The Human Resource Management of Workplace Bullying Claims

Kendall D. Isaaci Human resource departments provide tremendous value and service to organizations. Indeed, many times they are the front line of defense for a corporation as they navigate, investigate, negotiate the resolution of countless employee complaints. Without a skilled human resource representative on staff, certainly many more problems systemic with employee disputes would find their way into administrative agency investigations (involving agencies such as the Equal Employment Opportunity Commission (EEOCii) and their state agency equivalents to name a few) and into full-blown litigation in court. Few people can question the reality that although the human resource department is a cost center in that it costs money but does not bring money into the organization like a sales or marketing department it certainly plays a crucial role in minimizing outgoing costs like exorbitant litigation expenses and attorney fees that can financially cripple a company. Human resource representatives, especially at Fortune 1000 companies, receive ample training in workplace harassment and discrimination laws. They are taught how to identify and handle disputes involving employee concerns such as racial, sexual or disability discrimination or harassment, as well as retaliatory action related to those or any of the other immutable characteristics articulated in Title VII, the ADA or the ADEA.iii Unfortunately, there appears to be a lack of attention paid to, let alone training, relative to the handling of generalized workplace harassment-type disputes that do not neatly fall within the realm of protections afforded by the likes of Title VII, ADA and ADEA. It is not as if this gap has gone unnoticed. For example, the Society for Human Resource Management (SHRM) and the Ethics Resource Center (ERC) provided a list of the most commonly observed misconduct in the workplace in their report titled, The Ethics Landscape in American Business Survey Report. For 57 percent of HR professionals, abusive or intimidating behavior toward employees (excluding sexual harassment) tops the list.iv I am sure these human resource professionals are also aware of the multitude of surveys and polls that exist and that deal with this issue of generalized workplace harassment (which tends to be coined bullying perhaps for greater dramatic effect).v A Monster Global Poll of 16,517 employees conducted in May 2011 revealed that 65% of Americans surveyed believed they had been the victim of workplace bullying. This finding, albeit substantially higher, still underscores the problem as noted in the survey conducted by workplace bullying expert Dr. Gary Namie. His 2010 Workplace Bullying Institutes WBIZogby survey shows that 35% of workers have experienced bullying first hand. It further shows that nearly 75% of bullying comes from a manager bullying a subordinate, and half of all Americans have directly experienced workplace bullying at some point in their working lives.vi The International Labor Organization (ILO) reports that complaints of workplace bullying represent the fastest growing complaints from workers worldwide.vii Additionally, in a study conducted by the consulting firm CPP, employees spent 2.8 hours per week dealing with conflict (which is inclusive of bullying conflict), equating to approximately $359 billion in paid hours in 2008 in the United States.viii Indeed, it is widely believed that bullying, the most common form of violence in our societyix, is up to four times more prevalent than sexual harassment. Not to mention that bullying is quite costly, in that it (a) refocuses employee energy from productivity to self-protection,(b) results in staff turnover and burnout, (c) intensifies the use of sick leave, (d)

increases medical and workers compensation claims due to occupational stress, (e) results in hiring costly consultants... and (f) leads to out of court settlements, legal fees and litigation. Additionally, communication and teamwork break down, and organizations lose credibility and suffer loss of good reputations.x Why does this gap in attention, training and HR effectiveness exist? Additionally, what is the best method of addressing it? A major problem is that in the U.S. there is little recourse for a victim of workplace bullying. The global workforce has been more receptive to this issue. Sweden enacted an anti-bullying law in 1993. Following suit were the countries of Belgium, Australia, France, Germany, Denmark, Norway, and the Netherlands amongst other European countries.xi Several Canadian Provinces (Quebec (2004), Ontario (2010) and Manitoba (2011)) amended their occupational health and safety laws to include provisions making it unlawful to harass employees in the workplace. While these laws vary, they generally hold it to be unlawful for an employee to engage in behavior deemed to be threatening, intimidating, humiliating or isolating towards another employee. The U.S. legislatures have been resistant the anti-workplace bullying movement. Dr. Namie and his Institute have been aggressively pushing their Healthy Workplace Bill for years. However, while approximately 21 states have proposed some sort of anti-workplace bullying/healthy workplace statutory protection for employees (with California being the first state to attempt in 2003 and New York the most recent to attempt it in 2011),xii none have been enacted thus far.xiii Thus, employees who do not neatly fall within Americans with Disability Act (ADA), Title VII protected classes (such as age, race, sex, religious preference, color and national origin) and similar state statutory parameters are left with trying to advance novel and extremely difficult to prove and succeed with legal arguments such as negligent hiring, retention and supervision, assault, intentional infliction of emotional distress, and tortious interference with employment type claims. These generalized approaches are woefully inadequate to protect employees of workplace harassment and bullying.xiv This gap in legal protection for employees surely creates a gap in attention for some human resource professionals. It stands to reason that if one set of employees is enthralled in a dispute with racial overtones, and another set is arguing vehemently about whether or not it is appropriate to leave nasty postcards on the desk of a hated co-worker, the former dispute which has the potential for more severe legal ramifications will receive the attention. And unfortunately what sometimes happens is that the latter dispute resolves with the victim quitting or being fired, perhaps mistakenly believing he/she was the victim of discriminatory animus because the person that left the postcards was of a different race, sex or age bracket (but in fact the offending party merely disliked the victim and wanted the person gone, for no other reason than a personality conflict or for the simple amusement of the office bully), and then filing EEOC charges and/or lawsuits and costing everyone countless thousands of dollars and precious hours of their lives dealing with a dispute that will likely never make it to a trial because there is no true proof that discrimination was the true motivation behind the behavior. HR departments frankly lack the manpower and the training to deal with all of these seemingly petty disputes that can unfortunately snowball into major disruptions to the lives of the individuals and the productivity and profitability of the company. It is unfortunate that more

companies are not borrowing from their unionized brethren, because unionized companies tend to better deal with these type disputes than nonunionized companies. It is hard to argue against the effectiveness of their dispute resolution process especially as compared to the more generalized and less procedurally sufficient open door policies, ethics hotlines, and work-it-outfor-yourself policies prevalent within its non-unionized brethren. When an employment dispute does arise, unions have well-articulated processes to help resolve the disputes. Typically a dispute is first discussed between the employee, supervisor and union rep and, if unresolved, the grievance then goes to a step 2 meeting. It subsequently moves higher through the step process and involves more players/ decision makers and ultimately will result in a filing of arbitration if still unresolved and if the union chooses to pursue arbitration (it is the choice of the union to pursue, not the employee). Arbitration has become so important in labor disputes because Arbitration is not necessarily the substitute of litigation but the substitution of industrial strife the ablest judge cant be expected to bring the same experience and competence to bear upon the determination of a grievance because he cant be similarly informed the processing of even frivolous claims may have therapeutic value of which those who are not a part of the plant environment may be unaware.xv However, we have seen a decline in labor unions over the years, and today unions represent 12 percent of the work force.xvi Without a systematic and engrained process like grievance filing and arbitration, employees and human resource professionals alike are left to formulate resolutions on the fly without little clearly defined precedent or policies to help facilitate the process. Corporations need to have a clearly articulated policy against workplace harassment (inclusive of bullying) and a procedure for how employees can address their concerns if they feel victimized. No, this does not mean simply having an open door or report it to HR environment. This means having a process that not only includes utilizing internal resources such as HR to investigate complaints but also intertwining external process such as non-binding mediation and/or arbitration for employee usage. It also means advertising this process to all of the employees, staying true to following the steps within the process, and ensuring that employees are not retaliated against for utilizing the process. Once again, the international community seems to be ahead of the curve when it comes to infusing mediation into the workplace dispute resolution process. For example, organizations like the Advisory, Conciliation and Arbitration Service (Acas) and the Labour Relations Agency (LRA) in Northern Ireland offer professional mediation services. The Acas and LRA services are used mainly to: help sort out disagreements between workers, like personality clashes help sort out problems between staff and employer hear appeals against disciplinary action, often in smaller companiesxvii

Their belief is that early mediation or conciliation in the workplace is the key to resolving disputes before irretrievable breakdown in relations occurs.xviii Therefore, there is a clear business case for mediation and other forms of ADR, some of which are summarized as follows:

Time-mediation is often completed in one meeting, compared with the two days or more typically required for tribunal hearings Less stress-full than other options and as the aggrieved parties are heavily involved there exists a better probability to achieve a realistic and sustainable resolution Legal representation for the parties is optional and, in the absence of a legal framework, less critical to outcomes Proceedings are confidential so that parties are less likely to be trapped by positions adopted earlier Mediation takes a problem-solving approach to complaints, which reduces disruption and future problems Agreement is less likely to mean that one party wins and the other loses, leading to lower employee turnover The process is evidently fair since both parties contribute to finding a solution Win-win solutions support trust-based relationships and a culture of good people management.xix

The business case goes on to explain the cost savings, both financially and in regards to the time investment management has to make dealing with employment litigation claims (stating that litigated claims result in businesses investing ten days worth of time dealing with the claim and senior management investing 7.7 days of time).xx This data and analysis is just as relevant to U.S. employers as it is to employers abroad. A reduction in time and financial investment by achieving a more efficient mediated settlement should be a huge incentive for employers in the U.S. to consider implementing early-intervention mediation into their process. While one might assume it would make sense to simply have the HR department serve as the mediators of disputes (a capacity that they now do to a certain extent), this can be problematic for several reasons. One problem with human resources as mediator is that at some companies the human resource representatives either have a dotted line (partial reporting relationship) or a solid line (direct subordinate reporting relationship) to the management in the department that the representative is assigned to handle. For example, if the HR representative is assigned to deal with all problems emanating from the customer service department, it would be difficult for that representative to effectively handle a workplace dispute between an employee and the department head when the HR representative has a reporting relationship to that department head. HR representatives should not have to be placed in this predicament which is unlikely to result in a winning outcome for everyone involved. Another analogous problem is that many times the HR representatives performance evaluation is contingent upon how he/she is viewed by the client group. And typically it is managements voice in the client group/department that carries the most weight. The employees in the customer service department can sing all the praises they want about their HR representative, but if the managers despise him/her, it will usually manifest into a poor performance evaluation and ultimately shaky job security. There is also a general mistrust of human resources amongst the employee population, with a general sentiment that complaints brought to the human resource department will not go anywhere. The mistrust issue may also be more or less of a problem depending on the proactive

nature of each respective HR department, but whether an employee base has this as their perception or if it is indeed reality, the line between perception and reality blurs so much that it is oft-times difficult to ascertain one from the other. When the comfort level with bringing complaints to human resources is low, the workplace problems either go unreported and/or unresolved, with both being problematic scenarios. In a survey of 263 cross-cultural employees about their trust level with certain dispute resolution process, very telling was the fact that only 37.8% of the employees would trust their internal dispute resolution process to handle the problem (interestingly, the judicial system was viewed even less favorably at 35.7%), whereas 65% would feel comfortable with a third-party neutral to resolve the dispute (and interestingly 79.1% support legislation to prohibit bullying or abusive behavior in the workplace).xxi This survey suggests that internal process such as human resources are not seen as neutral enough to properly resolve the disputes, and external neutral measures less structured and contentious than litigation is desired. Finally, the human resource department is there primarily to protect the companys assets. The department deals with important documents and manages the company policies and procedures hopefully to keep the company compliant with employment laws to thwart potentially costly lawsuits. It is not uncommon for HR representatives faced with balancing the competing interests between management and employee to take the side of management when litigation is looming or in process. This is why HR departments are generally not well equipped to deal with these rising allegations of workplace bullying. The best course of action is to bring an outside, non-biased neutral individual to assist with the handling and dispensing of these cases. The person can partner with HR but, by being separate from HR, there is a perception of fairness in the process. And it bears repeating, perception tends to be deemed reality. Despite these process and perception flaws, should a company persist in having mediated outcomes as a core job responsibility of the human resource department, the HR representatives charged with engaging in such a process need to be thoroughly trained in mediation techniques, not to mention trained in how to deal with and handle the psychological factors prevalent in abusive and potentially violent relationships.xxii This type of training is likely not happening on a regular basis at many companies. Just as companies train their HR employees about employment laws, recruiting techniques, and compensation practices, they should also train them on dispute resolution techniques within the employee relations context of the job. This way, the department may never be the perfect solution to the problem but it can possibly become an adequate solution. Several companies, such as Coca Cola Enterprises Inc. (the bottler for Coke products, which is a separate entity from Coke), have attempted to more effectively address workplace problems by implementing policy driven and organizationally ingrained internal ADR processes.xxiii According to Atlanta, GA based human resources employee Melanie Lewis, Coca Cola Enterprises (CCE) utilizes a multi-step process for dealing with employee disputes. The policy mandates that employees follow the process, which encompasses the following steps: 1. Talk - the best way to deal with workplace conflict is to work it out between yourselves

2. Support Seek assistance with the problem from management, human resources, or seek confidential counsel from an employee assistance program (EAP) ombudsman 3. Mediation The program is run by employees. The mediator can be a nonmanager 4. Arbitration External arbitrators are used (1 arbitrator, not a panel) The program, called SOLUTIONS, is a mandatory policy for all employees that are not covered by a collective bargaining agreement (CBA), as unionized employees have their own contractually articulated step grievance process. While employees must take part in the program, if they think an employment law has been broken, the company does provide a $1000 legal reimbursement benefit - which allows them to seek an attorney. The lawyer can be used to represent them in the mediation or arbitration. If an employee requests binding arbitration, they can proceed straight to that step, bypassing the other three steps. It should be noted that the arbitration process is intended to replace the court system. Thus, employees are precluded from filing suit (except for excluded matters such as ERISA, workers compensation, unemployment compensation, and they maintain a legal right to file a charge with the EEOC). The employee gets a say in the selection of the mediator and/or arbitrator and is free to, but not obligated to, split the cost of the arbitration with the company (an employee would be best served by splitting the cost of the arbitrator so that the arbitrator understands he/she is being paid by both parties and should render a decision based on the facts and law and not based on any bias towards the party that retained and paid the arbitrator). The arbitrator is empowered to award any amount of compensation deemed appropriate, including compensatory and punitive damages. The United States Postal Service has also been a pioneer in this area. In the wake of a media nightmare following workplace shootings (not so sensitively termed going postal) and the knowledge that the United States Postal Service (USPS) was spending approximately $200 million per year dealing with workplace grievances and related employment disputes, xxiv the USPS created the REDRESS (Resolving Equitable Disputes Reaching Equitable Solutions Swiftly) program. This program was designed to give employees an option to quickly and amicably resolve a grievance or an equal employment opportunity (EEO) complaint. Based on the transformative model of mediation, the program seeks to Assist people in conflict Improve workplace climate Improve communications between supervisors and employees And resolve equal employment opportunity complaints more swiftlyxxv The mediator is an external neutral individual charged with empowering the parties to mutually discuss the issues and develop workable solutions. Once a grievance or complaint is filed, the parties can choose to participate in mediation. It is typically scheduled within two weeks, is free and voluntary, and does not preclude an employee from bringing in an outside person to help represent his/her interest.xxvi Allowing the employee to bring a representative, such as a lawyer, for assistance helps ease the concern that the mediation could be biased due to the fact that the process is fully paid for by the USPS (including the payment of the mediator fee and the training costs for the mediators). The program currently has a roster of over 3,000 mediators. xxvii The

program has been a success with over 90% of the participants being pleased with the program and, as a result, the number of EEO complaints has declined significantly.xxviii A good example of the financial success corporations can have by implementing sound systems to deal with employee disputes is The Toro Company, which attempted to implement an internal mediation center to handle workplace disputes such as bullying. We decided that we wanted to regain control of our money, of our documents, of our reputation and of our time, said Andrew Byers, overseer of their mediation program.xxix According to Toro, they have seen a drastic reduction in litigation cases and costs since implementing their mediation center. Toro Companys approach of offering voluntary non-binding mediation resulted in 9095 percent of claims against it being mediated. Before Toro Co. implemented its in-house ADR program in 1992, the cost of the average litigation was more than $47,521. After only two years of experience with the ADR program, the cost per claim was slashed by seventy-five percent.xxx Toro has had their program for many years. Since that time, only one-third of Fortune 1000 companies have implemented a definitive program to attempt to manage employee conflict. xxxi Clearly, more work needs to be done at the corporate level to ensure that employees are continually treated with dignity and respect by co-workers and management alike. The concern is whether or not Corporate America will be proactive, like Toro, and manage the problem or whether they will be reactive and thus necessitate state or federal legislation to force them to do what they should have an interest in voluntarily doing.xxxii Regardless of which occurs first, what is certain is that some level of change is necessary to ensure that employees will gain a much-needed remedy for the continuing rise in workplace bullying.
ii

Professor Isaac teaches dispute resolution courses at Appalachian School of Law. He has previously litigated and mediated employment law cases both as both a plaintiffs attorney and as defense counsel for a large regional firm. Prior to practicing law, he worked in human resources and management capacities for several Fortune 500 companies. He would like to thank his research assistants Hiwot Tilahun and Melanie Ghaw for their invaluable assistance with this article. ii See http://www.eeoc.gov/eeoc/newsroom/release/1-11-11.cfm stating that private sector workplace discrimination charge filings with the federal agency nationwide hit an unprecedented level of 99,922 during fiscal year (FY) 2010, which ended Sept. 30, 2010. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. The EEOC administers laws such as Title VII of the Civil Rights Act of 1964 and The Civil Rights Act of 1991. The EEOC works with state Fair Employment Practice Agencies (FEPAs) to manage charges of discrimination and the protection of the employment rights. iii Discrimination against those over the age of 40 (ADEA) and those deemed disabled or perceived as such (ADA) is unlawful as well. See Age Discrimination in Employment Act of 1967, 29 U.S.C. 630(b) et seq. and Americans with Disabilities Act 42 U.S.C. 12111 et seq., respectively iv Id. v Bullying is a form of workplace harassment. Examples of bullying behavior include unfair and excessive criticism, publicly insulting victims, ignoring their point of view, constantly changing or setting unrealistic work targets and v undervaluing their efforts at work, or culturally insensitivity. Harassment is unwelcome conduct that humiliates, offends or intimidates people. Harassment is bullying conduct that is neither appropriate nor relevant to work. This includes words as well as acts, pictures and images, manifest attitudes and a hostile or threatening atmosphere. The effect is to make a person feel insulted, offended, intimidated and unable to work effectively or, ultimately safely. See NSW Dept. of Educ. & Communities, State Training Services,

http://www.training.nsw.gov.au/businesses/apprenticeships_traineeships/self_help/bullying.html (last visited Feb. 12, 2012).

vi

For more information see http://www.workplacebullying.org/wbiresearch/

vii

Query, Tim and Hanley, Glennis Recognizing and Managing Risks Associated with Workplace Bullying July 2010 CPCU eJournal published by the CPCU Society. viii Kian, Monya, July 2011 blog post via http://www.mediate.com/articles/KianM1.cfm ix Andrea Cohn & Andrea Canter, Bullying: Facts for Schools and Parents, http://www.nasponline.org/resources/factsheets/bullying_fs.aspx (posted Oct. 7, 2003).
x

P. Lutgen-Sandvik, The communicative cycle of employee emotional abuse, 16 Mgt. Commun. Q. 471-501 (2003). Amanda Lueders, Youll Need More Than a Voltage Converter: Plugging European Workplace Bullying Laws into the American Jurisprudential Outlet, 25 Ariz. J. Int'l & Comp. L. 197 (Spring 2008). xii These statutes have utilized definitional approaches ranging from the intentional infliction of a hostile work environment upon an employee by a coworker or coworkers, typically through a combination of verbal and nonverbal behaviors to the deliberate, hurtful and repeated mistreatment of a [t]arget ... by a bully ... that is driven by the bully's desire to control [another person] xiii See http://www.healthyworkplacebill.org. xiv For a review of the relatively few cases where employees have had some success with these allegations, see st Zimmerman v. Direct FCU & Breslin, 262 F.3d 70 (1 Cir. 2001), EEOC v. National Education Association, 442 F.3d xiv 840, 846-47 (9th Cir. 2005), Daniel H. Raess, M.D., v. Joseph E. Doescher, No. 49S02-0710-CV-424(IN SC 2008) xv The Opinion of the Court and Justice Douglas in the seminal case (as a part of the Steelworker Trilogy of cases in 1960 that solidified the usage and preference of arbitration in labor disputes) United Steelworkers of America v. Warrior & Gulf Navigation Co, 363 U.S. 574 (1960) xvi Joe Nocera, Turning Our Backs on Unions, The New York Times Opinion Pages June 4, 2012. This article analyzes the book The Great Divergence by Timothy Noah. See http://www.nytimes.com/2012/06/05/opinion/noceraturning-our-backs-on-unions.html (site last visited August 22, 2012).
xi
xvii

See Research Inst. for Clinical Ergology, Mediation, Conciliation & Arbitration: Alternative Dispute Resolutions, http://www.ergology.org/articles/Mediation_Conc_Arb_FB.pdf (accessed Jan. 8, 2012); see also The Chartered Inst. of Personnel and Dev., www.cipd.co.uk (accessed Jan. 4, 2012). xviii Id. at 2. xix Id. at 3. xx Id. xxi Fox & Stallworth, supra n. 27, at 395. xxii McLay, supra n. 75. xxiii Information relative to CCE was gathered as a part of a workshop led by the company employee Melanie Lewis nd at the 2 National Conference of Minority Professionals in ADR, which took place May 19-21, 2005 in Columbus, Ohio. xxiv Karal G. Fields, Describing the Literature That Assesses the United States Postal Service Redress Program (unpublished MPA dissertation, Tex. St. U., Spring 2006) (available at http://ecommons.txstate.edu/arp/111). xxv Id. at 13. xxvi Id. at 18. xxvii Id. at 19. xxviii Id. at 23-24. xxix Harvard negotiation law review titled U.S. Corporations Should Implement In-House Mediation Programs Into Their Business Plans To Resolve Disputes which is an excerpt from Drew L. Mallicks article Dont Think Twice, Mediations All Right: United States Corporations Should Implement In-House Mediation Programs Into Their Business Plans To Resolve Disputes (2007). It can also be found at http://www.hnlr.org/?p=120

xxx

See also Miguel A. Olivella Jr., Toro's Early Intervention Program, After Six Years, Has Saved $50M, 17 Alternatives to High Cost Litig. 65, 65 (1999) xxxi This according to a 2011 survey of corporations conducted by Cornell University law professor David Lipsky. xxxii Professor Lipsky acknowledged in February 17, 2012 ADR Symposium at The Ohio State University Moritz College of Law that none of the corporations general counsel or leading in-house lawyers indicated that they had implemented an internal conflict management system because they cared about their employees. It was generally done for costsaving measures or for employee recruitment purposes.