NFL Case Puts Issue In Spotlight For Employment Lawyers
Others are more optimistic that legislation may be workable. Nicole Rothgeb, a partner at Livingston, Adler, Pulda, Meiklejohn & Kelly in Hartford, said "there should be more protection for workers."
"It's a hard place to draw a line, but I do think we can do that, because there are lines drawn already with harassment," said Rothgeb, who represents employees and is vice president of the Connecticut Employment Lawyers Association. "You can say [bullying] has to be severe and pervasive, like harassment, and interfere with the ability to perform the job. Certainly we don't want every employee who's looked at cross-eyed to run and file a bullying complaint, just like sexual harassment isn't any cross-eyed look by a man."
Rothgeb added that an alternative to an antibullying statute already exists for some employees: "Employees who are not at-will employees [but] are union members who are protected by a collective bargaining agreement may have additional rights under that agreement," she said. "An alternative to engaging in a statutory scheme [is] for the employees to take control of the situation and organize collectively."
For now, legal claims of at-will employees concerning workplace bullying principally arise from state and federal antidiscrimination law. For example, a supervisor whose animus toward a worker concentrates on gender could incur liability under Title VII, while a focus on disability could violate the Anti-Discrimination Act. An employee bullied on the basis of sexual orientation could make a claim under state anti-discrimination law, and the U.S. Senate recently passed a federal ban that would similarly apply.
But courts also have held that antidiscrimination laws do not constitute blanket prohibitions of abusive behavior in the workplace. The U.S. Court of Appeals for the Second Circuit explained as much in 2011, affirming summary judgment against an employee who wished to argue that his treatment in the workplace created a hostile work environment in violation of federal law: "It would have been futile for the district court to permit [the plaintiff] to raise his hostile work environment claim because workplace bullying … does not constitute discrimination merely because it contains 'sexual content or connotations.' … Instead, a plaintiff must demonstrate that the offending conduct occurred because of his membership in a protected class."
Claims for assault and negligent and intentional infliction of emotional distress are also limited in their reach with respect to employers. Assault and intentional infliction of emotional distress may be found against coworkers or supervisors personally, but unlike in a discrimination case the employer itself may not be liable for such conduct. The Connecticut Supreme Court has held that claims for negligent infliction of emotional distress are only viable when they arise from an employee's termination.
Despite such limitations, O'Brien said it is in an employer's interest to crack down on bullying behaviors in the workplace.
"I talk with people about the business and human resources issues as much as I do about potential liability," he said. "If you are taking away the enthusiasm and optimism and team spirit, you are taking away what the employer is relying on to get work done." •
Patrick R. Linsey is a regular contributor to the Law Tribune. He is an associate at Wofsey, Rosen, Kweskin & Kuriansky in Stamford.