Here are excerpts from a Jan. 21, 2011 article in The New York Law Journal by two attorneys at a major law firm that represents management and employers, warning that it is just a question of time before a state passes a law providing a right of civil redress to workers who are victims of workplace bullying.

Note: this article presents a somewhat alarmist view of what the authors concede is the inevitable passage of legislation to combat workplace abuse. The authors trivialize the current problem, focusing on co-worker spats and hypersensitive employees while ignoring the devastating impact of workplace bullying on targets, their families and the employers.  The authors’ interpretation of case law is unduly negative and slanted.  And the authors fail to present an accurate picture of the current costs of  workplace abuse  on employers and society.

(Maybe next time The New York Law Journal will present a more balanced view of this important issue!)

- PGB

Office Bully Takes One on the Nose: Developing Law on Workplace Abuse

by Jason Habinsky and Christine M. Fitzgerald

For years the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim’s status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”

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Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII’s reach is narrow. Title VII prohibits employment discrimination based on an individual’s race, sex, color, religion, or national origin.

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Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying.

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Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge.

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Therefore, it appears that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB (Healthy Workplace Bill) will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute others will shortly follow.