NFL Case Puts Issue In Spotlight For Employment Lawyers

, The Connecticut Law Tribune

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George E. O'Brien

Miami Dolphins offensive lineman Jonathan Martin—allegedly the victim of bullying by teammates—will not be returning to the field this season, the team announced last week. Martin is talking to the team and the media through legal counsel and the NFL is investigating what took place in the Miami locker room.

It's a far cry from the goings-on by the water cooler in your office break room. Or is it?

Bullying in the workplace raises legal and public policy issues that concern employers and employees alike. In a survey last year, 35 percent of workers said they had felt bullied on the job. The CareerBuilder study found that the number of employees complaining of workplace bullying has risen in recent years.

And allegations of bullying in the workplace can give rise to claims against employers. Claims of bullying behaviors in the workplace lead to lawsuits over discrimination, negligent and intentional infliction of emotional distress and even assault. Workplace bullies may target victims because of their race, gender, disability or sexual orientation, for example. Indeed, in the Jonathan Martin case, one of Martin's fellow players allegedly used racial epithets in bullying him.

"Right now, the liability that comes out of the nastiness of supervisors generally [involves] a protected class," said George O'Brien, a shareholder at Littler Mendelson in New Haven who counsels management in employment cases. "If a supervisor targets women or targets gays or targets disabled people, the employer is liable for the acts of its supervisor. Or if coworkers target protected classes … then the employer, put on notice of that, has to do something about it."

"Bullying" itself, however, is not actionable in Connecticut. And efforts have stalled over the last decade to pass a state law that would specifically ban bullying in the workplace. A bill proposed in the legislature in 2008 that would have created a private right of action with respect to workplace bullying died in committee.

"Workplace bullying is very much like domestic violence. It is intimate, especially when people work closely with one another and do so for many years," Katherine Hermes, a coordinator of Connecticut Healthy Workplace Advocates, said in testimony supporting the bill. "Bullying at work reduces productivity, causes employees' health to decline resulting in sick days and personal leave, and disrupts the thing most people want to do: their jobs."

Connecticut's business community pushed back hard against the proposed legislation, said state Rep. Roberta Willis, a Litchfield County Democrat who is the bill's sponsor. Ultimately, advocates for the legislation shifted their focus to bills that would apply exclusively to state workers. A bill requiring the state to track complaints of workplace violence and "abusive conduct" by state employees was introduced in 2011, but it too failed to become law.

Proponents and critics of efforts to legislate prohibitions on workplace bullying agree on the biggest sticking point: How to ban behavior that is abusive without infringing on an employer's need to manage its employees, which may include disciplinary action.

"The difficulty with an antibullying statute is that it's not well defined," O'Brien said. When it comes to "bullying" behaviors, O'Brien said, the risk of a legislative prohibition is that it could "just take anything that bothers somebody and turn it into a potential cause of action."

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.

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