Jottings By An Employer's Lawyer

Wednesday, February 02, 2011

There's That Word Again - Bully

Hat tip to the folks at the Daily Labor Report, who found a case that will fold into my presentation that I will be giving at the 2011 Gulf Coast Symposium  on Human Resource Issues later this spring. My presentation is Civility in the Workplace: Now It Is a Legal Issue.

And the case is Street v. U.S.Corrugated, Inc. (W.D. Ky 1.25.11) [pdf], in which the district court granted the employer's summary judgment in a case brought by four employees (one man, three women). The employer had hired a turn around specialist who was accused by the employees, both men and women, of abusive behavior.

Unfortunately, for the plaintiffs' Title VII gender discrimination claim, the employer was able to establish the "equal opportunity harasser" defense. Noting that there was no allegation that the conduct was motivated by sexual desire, the burden on the plaintiffs' was to show that "the critical issue ... is whether members of one sex [were] exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed." The short answer from the Court:
The record here indicates that both men and women fell victim to Greathouse's abusive management tactics. .... Greathouse's actions were certainly inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender.
For retaliation under Title VII, the employees alleged that following their complaints about Greathouse's management style, including a five page "Formal Harassment Complaint" by one of the plaintiff employees, they were terminated. There was no question that they had complained and had alleged a causal connection between the complaints and adverse employment actions, but the Court still granted summary judgment.
What was missing?  protected activity. According to the Court:
Plaintiffs obviously believed that Greathouse’s conduct made their work environment a hostile one and they opposed his presence at the factory and his intolerable management style. However, Title VII only protects employees from retaliation for having opposed an employer’s unlawful actions, such as discrimination based on gender, age or race. There is no protection under the act for employees who simply complain about the boss being a bully. (emphasis added)
This is the type of case where advocates for anti-bullying legislation will argue this shows the need for such a legislative solution. (The Court threw out another handful of claims including intentional infliction of emotional distress and terroristic threat.)

But maybe not. Although the timing is not clear, this is not a case where the employer turned a deaf ear. The abusive manager was hired near the end of August, 2007 and after the employees made the formal complaint, investigated and relieved him of his duties by the first of June, 2008.  To me, employers who listen to their empoyers and truly don't tolerate jerk like behavior are the most appropriate solution. Far better than the ills of legislation that no matter how carefully tailored, is in my view almost certain to spin out of control.

Employers, to me the lesson is clear: if you don't want a legislative fix, it's time to make sure that you solve problems of this type of behavior yourself. And now.


From the facts of your post, it would seem Plaintiffs would have fared better if they had filed ULP charges alleging a violation of Section 8(a)(1) of the NLRA. Of course their lawyer wouldn't be eligible for attorney fees, which may be a clue to his choice of venue.
Plaintiffs should have tried their luck at the NLRB, since acting in concert to protest working conditions is protected under Section 8(a)(1) of the NLRA. Of course the Act does not provide their counsel with attorney's fees, which may explain it.
The solution is a proactive, well executed behavioral risk management plan similar to the diversity assessments established before policy came into effect. As an expert in workplace conflict, I am often hired after the fact--an expensive and often litigious event. "Bullying" is usually a systems issue. Workplace leaders should strive to conduct a careful and deliberate inquiry, one that allows for exploration and analysis, scrutiny and reflection. That's the "Now".
Anne McSorley
WorkBest Consulting
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