VMM partner Avrohom Gefen wrote an Expert Analysis column for Law360 Employment Authority titled "Cuomo Scandal Highlights Risks Of Workplace Bullying."
The article can be read here (requires subscription) and below.
Cuomo Scandal Highlights Risks Of Workplace Bullying
By Avrohom Gefen · September 3, 2021, 9:51 AM EDT
The recent investigation of allegations against former New York Gov. Andrew Cuomo, conducted by the New York state attorney general, uncovered — in addition to acts of sex-based harassment — many instances of workplace bullying.
But while harassment, as well as intimidation and retaliation, are illegal, bullying isn't.
So where is the line drawn? And is bullying a real concern if it doesn't cross that line?
Workplace bullying is broadly defined as any form of repeated, unreasonable actions of individuals or a group, directed towards an employee or group of employees, intended to intimidate or risk the health and safety of the employee(s).
Examples include unwarranted or invalid criticism, blaming without factual justification, excessive monitoring, shouting, swearing or otherwise humiliating the employee.
There are continuing legislative initiatives to make workplace bullying illegal.
In New York state, S.B. S2261, or the Healthy Workplaces bill, has been reintroduced several times. It has not yet passed, but inches closer each time.
If and when it's passed, it will make it unlawful for employers to create or allow abusive conduct. This is defined as "acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee's work performance."
Under this bill, potential remedies include reinstatement, removal of the harasser from the plaintiff's work environment, back pay, medical expenses, punitive damages and attorney fees.
At least 30 states and Puerto Rico have introduced bills aimed at making workplace bullying illegal, but Puerto Rico's is the only one that has passed.
So bullying in the workplace is currently not expressly illegal in any state. While this activity is not illegal per se — yet — it affects employee morale, creates workplace tension and has been shown to negatively impact productivity.[1]
Moreover, although workplace bullying is not yet illegal, with so many protected categories under federal, state and local employment discrimination statutes, any bullying could prompt a harassment complaint.
For example, if bullying is focused on a particular individual or individuals, and they happen to belong to protected categories, an employee could make a prima facie case that the bullying was discriminatory.
As the investigative report regarding the allegations against Cuomo noted: "The alleged sex-based harassment by the Governor did not occur in a vacuum, and the allegations of women who have worked in the Executive Chamber cannot be understood or assessed without the context of the overall workplace culture."[2]
According to the report, over the course of the Cuomo investigation, "most witnesses not in the Governor's inner circle provided a consistent narrative as to the office culture of the Executive Chamber, describing it as "toxic" and full of bullying-type behavior."[3]
Former staff members said that "crying at one's desk was common and normal within the office" and that "supervisors went out of their way to make people feel stupid."[4]
In addition, witnesses said that supervisors would "blow mistakes out of proportion," which led to an environment filled with fear and anxiety for staff members.
Cuomo was observed "yelling at staff ... for perceived mistakes, including "screaming" at his senior staff during meetings. One woman on staff recalled that the Governor would become angry at her if he deemed her work less than perfect, and felt that the Governor tried to humiliate her. Another former staff member recalled the Governor calling him "stupid" and an "idiot.""[5]
The report describes classic workplace bullying, and posits that it was this culture that allowed the governor's sex-based harassment to continue.
The bullying behavior created a culture of fear and intimidation, which made it unlikely that anyone would confront the governor about his behavior.
A senior state agency staff member even said that "she never raised concerns about the Governor's behavior, which she described as inappropriate and derogatory, because she was afraid of both personal retaliation and negative implications for her team's work and her agency's agenda."[6]
Bullying behavior by leaders can also trickle down.
The attorney general's report describes a staff member explaining that "when the Governor was upset, he expected his staff members to reflect his displeasure, and so when senior staff members yelled at others within the Executive Chamber, it was because the Governor expected them to do so."[7]
To be clear, courts have consistently held, as articulated by the U.S. District Court for the Southern District of New York's 2014 decision in Johnson v. City University of New York, that:
Bullying and harassment have no place in the workplace, but unless they are motivated by the victim's membership in a protected class, they do not provide the basis for an action.[8]
However, if an employee perceives that the bullying was motivated by racial or other discriminatory animus, it can engender a lawsuit or a complaint to an agency such as the U.S. Equal Employment Opportunity Commission.
Retaliation claims can also succeed if an employee suffered an adverse employment action after complaining about discriminatory conduct, even if the underlying conduct was not actionable.
This means that if a supervisor bullies an employee who then claims that the bullying was discriminatory, and the bullying worsens after the complaint, there may be a viable retaliation claim even if the initial bullying was not, in fact, discriminatory.
Additionally, sexual harassment claims often allege bullying behavior that began after sexual advances were rebuffed.
Of course, beyond the risk of litigation, bullying negatively affects both the targeted employees and the workplace as a whole, ultimately harming the business.
Employers should seek to recognize bullying behavior and minimize it by:
- Implementing clear anti-bullying policies and including such policies in employee handbooks or codes of conduct;
- Requiring specialized training, like workplace civility workshops, and training managers and supervisors to model appropriate behavior;
- Training managers and supervisors to stop bullying in real time by identifying and intervening early;
- Creating formal channels and procedures for bullying complaints, similar to sexual harassment complaints; and
- Taking steps to address known bullying behavior, including discipline of offending employees.
It's not illegal to bully employees, but it's not good business. And the writing is on the wall: Workplace bullying will soon become the new frontier in labor and employment law.
Avrohom Gefen is a partner and head of the employment law and commercial litigation practices at Vishnick McGovern Milizio LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bartlett, James E., Bartlett, Michelle E. (2011). Workplace Bullying: An Integrative Literature Review. Advances in Developing Human Resources (ADHR), 13(1), 69–84. First published online. https://journals.sagepub.com/doi/10.1177/1523422311410651; Priesemuth, M. (2020, June 19). Time's Up for Toxic Workplaces. Harvard Business Review. https://hbr.org/2020/06/times-up-for-toxic-workplaces.
[2] https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Johnson v. City University of New York , 48 F.Supp3d 572 (SDNY 2014); see also Mendez v. Starwood Hotels & Resorts Worldwide. Inc ., 746 F.Supp2d 575 (SDNY2010) "[E]ven if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law.").
