BULLYING, HARASSMENT AND RETALIATION

Mike Wiederhold, Vice President, Specialty Markets, Munich Reinsurance America, Inc.Jack McCalmon, Esq., The McCalmon Group, Inc.

The McCalmon Group’s Bully Poll

Have You Ever Experienced Workplace Bullying?

Yes (78%)

No (20%)

Don't Know(0%)

The Question

Should legislation dictate civility in the workplace?

Everyone is against bullies

But how far should employers go to protect employees from bullies?

What is bullying to one may not be to another

Is one manager’s tough love bullying?

Will counseling sessions be deemed intimidating or humiliating?

By protecting employees from bullying are you hurting employers?

Do you make it so that employers look toward independent contractors,

temporaries and even automation to avoid litigation?

Status Quo

Title VII of the Civil Rights Act of 1964 prohibits discrimination and retaliation

Subsequent court decisions prohibit discriminatory harassment

Harassment and retaliation are forms of bullying

Assault

Protects against physical intimidation

Battery

Protects against physical acts

Defamation, libel, slander - protect against false statements

False light - Protects against rumors

Intentional infliction of emotional distress - Protects against intentional acts

meant to cause emotional harm

Contract - Employees or unions can contract to prevent bullying, if they desire

UK Law

1974 Health and Safety at Work Act – Employers are required to ensure the well-

being of their staff. If they fail, they are breaching an employee’s contract.

Harassment on the grounds of race, sex, disability, age or sexual orientation runs

counter to antidiscrimination legislation.

United States - No implied contract exists between most employees. Most

employees are considered at-will.

U.S. Legislative Trends

Some state lawmakers are trying to prohibit all forms of workplace bullying

New York – Healthy Workplace Bill

Stalled in the House

Illinois – Healthy Workplace Bill

Stalled in the House

Forecast is 12-16 states will introduce legislation

Note: Oklahoma has tried to pass three times and each time did not pass

What is Workplace Bullying?

An abuse of power

Cyberbullying

Cyberbullying, which is sometimes referred to as online social cruelty or

electronic bullying, is an aggressive, intentional act carried out by a group or

individual, using electronic forms of contact, repeatedly and over time against a

victim who cannot easily defend him or herself

Sending mean, vulgar, or threatening messages or images; posting sensitive,

private information and/or lies about another person; pretending to be someone

else in order to make that person look bad; and intentionally excluding

someone from an online group

Common Workplace Bullying Tactics

Falsely accused someone of "errors" not actually made (71 percent)

Stared, glared, was nonverbally intimidating and was clearly showing hostility (68 percent)

Discounted the person's thoughts or feelings ("oh, that's silly") in meetings (64 percent)

Used the "silent treatment" to "ice out" and separate from others (64 percent)

Exhibited presumably uncontrollable mood swings in front of the group (61 percent)

Made up own rules on the fly that even she/he did not follow (61 percent)

Disregarded satisfactory or exemplary quality of completed work despite evidence (58 percent)

Harshly and constantly criticized having a different standard for the target (57 percent)

Started, or failed to stop, destructive rumors or gossip about the person (56 percent)

Encouraged people to turn against the person being tormented (55 percent)

Source: Workplace Bullying Institute

Workplace Bullying Statistics

37 percent of employees have been bullied

72 percent of bullies are bosses

62 percent of employers ignored the problem

Source: Zogby International Survey; www.businessinsurance.com (June 13, 2010).

Bullying – More Workplace Statistics

Only one percent of bullies are fired and seven percent are reprimanded – often

in a way that causes the bullying behavior to escalate

Only three percent of bullied employees filed complaints – they preferred to begin

circulating their resumes

More than 80 percent of bullied workers quit and went to work elsewhere

Source: “Bullies Winning in the Workplace,” PRWeb as reported on Yahoo News (Sept. 3, 2008)

Reasons to Prevent Bullying

Employees are more likely targeted for bullying if they are better educated, more

popular or more competent than the average colleague

Better educated, popular, more competent employees make up the same 80

percent that take their talents to other employers when they are the target of

bullies

One reason bullies target the better educated, popular and competent is that

bullies view these employees as a threat

Bullies want to surround themselves with personalities that they can control or

intimidate

Bullying breeds bullying. Managers who look the other way when bullying

behavior occurs or fail to investigate reports of bullying behavior create a

breeding ground for the behavior to spread

Workplace Bullying – Case Law

The Indiana Supreme Court upheld a $325,000 jury verdict against a

cardiovascular surgeon for charging toward a medical technician with clinched

fists while swearing and screaming at him. The medical technician received the

verdict based on intentional infliction of emotional distress and assault after an

expert on workplace bullying testified at trial.

Source: Daniel H. Rees, M.D. v. Joseph E. Doescher (April 8, 2008).

What is Harassment?

Unwelcome behavior because of race, color, religion, sex, national origin, age,

disability or genetic information that is severe or pervasive enough to create a

hostile or offensive work environment or if that results in an adverse employment

decision such as termination or demotion.

What is Harassment?

Harassment can take the form of slurs, graffiti, offensive or derogatory

comments, or other verbal or physical conduct

Sexual harassment -- unwelcome sexual advances, requests for sexual favors,

and other conduct of a sexual nature

Harassment Statistics

The EEOC received 30,641 harassment charges in 2009, the second highest in

history

12,696 of the total charges were sexual harassment charges

Men filed 16 percent of the total sexual harassment charges

Source: EEOC.gov

What is Retaliation?

Anti-discrimination laws prohibit retaliation for filing a discrimination charge,

testifying, or participating in any way in an investigation, proceeding, or lawsuit;

or opposing employment practices they reasonably believe discriminate.

What is Retaliation?

Title VII anti-retaliation provision prohibits retaliation in two ways:

Opposition clause

Opposition by informing your employer you believe it is engaging in prohibited

discrimination.

Complaining about discrimination

Threatening to file a charge of discrimination

Picketing because of discrimination

Participation clause

Participating in an employment discrimination proceeding -- protection allowed even if

the initial charge is unfounded

Filing a charge of employment discrimination

Cooperating with an internal investigation of alleged discriminatory practices

Serving as a witness in an EEO investigation or litigation

What is Retaliation?

Retaliation occurs when an employer, employment agency, or labor organization

takes an adverse action against an individual because he or she engaged in a

protected activity.

Examples of adverse actions include termination, refusal to hire, and denial of

promotion. Adverse actions also include threats, unjustified negative evaluations,

unjustified negative references, or increased surveillance.

Retaliation Statistics

Retaliation charges across all statutes totaled 33,613 in 2009

Retaliation claims made up 36 percent of all charges, which was the highest

percent in history

Title VII retaliation claims alone totaled 28,948

Bullying Prevention Checklist

Preventing Harassment from Bullying:

Update your handbook to provide an “anti-bullying” provision or incorporate “anti-

bullying” language into your sexual harassment policy

Train your managers and supervisors on what is and is not bullying behavior

Incorporate this training into your sexual harassment and/or equality training

programs

Make sure that your managers understand that “management by intimidation” is

the worst form of management

Review your procedures for employees to report wrongdoing

Make certain that employees can report intimidating behavior without the fear of

reprisal

Consider peer review of bully statements

Harassment Prevention Checklist

• Ensure that you have a sexual harassment policy in place that is

designed to prevent and correct harassment

• Provide employees multiple avenues to report harassment

• Make sure your sexual harassment policy prohibits retaliation

• Ensure that your policy spells out that your organization will

promptly investigate any legitimate complaint and will take

appropriate remedial action

• Consider allowing employees to report to a neutral third party like a

hotline to report claims of retaliation or intimidation

• Consistently train your managers and supervisors on your zero-

tolerance policy for sexual harassment

Retaliation Prevention Checklist

Place a general anti-retaliation policy in your employee handbook

Insert anti-retaliation language into your equal employment, harassment and your

ethics policies

Provide safe procedures for employees to report wrongdoing, including retaliation

Train all managers and supervisors on retaliation and its exposures

Train all managers and supervisors on how to intake a claim of retaliation

Be prepared to investigate all allegations of retaliation

Document carefully all efforts to prevent retaliation, including all investigations

undertaken

Legislative Alternatives

Provide tax credits to employers that provide sensitivity and boundary training

© Copyright 2010 Munich Reinsurance America, Inc. All rights reserved. "Munich Re" and the Munich Re logo are internationally protected registered trademarks. The material in this presentation is provided for your information only, and is not permitted to be further distributed without the express written permission of Munich Reinsurance America, Inc. or Munich Re. This material is not intended to be legal, underwriting, financial, or any other type of professional advice. Examples given are for illustrative purposes only. Each reader should consult an attorney and other appropriate advisors to determine the applicability of any particular contract language to the reader's specific circumstances.