Download Bullying, Harrassment and Retailiation

BULLYING, HARASSMENT AND
RETALIATION
Mike Wiederhold, Vice President, Specialty Markets, Munich Reinsurance America, Inc.
Jack McCalmon, Esq., The McCalmon Group, Inc.
The McCalmon Group’s Bully Poll
Have You Ever Experienced Workplace Bullying?
Yes (78%)
No (20%)
Don't Know(0%)
The Question
 Should legislation dictate civility in the workplace?
 Everyone is against bullies
 But how far should employers go to protect employees from bullies?
 What is bullying to one may not be to another
 Is one manager’s tough love bullying?
 Will counseling sessions be deemed intimidating or humiliating?
 By protecting employees from bullying are you hurting employers?
 Do you make it so that employers look toward independent contractors,
temporaries and even automation to avoid litigation?
Status Quo
 Title VII of the Civil Rights Act of 1964 prohibits discrimination and retaliation
 Subsequent court decisions prohibit discriminatory harassment
 Harassment and retaliation are forms of bullying
 Assault
 Protects against physical intimidation
 Battery
 Protects against physical acts

Defamation, libel, slander - protect against false statements

False light - Protects against rumors

Intentional infliction of emotional distress - Protects against intentional acts
meant to cause emotional harm

Contract - Employees or unions can contract to prevent bullying, if they desire
UK Law

1974 Health and Safety at Work Act – Employers are required to ensure the wellbeing of their staff. If they fail, they are breaching an employee’s contract.
Harassment on the grounds of race, sex, disability, age or sexual orientation runs
counter to antidiscrimination legislation.

United States - No implied contract exists between most employees. Most
employees are considered at-will.
U.S. Legislative Trends
 Some state lawmakers are trying to prohibit all forms of workplace bullying
 New York – Healthy Workplace Bill
 Stalled in the House
 Illinois – Healthy Workplace Bill
 Stalled in the House
 Forecast is 12-16 states will introduce legislation
 Note: Oklahoma has tried to pass three times and each time did not pass
What is Workplace Bullying?
 An abuse of power
Cyberbullying
 Cyberbullying, which is sometimes referred to as online social cruelty or
electronic bullying, is an aggressive, intentional act carried out by a group or
individual, using electronic forms of contact, repeatedly and over time against a
victim who cannot easily defend him or herself
 Sending mean, vulgar, or threatening messages or images; posting sensitive,
private information and/or lies about another person; pretending to be someone
else in order to make that person look bad; and intentionally excluding
someone from an online group
Common Workplace Bullying Tactics

Falsely accused someone of "errors" not actually made (71 percent)

Stared, glared, was nonverbally intimidating and was clearly showing hostility (68 percent)

Discounted the person's thoughts or feelings ("oh, that's silly") in meetings (64 percent)

Used the "silent treatment" to "ice out" and separate from others (64 percent)

Exhibited presumably uncontrollable mood swings in front of the group (61 percent)

Made up own rules on the fly that even she/he did not follow (61 percent)

Disregarded satisfactory or exemplary quality of completed work despite evidence (58 percent)

Harshly and constantly criticized having a different standard for the target (57 percent)

Started, or failed to stop, destructive rumors or gossip about the person (56 percent)

Encouraged people to turn against the person being tormented (55 percent)
Source: Workplace Bullying Institute
Workplace Bullying Statistics

37 percent of employees have been bullied

72 percent of bullies are bosses

62 percent of employers ignored the problem
Source: Zogby International Survey; www.businessinsurance.com (June 13, 2010).
Bullying – More Workplace Statistics

Only one percent of bullies are fired and seven percent are reprimanded – often
in a way that causes the bullying behavior to escalate

Only three percent of bullied employees filed complaints – they preferred to
begin circulating their resumes

More than 80 percent of bullied workers quit and went to work elsewhere
Source: “Bullies Winning in the Workplace,” PRWeb as reported on Yahoo News (Sept. 3, 2008)
Reasons to Prevent Bullying

Employees are more likely targeted for bullying if they are better educated, more
popular or more competent than the average colleague

Better educated, popular, more competent employees make up the same 80
percent that take their talents to other employers when they are the target of
bullies

One reason bullies target the better educated, popular and competent is that
bullies view these employees as a threat
 Bullies want to surround themselves with personalities that they can control or
intimidate

Bullying breeds bullying. Managers who look the other way when bullying
behavior occurs or fail to investigate reports of bullying behavior create a
breeding ground for the behavior to spread
Workplace Bullying – Case Law
The Indiana Supreme Court upheld a $325,000 jury verdict against a
cardiovascular surgeon for charging toward a medical technician with clinched
fists while swearing and screaming at him. The medical technician received the
verdict based on intentional infliction of emotional distress and assault after an
expert on workplace bullying testified at trial.
Source: Daniel H. Rees, M.D. v. Joseph E. Doescher (April 8, 2008).
What is Harassment?

Unwelcome behavior because of race, color, religion, sex, national origin, age,
disability or genetic information that is severe or pervasive enough to create a
hostile or offensive work environment or if that results in an adverse employment
decision such as termination or demotion.
What is Harassment?
 Harassment can take the form of slurs, graffiti, offensive or derogatory
comments, or other verbal or physical conduct
 Sexual harassment -- unwelcome sexual advances, requests for sexual favors,
and other conduct of a sexual nature
Harassment Statistics
 The EEOC received 30,641 harassment charges in 2009, the second highest in
history
 12,696 of the total charges were sexual harassment charges
 Men filed 16 percent of the total sexual harassment charges
Source: EEOC.gov
What is Retaliation?

Anti-discrimination laws prohibit retaliation for filing a discrimination charge,
testifying, or participating in any way in an investigation, proceeding, or lawsuit;
or opposing employment practices they reasonably believe discriminate.
What is Retaliation?
 Title VII anti-retaliation provision prohibits retaliation in two ways:
 Opposition clause
 Opposition by informing your employer you believe it is engaging in prohibited
discrimination.
 Complaining about discrimination
 Threatening to file a charge of discrimination
 Picketing because of discrimination
 Participation clause
 Participating in an employment discrimination proceeding -- protection allowed even if
the initial charge is unfounded
 Filing a charge of employment discrimination
 Cooperating with an internal investigation of alleged discriminatory practices
 Serving as a witness in an EEO investigation or litigation
What is Retaliation?

Retaliation occurs when an employer, employment agency, or labor organization
takes an adverse action against an individual because he or she engaged in a
protected activity.

Examples of adverse actions include termination, refusal to hire, and denial of
promotion. Adverse actions also include threats, unjustified negative evaluations,
unjustified negative references, or increased surveillance.
Retaliation Statistics
 Retaliation charges across all statutes totaled 33,613 in 2009
 Retaliation claims made up 36 percent of all charges, which was the highest
percent in history
 Title VII retaliation claims alone totaled 28,948
Bullying Prevention Checklist
Preventing Harassment from Bullying:

Update your handbook to provide an “anti-bullying” provision or incorporate “antibullying” language into your sexual harassment policy

Train your managers and supervisors on what is and is not bullying behavior

Incorporate this training into your sexual harassment and/or equality training
programs

Make sure that your managers understand that “management by intimidation” is
the worst form of management

Review your procedures for employees to report wrongdoing

Make certain that employees can report intimidating behavior without the fear of
reprisal

Consider peer review of bully statements
Harassment Prevention Checklist
• Ensure that you have a sexual harassment policy in place that is
designed to prevent and correct harassment
• Provide employees multiple avenues to report harassment
• Make sure your sexual harassment policy prohibits retaliation
• Ensure that your policy spells out that your organization will promptly
investigate any legitimate complaint and will take appropriate
remedial action
• Consider allowing employees to report to a neutral third party like a
hotline to report claims of retaliation or intimidation
• Consistently train your managers and supervisors on your zerotolerance policy for sexual harassment
Retaliation Prevention Checklist

Place a general anti-retaliation policy in your employee handbook

Insert anti-retaliation language into your equal employment, harassment and
your ethics policies

Provide safe procedures for employees to report wrongdoing, including
retaliation

Train all managers and supervisors on retaliation and its exposures

Train all managers and supervisors on how to intake a claim of retaliation

Be prepared to investigate all allegations of retaliation

Document carefully all efforts to prevent retaliation, including all investigations
undertaken
Legislative Alternatives

Provide tax credits to employers that provide sensitivity and boundary training
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is not permitted to be further distributed without the express written permission of Munich Reinsurance America, Inc. or
Munich Re. This material is not intended to be legal, underwriting, financial, or any other type of professional advice.
Examples given are for illustrative purposes only. Each reader should consult an attorney and other appropriate advisors
to determine the applicability of any particular contract language to the reader's specific circumstances.