unfortunately, even if we assume that confronting the bully would be construed legally as a form of speech, the law offers few protections to targets who engage in this brand of self-help.

Public employee speech is protected by the First Amendment only when it addresses matters of public concern.320 Typical responses to most forms of everyday bullying would fall short of that standard. Private employee speech enjoys no federal or state constitutional protection at all; private employers are not "state actors" and therefore are not subject to the protections of constitutional free-speech provisions.321 Only one state, Connecticut. provides general statutory protection for employee speech,322 but the proper breadth of that protection is an unsettled issue among the state's courts.323 Finally, unless the bullying behavior is related to status-based discrimination, one who complains of such behavior could not claim the protections of antiretaliation or whistleblower provisions that are standard provisions of many employment discrimination laws.324

III. A PROPOSED LEGAL RESPONSE TO WORKPLACE BULLYING: STATUS-BLIND HOSTILE WORK ENVIRONMENT PROTECTION

A. THE NEED FOR STATUS-BLIND PROTECTION AGAINST WORKPLACE BULLYING

[W]hat bothers people about abusive workplace conduct, after all, is not the fact that it may be discriminatory but that it is abusive in the first place . . [I]f a work environment is sufficiently abusive, it should not save an employer from liability that the abuse is dispensed without regard to race, sex or national origin.325

Many will argue that there is something particularly hurtful about being harassed simply because of one's race, sex, or national origin, but there also is considerable logic in using a proscription against harassment regardless of the target's status as a starting place in providing a right to be treated with minimal dignity at work. As Part I of this article explained, the Literature on workplace bullying shows that it can inflict severe emotional injuries on its targets, quite similar to those suffered by victims of actionable sexual harassment. Employers also suffer from workplace bullying, as it can have terrible effects on employee morale, loyalty, and productivity. Unfortunately, work abuse is common, and economic and social conditions point toward a likely increase in such behavior.

If workplace bullying is so bad, so commonplace, and so likely to increase, public policy should respond to it. However, Part II of this article has demonstrated that the existing legal responses to workplace bullying are inadequate. The requirements of IIED set too high a threshold for even serious instances of work abuse. Title VII hostile work environment doctrine, by its very nature, is limited to status-based harassment, and, in the case of sexual harassment, the practice of many courts to disregard nonsexual harassing behavior means many bullying situations will not be examined in their entirety. The ADA requires that a bullied employee show that she was disabled. The NLRA jurisdictionally excludes millions from its protections and offers little protection to the individual bullied employee. The OSHA, among all the potentially applicable protective statutes for workers, is the weakest candidate to combat workplace bullying. Finally; few employees enjoy the kind of comprehensive speech rights in the workplace that would protect their direct responses to abusive coworkers.

B. INTENTIONAL INFLICTION OF A HOSTILE WORK ENVIRONMENT

The best legal response to workplace bullying that advances the four policy goals of prevention, self-help, compensation, and punishment is the statutory adoption of a new theory that I will call "Intentional Infliction of a Hostile Work Environment." The new cause of action could be defined this way:

In order to prove intentional infliction of a hostile work environment, the plaintiff must establish by a preponderance of the evidence that the defendant employer, its agent, or both, intentionally subjected the plaintiff to a hostile work environment. A hostile work environment is one that is deemed hostile by both the plaintiff and by a reasonable person in the plaintiff's situation. Employers are to be held vicariously liable for hostile work environments intentionally created by their agents.

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.

4. Did the aggressor have prior knowledge of a target's emotional vulnerability and needlessly attempt to exploit that vulnerability? Consistent with the rationale behind IIED doctrine, this factor recognizes that mean-spirited, superfluous behavior designed to inflict emotional distress on another is especially objectionable.

5. In addition, the proposed cause of action extends an employer's vicarious liability to the offending behavior of all employees, not just supervisors. Recall that the Supreme Court imposed vicarious liability on employers for the sexually harassing conduct of their supervisors by relying on the "aided in the agency relation standard." The offending employee was "'aided in accomplishing the [harassment] by the existence of the agency relation.'"332 It follows that the standard can be applied to any employee, not just supervisors. Because workplace bullying can be perpetrated by coworkers, or even subordinates who, in turn, are "agents" of the employer, it makes sense to extend vicarious liability to include the actions of all employees. In short, the proposed theory takes the doctrine of hostile work environment under Title VII, removes the need to establish status-- based discriminatory treatment, and adds in elements of the IIED doctrine.

The rationale behind Title VII hostile work environment doctrine offers compelling reasons to extend these protections to all workers, regardless of gender, race, or any other characteristic. As the Supreme Court has recognized in examining hostile work environment doctrine under Title VII, this standard strikes a balance "between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury."333 By contrast, the dual elements of extreme and outrageous conduct and severe emotional distress under IIED require that the target be emotionally destroyed in order to survive even a summary judgment motion. It is noteworthy, as the discussion above points out, that in many cases where both statutory harassment and IIED claims are brought in response to the same conduct, the harassment counts survive while the IIED counts are dismissed. This confirms that hostile work environment is an easier standard to meet than LIED. From the standpoint of public policy, this may be desirable, for, as the Supreme Court has suggested in a Title VII context, statutory protection should "come into play before the harassing conduct lead[s] to a nervous breakdown."334

C: AN EMPLOYER'S AFFIRMATIVE DEFENSE: PREVENTIVE AND CORRECTIVE MEASURES

The prima facie cause of action outlined immediately above makes employers strictly liable for the abusive behavior of their employees. This alone provides employers with a strong incentive to prevent workplace bullying. However, the law also should reward proactive attempts to prevent bullying and to effectively address allegations that bullying has occurred. Accordingly, under this proposed legal framework, when an employer is sued for the acts of an agent that allegedly created a hostile work environment, it shall be an affirmative defense for the employer only if

(a) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,

(b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.335

The defense is not available when the employee's "harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."336 A constructive discharge-a "voluntary termination of employment by an employee" because working conditions were such that "an objective, reasonable person would find [them] so intolerable that voluntary termination is the only reasonable alternative"337-should be considered a "discharge" for purposes of this standard.

This defense, drawn almost verbatim from the Supreme Court's opinions in Ellerth and Faragher, advances the policy goals outlined above for the prima facie cause of action. First, it gives employers considerable economic incentive to engage in preventive activities; such as instituting proactive policies that discourage workplace bullying, selecting emotionally balanced and fair-minded employees,338 and developing effective employee review procedures, especially for supervisors. In addition, employers would have strong reason to develop effective and fair-minded procedures for handling complaints of workplace bullying and applying corrective measures where necessary. This, in turn, would help to create an atmosphere where employees are encouraged to make good-faith reports of workplace bullying, advancing the policy goal of employee self-help.

This defense also recognizes that employers should be able to avoid liability when they have made reasonable efforts to prevent and correct abusive behavior and the target suffers no tangible job action. Lf employers establish effective policies, and both they and their workers follow them, then most bullying problems can be resolved "in house," without costly, time-consuming, and disruptive litigation that carries the added likelihood of inflicting more emotional distress on the complainant. In sum, the prima facie cause of action and this affirmative defense will combine to reward strong preventive measures, effective responses, and internal resolution of bullying complaints. This combination also promotes a certain humanistic bottom line: It will serve as a powerful economic incentive for employers to rid themselves of abusive employees, particularly those in supervisory positions, who cannot treat their coworkers with a minimal degree cif dignity.

Finally, the defense does not release the actual perpetrator from liability. An individual supervisor or coworker could still be sued, regardless of the employer's responses and whether the actionable behavior resulted in a tangible employment action.339 As such, the policy goals of compensation and punishment would be advanced even when the employer is properly excused from liability.

D. OTHER DEFENSES

Some of the court decisions on workplace IIED claims are instructive for identifying what defenses should be available to defendants under the proposed theory. First, it should be an affirmative defense that the complained-of behavior is based solely upon an otherwise legal termination, demotion, disciplinary action, or job evaluation.340 After all, the suggested cause of action is not designed to serve as a "backdoor" wrongful discharge law or to limit an employer's ability to make everyday personnel decisions. Second, it should he an affirmative defense that the complained-of behavior involved a reasonable investigation about potentially illegal activity.341 This, too, falls within the realm of an employer's normal and necessary prerogatives.

E. DESIGNING THE STATUTORY STRUCTURE

1. Forum

The proposed statute could be enacted at either the federal or state level. A federal statute obviously would provide the most comprehensive and uniform protection. In addition, its passage and implementation could help to raise consciousness about the detrimental effects of workplace bullying.

2. Relief

In terms of relief for successful plaintiffs, federal employment discrimination statutes provide useful guidance. In general, these statutes allow for back pay, front pay, reinstatement, punitive damages, and injunctive relief.342 The proposed statute should incorporate these standards in order to achieve the policy goals of compensation and punishment; as well as to provide an economic incentive for employers to implement effective preventive measures and to respond fairly and promptly to employees' complaints.

3. Private Cause of Action

It is common for other protective employment statutes to be enforced and adjudicated by an administrative agency, such as the U.S. Department of Labor or the Equal Employment Opportunity Commission. One could argue that this type of arrangement would be desirable for the proposed statute, as a single agency could develop expertise interpreting the statute and promulgating regulations. Under such structures, complainants usually have the option of being represented by either private counsel or the applicable enforcement agency: For the complainant of modest or little means, the latter option provides access to legal representation.

However, in order to ward off frivolous claims, it may be preferable to procedurally limit this proposed cause of action to a private lawsuit. The Equal Employment Opportunity Commission and its state equivalents are generally obligated to consider every claim. Potential complainants who are not represented by private counsel can have their cases investigated and, where appropriate, prosecuted by commission attorneys. This concededly invites weak claims by individuals who have little economic disincentive if they are unsuccessful. Because the proposed cause of action does not require that a plaintiff be a member of a certain protected class, the population of potential litigants includes virtually anyone who is an employee. By limiting the proposed cause of action to a private lawsuit, the plaintiffs' bar would serve a valuable gatekeeping function. A plaintiffs' attorney presumably would be reluctant to bring a weak ease, especially if she or he is representing the client on a contingency fee basis.

F. OTHER CONSIDERATIONS

1. The Relationship of the Proposed Protection to Status-Based Harassment Laws

Although the proposed protection draws heavily from Title VII hostile work environment doctrine, it is meant to stand on its own.343 However, the enactment of a status-blind hostile work environment law could specially benefit those who are targets of status-based harassment as well. Recall that the discussion of Title VII hostile work environment doctrine above explained the way in which federal courts disaggregate factual allegations of sexual conduct from those of nonsexual conduct.344 Sexual conduct is considered under hostile work environment analysis, but nonsexual conduct is considered under disparate treatment theory. Where an employee is the target of both sexual and nonsexual conduct, the effect of disaggregation is to dilute the gravity of the offending behavior, thereby ensuring that it will never be considered in its totality. The theory proposed here would have the opposite result. A plaintiff would be able to include all of the bullying behavior in constructing a prima facie case. Consequently, a trier of fact would be able to assess the allegedly offending conduct in its entirety.

In addition; a statute along the lines proposed here could invite a reconceptualization of harassment based upon protected-class membership. A new paradigm could emerge that starts with a status-blind proscription on harassment, but then enhances damages where it is shown that the offending conduct was motivated by the plaintiff's membership in a protected class. Under this approach, the creation of a hostile work environment on the basis of sex or race could be seen as a form of "hate bullying," similar to the way in which some "hate crime" statutes provide for enhanced sentences for defendants whose violent criminal acts were motivated by their victims' protected status.345

The relationship between tort law and sexual harassment law is thoughtfully explored by Professor Mark McLaughlin Hager, who argues that when it comes to responding to sexual harassment, we need more tort law in the workplace, not less.346 Hager's central point is that "harassment should be met with tort suits against the actual perpetrators, not discrimination suits against employers." 347 Hager indicates that although torts such as assault, battery, and invasion of privacy may be applicable to workplace settings, IIED "is the cause of action most broadly pertinent" to his analysis.348 Although a full response to Hager's analysis of the paradigmatic difficulties of equating harassment with discrimination under Title VII349 is beyond the scope of this article, several of his assertions are particularly relevant to the discussion here.350

Hager criticizes Title VII hostile work environment doctrine on the ground that it "requires a morally and legally untenable distinction between discriminatory and nondiscriminatory harassment," claiming that it "is doubtful that sexual harassment is per se more wrongful and harmful to any particular victims than any other kind of harassment."351 However, discrimination against women, people of color, and other groups constitutes a historic, ongoing problem of concern among American society, and harassment is a subset of that broad category of conduct. To say that the distinction between discriminatory and nondiscriminatory harassment is morally untenable is to take a fair point-that harassment of any kind is wrong-too far.

Hager's assertion on the depth and breadth of harm inflicted by any kind of harassment is consistent with resc;archers' findings an the harmful effects of workplace bullying. In addition, Hager is correct to observe that, on an interpersonal level, the search for discriminatory motivation as opposed to other types of malice may be elusive.352 "Sexual overtures aside," notes Hager, "a worker may harass another because he dislikes her or because he is simply nasty."353 Hager's point seemingly offers support for the statutory proposal here.

2. The Relationship of the Proposed Protection to the Rule of At-Will Employment

One important note of clarification concerns the relationship between the proposed tort and the rule of at-will employment.354 In providing a framework for analyzing hostile work environment cases under federal employment discrimination law, Supreme Count decisions interpreting hostile work environment doctrine involved the interpretation of a statute, Title VI, that itself provides protections against adverse employment actions: Title VII, therefore, creates a statutory exception to the rule of at-will employment based upon a plaintiff's protected status.

The cause of action proposed in this article does not presume any such protected status for plaintiffs. If adopted, it would start with a presumption that unless otherwise provided for by contract or statute, the employment relationship affected by the theory would be of an at-will nature. Therefore, the only type of dismissal that would be actionable under the theory is one in which the adverse empLoyment action is intex-related with the overall infliction of a hostile work environment; usually as the culminating act, or where the hostile work environment leads to constructive discharge. Dismissals unrelated to the hostile work environment would not be actionable under this theory.

G. POTENTIAL POLICY CRITICISMS OF THE PROPOSED THEORY

1. Disturbing Market Mechanisms

To the extent that this theory creates an exception to the rule of at-will employment, it could be attacked as an unnecessary disruption of market mechanisms. Perhaps the most ardent scholarly defender of at-will employment is Professor Richard Epstein.35 Epstein believes that the at-will rule should be respected in two ways: First, an employer and employee "should be permitted as of right to adopt this form of contract if they so desire."356 Second, an at-will relationship should be presumed "as a rule of construction in response to the perennial question of gaps in contract language."357

In terms that are pertinent to the present analysis, Epstein defends at-will employment on the ground that "the worker can quit whenever the net value of the employment contract turns negative."358 Bad employers will suffer reputational losses, and good employees who experience arbitrary or pcx)r treatment, or witness the same inflicted on their coworkers, will look elsewhere.359 In short, the market will serve as a corrective force that pressures employers to treat their workers fairly.

In the case of workplace bullying, however, it is not clear that the. market is serving this corrective function. As summarized earlier, the data suggests that workplace bullying occurs frequently, particularly in certain lines of work. A good employee who is subjected to poor treatment may decide to move on, but there is no guarantee that the next job will offer better working conditions. In fact, if it holds true that the contemporary American workplace is more primed for bullying than ever before, it is even more unlikely that workers will find themselves working for companies that value "bully-free" workplaces.

In addition; implicit in Epstein's outlook is an assumption that changing jobs is as easy as switching brands of a product. However, a typical individual who leaves a job to escape an unpleasant work environment faces the prospect of lost earnings; lost insurance coverage, a job search of possibly unknown duration, and the psychological stress that accompanies almost anyone's change of employment status.'6 Epstein fails to acknowledge that even a rational economic choice can carry heavy emotional and personal burdens.

2. More Litigation

It is inevitable that the adoption of this new cause of action would lead to a significant initial surge in employment litigation. In the abstract, unnecessary or excessive litigation is undesirable. If, an the other hand, legislatures or judges create rights because public policy deems them important and the marketplace cannot adequately address the underlying ills, then the courts or administrative agencies exist in part to vindicate those rights. It follows that if the threat of liability is the best way to discourage certain behavior, general concerns about an overly litigious society should not be allowed to defeat the creation of new rights. Furthermore, as employers begin to institute preventive measures, the courts will clarify the meaning of the doctrine by exercising their power to dismiss nonmeritorious cases. This initial surge of litigation eventually will level off, and employers will be able to seek guidance for their internal policies and practices from the developing case law. Finally, the affirmative defense for cases not culminating in a tangible employment action provides employers with a powerful economic incentive to engage in preventive measures that reduce the likelihood of litigation.

3. More "Errors" for Plaintiffs

Another concern raised by Epstein is that the further erosion of at-will employment will lead to more erroneous verdicts for employees, thanks to overly sympathetic triers of fact.361 This is certainly possible with bullying, especially in cases alleging abusive supervision, Jurors might overlook the requirements of the law simply because they find the plaintiffs boss to be unlikeable. However, under the proposed statute plaintiffs will not have an easy time proving their claims. Where a defendant's behavior is clearly loud, abusive, ongoing, and visible for alL to see, triers of fact will have little difficulty finding that a hostile work environment existed. However, as Keashly points out, the subtle or hidden nature of certain abusive behaviors "not only makes them difficult to describe specifically but also undermines the target's own abilities to discern exactly what has been going on. It could be argued that the behaviors became unidentifiable and, likely not punishable."362 As one of the respondents to Keashly's study remarked, "unless you live it, you don't understand it, you just don't understand it."363

4. "Torfiying" the Workplace

To the extent that the proposed protection can be seen as a statutory codification of what is, in essence, a tort theory,364 then it could he criticized for advancing what Professor Dennis Duffy calls the "tortification" of labor and employment law.365 In a 1994 article, Duffy takes aim at this "tortification," which he notes has been led by an influx of workplace IIED cases.366 However, whereas Duffy has offered some useful criticisms of workplace IIED claims, the proposed cause of action effectively addresses them.

In addition, this article differs with Duffy on several of his claims about the role of individual employment rights in the modern workplace. First, Duffy opines that because a decision in in an intentional infliction of emotional distress case is so dependent "upon the court's own response to what it considers to be particularly egregious facts," an employer will have "rio incentive to alter its personnel practices and procedures or to reconsider its management decisions" due to a lack of clear guidance as to what behavior is actionable.367 This point is partially correct as applied to IIED claims. It is true that the threat of an IIED claim gives employers scant incentive to alter their policies, but not because of the subjectivity of judicial decisionmaking. Rather, the real reason that employers have little to fear in terms of IIED liability is that so few are successful. A smart employer need only respond to the most egregious behavior, especially behavior related to some type of statutory discrimination or harassment. Furthermore, in jurisdictions where courts have held that workers' compensation statutes preempt employee IIED claims, egregious behavior that otherwise would have invited a lawsuit can now be treated simply as a business cost.

In any event, Duffy's criticism of IIED is largely met by the way in which the proposed theory of intentional infliction of a hostile work environment incorporates standards of employer liability as developed by the Supreme Court in Faragher368 and Ellerth.369 The developing case law should begin to mirror that of statutory hostile work environment claims for sexual harassment, thereby providing considerably more guidance for developing preventive employment policies. The significant investment in time and energy that some employers put into training to prevent and create awareness of sexual harassment could be replicated far workplace bullying.

Second, Duffy argues that workplace IIED claims are, in essence, nothing more than "white collar protection for nonminority male employees."370 If we accept, for the moment, the truth of his assertion, we could easily respond that white male managers are entitled to be as free from workplace abuse as anyone else. In addi