In recent years, much needed attention has finally been given to the horrific epidemic of bullying in our nation’s schools. Previously, the phenomenon of bullying in schools and colleges was relegated to the subject of jokes or parody. The message sent by Hollywood films such as Revenge of the Nerds was, in sum and substance, “get over it”. For decades, victimization by bulling was accepted as an unavoidable rite of passage for children and adolescents who were too “brainy”, “effeminate”, “shy” or otherwise didn’t “fit in”.
Particularly during the past five years, new advocacy groups have emerged that draw attention to the pervasiveness of the bullying epidemic, and the serious emotional and physical harm suffered by victims of bullying. One such group is the National Child Traumatic Stress Network (NCTSN), which offers extensive information on its website.
While there has been much public discussion of bullying in America’s schools, far less attention has been given to the pervasiveness of bullying in the workplace. However, some courts are taking note that workplace bullying can give rise to actionable legal causes of action that are distinct from traditional discrimination claims. In 2008, in the case Raess v. Doescher, the Supreme Court of Indiana determined that workplace bullying was “entirely appropriate” for the jury to consider in evaluating the plaintiff-employee’s workplace lawsuit because bullying could be “a form of intentional infliction of emotional distress” – a well-recognized tort.
The Indiana Supreme Court’s holding in the Raess case of particular importance because many courts have been reluctant to permit bullying lawsuits to proceed unless the conduct is tied to sexual harassment or other form of class-protected discrimination (i.e., hostile work environment based on ethnicity, race, disability, or other protected status). The emergence of bullying, as a ground for liability separate and independent of statutorily-prohibited discrimination, is essential to the protection of the health of American workers.
Suffolk University Professor David C. Yamada, of the Workplace Bullying Institute has been a particularly active and effective voice in promoting the implementation of workplace protections against bullying. Professor Yamada’s article, The Phenomenon of “Workplace Bullying” and the Need for Status Blind Hostile Work Environment Protection, Georgetown Law Journal, March 2000, Vol. 88, No. 3, is the seminal work on the topic of the inadequacy of employment law in addressing bullying. In particular, Professor Yamada cogently and convincingly argues that neither traditional tort remedies (intentional infliction of emotional distress) nor anti-discrimination statutes, provide protection for the vast majority of bullied employees. Tort remedies do not suffice because of the unrealistically high legal threshold for proving a claim of intentional infliction of emotional distress. Quite simply, the tort standard does not reflect the particular vulnerability of a bullied employee. Civil rights remedies are oftentimes inapplicable because bullying often takes place in contexts that do not implicate protected status. As a solution, Yamada advocates for implementation of Health Workplace Bills. Unfortunately, despite legislative efforts, New York has not yet enacted a version of that legislation.
With the increasing attention given to bullying by the media, it is hoped that New York will enact workplace protections to protect employees from the tragedy, trauma and emotional injuries occasioned by bullying in the workplace. In the meantime, New York employment lawyers, such as the attorneys at Rapaport Law Firm, forge new ground with creative utilization of existing tort and civil rights laws to protect the rights of bullied employees in New York.