Sessions: EMP 202: Workplace Bullying

This isn't an issue just for high school locker rooms. Bullying is an issue in the workplace and it concerned enough RIMS attendees that they packed the room for Session EMP 202 "Workplace Bullying: The 'New' Type of Harassment" on Tuesday morning.

Adeola Adele, a senior vice president and EPL practice leader at Marsh, set the record straight at the outset, confirming that "bullying" is not illegal in the United States. However, when she surveyed the audience to see who knew about the risk associated with the issue, well over half the room raised their hands.

She shared some interesting statistics from the National Workplace Bullying Institute, stating that 37 percent of Americans--54 million people--have been bullied in the workplace. In addition, workplace bullying is four times more prevalent than other types of harassment, including sexual and racial harassment. Women are the targets of the behavior, more often than men. By the same token, women were the perpetrators of workplace bullying in 71 percent of cases.

Johan Lubbe, partner at Jackson Lewis, said during his presentation that when he defends workplace bullying claims in the U.S.--and yes, there are claims being made despite the behavior not being expressly prohibited by law--he asks the employers if the bullier singled out the individual or group that he or she bullied.

"I am usually pleased to find out that the perpetrator bear hugs everyone, is touchy-feely with everyone," said Lubbe. This defense is known as the "equal opportunity harassment" defense, or as Lubbe prefers to call it: the "equal jerk" defense.

Lubbe was quick to point out that this defense is falling by the wayside. "Whether the person does it to everyone is irrelevant," he said. "It's really whether or not this behavior has occurred, period."

While legislation is being looked at in several states, Lubbe said much of his research has covered European countries where workplace bullying is increasingly being looked at as a type of harassment. The crux of what constitutes workplace bullying is that the behavior causes chronic stress and anxiety that causes a person to lose their dignity. The challenge in identifying when workplace bullying has occurred is that the line between a tough management style and abuse can be a fuzzy one.

Although no legislation has passed yet in the U.S., Lubbe said there have been attempts to look at workplace bullying from an OSHA standpoint, or to apply it to existing statutes. A case this year in Indiana involving a bypass surgery support staff member who sued a bullying doctor went in favor of the victim. The jury awarded the person $325,000, and it was the first time that workplace bullying was rolled into the concept of intentional infliction of emotional distress, Lubbe said.

The "Healthy Workplace" bills that have been making their way through various stages of legislature intend to make unlawful employment practices that subject an employee to an abusive work environment. A cap of $25,000 on emotional distress damages could be seen as attractive to legislators, Lubbe said. However, bullying could be seen as just one of several causes of action.

"In my perspective, it only adds $25,000 to your financial risk," he said. "I think it will take one state to be bold and to pass this legislation. Other states will follow."

Catherine Padalino, a vice president and national EPLI product leader at Chubb Specialty Insurance, said that even though workplace bullying is not illegal in the U.S., underwriters are continuing the monitor the issue as an emerging exposure.

"The frequency of claims will increase," she said. "We don't view this as a severity issue, but simply because of the media attention and the legislation activity this will be another cause of action that will be brought."

Padalino said that as an underwriter, one of the surprising statistics to her was that in 62 percent of cases, when made aware of bullying employers worsen the problem or do nothing. "One of the reasons I think that number is alarmingly high is because it is tough to determine the difference between a tough management style and bullying," she said.

From the underwriter's perspective, Padalino said that the term "bullying" does not have to be mentioned expressly in an employment practices policy, but that companies should certainly have broad language that covers any non-sexual harassment. Adele said that as a broker, she would prefer that bullying be mentioned explicitly so that the client is covered whether the behavior has been deemed illegal or not.

"Just because workplace bullying is not illegal doesn't mean the behavior won't be alleged," she said. "Claims will come and you need to at least be able to cover your defense costs."

These bits of advice came at the end of the session, during which Lubbe expressed his prediction that bullying will take on a life of its own, even before laws pass to make the behavior illegal.

"I think you will see a standalone 'bullying' case before legislation is passed because of all the attention being brought to the issue," he said.

OK risk managers. Start reviewing your employee handbooks and EPLI policies.