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Workplace bullying is the cause célèbre and growing.  The recent fiasco involving Miami Dolphins players Jonathan Martin and Richie Incognito is just one example.  Incognito allegedly coordinated a prank sending hundreds of insulting, threatening, and racist text messages to Martin.  Some suggested coaches told Incognito to “toughen Martin up” and these actions were Incognito’s way of executing that direction.  Martin has yet to sue.

In another case, the City of Meriden, Connecticut will pay a $300,000 settlement to fire captain, to settle claims based on workplace bullying.  Here, the assistant fire chief allegedly repeatedly threatened Roger Kindschi and undermined his authority.  Kindschi also found someone had tampered with his equipment, which could have led to serious injury or death.  According to Kindschi’s attorney, the City of Meriden’s investigation into the situation was mishandled, including failing to keep information gathered anonymous.

Workplace bullying is unlawful if it gives rise to a hostile work environment based on a protected characteristic, such as an employee’s sex, race, or religion.  In such cases, an employee could successfully sue the employer, and in some cases, the individual perpetrator.  The law is developing regarding whether an employer can be liable for bullying when it is not based on a protected class.  Some theories of such liability include negligent hiring, negligent supervision, violation of duties to provide a safe workplace under the Occupational Safety and Health Act, and no-fault liability under workers’ compensation laws.

To ensure bullying isn’t happening at your workplace, consider these steps:

• Ensure your policies prohibit unlawful harassment and provide an appropriate complaint mechanism.  All harassment (legal and illegal) should be covered.  Make sure to check your state law for statuses that may not be federally protected, such as sexual orientation.  The complaint mechanism should allow the employee to report harassment to more than one person, in case the listed person is the alleged harasser.  This may be difficult in small businesses, but a second, hopefully ethnically different person should be listed, even if that person does not normally handle such issues.
• Don’t let management be the bully.  In some work settings, appearing “tough” can be an extremely important part of workplace culture, but the line must be drawn at bullying.  Even if management does not actively encourage bullying, how does it respond to such complaints?  Is the objecting employee branded a “complainer”?  Does management tell the employee to develop a thicker skin?  While management need not respond with a full investigation to every perceived slight, it is important not to ignore or minimize legitimate complaints.  And remember, all threats of violence should be taken seriously.
• Train your managers (and non-managers, if feasible) to avoid all harassment and to help them spot harassment.  Remember that sexual harassment is not the only kind of harassment.  Make sure your training program encompasses all kinds of harassment, such as racial, ageist, and non-illegal harassment.  Help your personnel identify and report situations that “don’t seem right,” such as an employee suddenly avoiding a co-worker or frequently calling out sick after a conflict.
• Consider the possibility of off-duty harassment.  Harassment may occur by text message, on social media sites, at a public place, or at an employee’s home.  Generally, employers are not obligated to monitor off-duty conduct among employees, but there are some situations where employers may need to get involved.  Where there is a nexus to the workplace, such as when some harassment occurs at work and some occurs via text message, a few courts have found employers liable for all the harassment.  While you may need to investigate and respond to off-duty harassment, avoid putting policies in place that suggest you will exercise control outside the workplace, as this can be hard to achieve practically and you do not want to unintentionally create liability.
• Have a plan to identify and respond to threats of workplace violence.  Remember workplace violence can be perpetrated by employees, customers, strangers, or others.  In some cases, teasing and bullying can turn into violence, so pay attention and react in the early stages.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment as well as counsel on employment law issues in general and labor law issues.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.