Workplace Bullying – What Does It Mean Exactly?
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“Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional wellbeing. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.” Chief Justice Dickson (McKinley v. BC Tel)
In 1999, the International Labour Organization declared workplace harassment and violence one of the most serious problems facing the workplace in the new millennium.
In 2007 the U.S. Workplace Bullying Institute (WBI) conducted the first representative study on workplace bullying and found that:
37% of workers have been bullied
In 72% of cases the bullies were management level employees
57% of victims of bullying were women
46% of victims of bullying have suffered from mental illness as a result
In 2021, the WBI conducted the fifth representative WBI National Study and found that 79.3 million U.S. workers were affected by workplace bullying. They further found that 43% of remote workers reported being bullied through meetings and emails, that 67% of bullies were male, and that 65% of bullying was at the hands of the person’s boss.
Bullying is a form of psychological harassment. Unfortunately, bullying may or may not be actionable under the law, depending on where you live. Regardless of whether legal protections exist for bullying, failing to promote a psychologically healthy workplace may have a detrimental impact on employee health and morale. This in turn damages employee output, and consequently harms the organization as a whole. Where psychological harassment in the workplace is protected by law, it can lead to an increase in litigation at a hefty cost to employers.
In general, employees are legally protected in the workplace through multiple pieces of legislation. In some cases, employee protections can be found in human rights legislation. In other cases, employees are protected through occupational health and safety legislation. In still other situations, employees will be protected through specific workers’ compensation laws, as well as bills specific to bullying in the workplace. And, as in many other areas of law, even when protections are not clear from a legislative perspective, case law can be relied upon in the event of litigation.
Let’s look at some examples of what might be considered bullying:
Verbal abuse, threats, taunting and intimidation
Spreading malicious rumours about the victim and making false allegations in company documents
Constantly changing guidelines and expectations applicable only to the victim and not to others
Removing responsibilities from the victim and making the victim feel useless
Assigning unreasonable duties to the victim
Constantly, persistently and unnecessarily criticizing the victim’s work
Now let’s look at a few actual cases. First I will examine three Canadian cases, and then I will turn to the treatment of workplace bullying in the States.
Canadian Cases
The first is Boucher v. Walmart (Ontario, Canada 2014), and here are the facts:
Boucher, an Assistant Manager at Walmart of 10 years, was subjected to 6 months of belittling and demeaning treatment by her Manager
The Manager spoke to her in a profane manner (i.e. calling her an “idiot”)
The abusive conduct was reported to senior management several times but no steps were taken to address it
The Manager was eventually terminated for punching Boucher’s arm on 2 occasions
Boucher alleged constructive dismissal on the basis of, among other things, the intentional infliction of mental suffering
Boucher was awarded $1.21 million against Walmart and $250,000 against the store manager in his personal capacity
Next let’s look at the facts for Cooke v. HTS Engineering Ltd (BC, Canada, 2012):
Cooke worked as a sales assistant for approximately 10 months
She alleged psychological harassment and bullying by her supervisor which caused depression and anxiety
Cooke gave evidence of being called an idiot and pathetic, receiving an IQ test and being told that she would likely not get past the second question, being subjected to outbursts of anger and other conduct that made her work environment intolerable
Cooke alleged constructive dismissal on these grounds
The Court held that psychological harassment and bullying caused Cooke to be constructively dismissed
She was awarded a total of $13,381.35, which included $3,500 in aggravated damages for mental distress
And a third example is Vernon v. British Columbia (Liquor Distribution Branch)
Vernon, a senior manager with 30 years of service, was dismissed for “gross misconduct, including bullying, harassing, and intimidating behaviour towards subordinates”
The dismissal ensued after a complaint was brought to management about her bullying and harassing conduct. This was the first complaint that had ever been brought against Vernon during her employment at the Company and she had never been disciplined for her behaviour
An investigation was performed by the Company to determine if the alleged misconduct had taken place, after which she was terminated
The Court held that Vernon had been entitled to a warning before dismissal and that the manner of investigation was flawed
A notice period of 18 months, aggravated damages of $35,000 and punitive damages of $50,000 were awarded
Two of the cases clearly fall along the same lines (the moral for employers being not to bully your employees and then ignore them when they bring concerns), but the third is a bit of a different story, and is a reminder to employers to thoroughly investigate complaints in a significant way, and to not default to blindly trusting the complainant.
Cases in the United States
Photo by RODNAE Productions from Pexels.
Richardson, Joiner, and Hall, in their 2016 paper titled Workplace Bullying in the United States: An Analysis of State Court Cases[1], compared workplace bullying to cancer. Their work summarized legislation regarding bullying in the U.S., and also discussed the 2001 Healthy Workplace Bill, which has been introduced by 31 states.
While unlike Canada, workplace bullying is not independently actionable under Title VII of the Civil Rights Act of 1964, if the bullying is severe or pervasive enough to alter the conditions of the victim’s employment so as to create an abusive working environment, that person may be able to make a claim for a hostile work environment, as in the case of Ramseur v. Perez.
Another interesting case was Raess v. Doescher (2008)
· The employee, Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries), sued Daniel Raes for intentional interference with the employment relationship
In particular, the following was relied upon:
the phenomenon of psychological violence in the workplace, how certain organizational structures create a ‘culture’ wherein psychological violence can occur, is based on data derived from thousands of case studies, where the profile of those individuals prone to committing acts of psychological violence at work
Daniel Raess, M.D, a cardiovascular surgeon, argued that there was no evidence of excessive behaviour
A jury returned a defense verdict on an intentional infliction of emotional distress and awarded the perfusionist $325,000 for assault
On appeal, the judgment was reversed, and then the perfusionist also appealed
The Supreme Court of Indiana found awarded compensatory damages for emotional distress and intentional interference with the employment relationship, and further held that there was evidence supporting the damages award
For more, go here
While the case law in the U.S. with respect to bullying is limited at this time, given the social climate of the time with respect to wrongdoing in workplaces, it will catch up to Canada and other countries in the not too distant future. In addition, it is always important to understand that bullying allegations are time consuming, can be expensive, and can also have a deleterious impact on the organization’s reputation, dramatically affecting recruiting efforts and donor relations.
For more examples of cases in the States regarding workplace bullying, please go here.
Reduce the Risk of Bullying
Employers can help reduce the risk of bullying and psychological harassment occurring in their workplace by:
Creating and implementing unambiguous anti-harassment policies
Include anti-bullying provisions in their anti-harassment policies and codes of conduct
Conducting training for supervisors and employees on acceptable workplace behaviour as well as the associated consequences of failing to adhere to anti-harassment policies
Addressing occurrences of harassment through the implementation of a prompt, fair and objective investigation
Disciplining those individuals who, upon investigation, are found to be in violation of the organization’s anti-harassment policies
Avoiding practices that are a threat to employee health and psychological well-being
Creating an open environment where people feel safe and comfortable to discuss issues of concern without fear of reprisal
Prohibit retaliation for brining concerns forward
Workplaces that are free from bullying will:
Increase employee morale and workplace relationships
Increase productivity and teamwork, which directly affect the “bottom line” of the business
Help lower turnover rates, thereby reducing the need to spend time and resources on recruiting and training replacement staff
Reduce workers’ compensation claims
Reduce absenteeism, presenteeism, and disability claims
Preserve the organization’s reputation
Reduce the likelihood of costly litigation
Everyone deserves a safe and healthy workplace, and more importantly, each of us can only work to create safety for animals when we ourselves feel safe!
If you are being bullied – speak up!
Be sure to mark October 17-23, 2021 on your calendars as “Freedom from Workplace Bullies Week”!
Please note that for the summer I’ll be posting my blogs at the beginning of each month instead of every two weeks.
Reference:
[1] Richardson, R. E., Hall, R., & Joiner, S. (2016). Workplace bullying in the United States: An analysis of state court cases. Cogent Business & Management, 3(1), 1256594.
This blog is provided for general information purposes only. It is not intended to provide legal advice or opinions of any kind. No one should act, or refrain from acting, based solely upon the materials provided on this website, any hypertext links or other general information without first seeking appropriate legal or other professional advice.
The intention of this blog is to promote the longevity and engagement level of the activist community within the Animal Advocacy Movement (AAM). The majority of the advice will be geared towards employees within the AAM in Canada and the United States, but may be applicable to other countries.
Krista is the Executive Director of For The Greater Good where she consults with animal protection organizations across North America on matters of organizational development and governance. In addition to holding five degrees and designations in human resources, including a master’s degree in organizational development and leadership, she is pursuing her doctorate focused on the employment experiences of animal rights activists in Canada and the United States. Krista first joined the Animal Advocacy Movement as the VP of Mercy For Animals in Canada where she led twelve undercover investigations into factory farms and slaughterhouses. Krista also served as the President of the Board for Happily Ever Esther Farm Sanctuary for over five years, also now serves on several other Boards including One Protest, The Rancher Advocacy Program, Egg-Truth, and Dairy-Truth. Krista is also a member of Womxn Funders in Animal Rights. Krista is a peer reviewer for the Journal of Critical Animal Studies. Prior to joining the Movement, Krista founded a boutique employment and labour law firm in Toronto where she consulted to employers across Canada and the U.S. for a decade, and before that she spent fifteen years in human resources including as the Vice President of HR for one of the largest software companies in the world.