by Lynne Curry
Keller, 2015 Lawyer of the Year in the field of Litigation, Labor and
Employment for Las Vegas, “If bullying involves physical violence
or threats of violence, there can be both criminal and civil causes of
action for assault and battery. Other bullying tactics, such as follow-
ing someone around outside the workplace, making unwelcome tele-
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Bullying Isn’t Illegal—or Is It? ❚ 221
phone calls, or texting and sending emails to an unwilling recipient,
can violate a state’s laws against stalking and cyberstalking.”
The decision in Raess v. Doescher, a landmark workplace bullying
case, supported this view. In that case, Raess, a cardiovascular sur-
geon, was accused of aggressively charging at Doescher, a technician,
and backing him against a wall. The jury found in favor of Doescher
on his assault claim and awarded him $325,000; the verdict was ulti-
mately upheld on appeal to the Indiana Supreme Court.
OVER-THE-LINE BEHAVIOR: INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
Targets can sue bullies for abusive treatment. While these lawsuits are
difficult to win, the employer may also be liable for the bully’s inten-
tional acts if it knows of the bad acts and takes no action to discipline
the bully.
OVER-THE-LINE BEHAVIOR: VIOLATION OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING
According to general practice attorney Russell Nogg, past adjunct
professor of Business Law at the University of Alaska, a skilled attor-
ney may be able to argue that employers who have evidence of bul-
lying and do not address it may violate the covenant of good faith
and fair dealing upheld by many state courts, among them Alabama,
Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Mon-
tana, Nebraska, Utah, and Wyoming.
HR consultant Richard Birdsall, former special investigator for
the California Department of Justice, believes that Nogg has a viable
argument. “Employers have a duty to protect employees. If they fail
to control the workplace, they potentially breach their duty, leading to
a possible negligence claim. It is well recognized that employers who
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222 ❚ BEATING THE WORKPLACE BULLY
‘knew or should have known’ illegal sexual harassment is occurring
or occurred take on vicarious liability for failing to address the issue.
A bully victim’s attorney might argue this same vicarious liability
extends to bullying.”
When Continental pilot Tammy Blakey sued alleging other Con-
tinental pilots disparaged her, Blakey won her suit ( Blakey v. Continen-
tal Airlines). The court ruled employers “have a duty to take effective measures to stop co-employee harassment when the employer knows
or has reason to know” the harassment is “part of a pattern of harass-
ment” in a setting “related to the workplace.”
OVER-THE-LINE BEHAVIOR: VIOLATION OF PUBLIC POLICY
Nogg suggests that bullying may be found to violate public policy in
the same manner as sexual harassment and race discrimination. “The
concept of grossly disparate bargaining power has been a basis for var-
ious provisions of some contracts as void and thus against public pol-
icy. Aggrieved employees may not have reasonable bargaining power
and thus can’t create on their own a bully-free work environment.”
OVER-THE- LINE BEHAVIOR: VIOLATION OF STATE LAW
In 2014, Tennessee passed a bill outlawing workplace bullying in its
public agencies. The law requires a state body to create a training
program against workplace bullying.
As of January 1, 2015, legislation requires employers in California
with fifty or more workers to include anti–workplace bullying train-
ing every two years along with sexual harassment training.
On March 23, 2015, Utah became the fourteenth state to intro-
duce the Health Workplace Bill, which has been signed off on by
the Utah Senate and House. This bill compels the State Personnel
Department to provide annual employee training concerning abusive
conduct.
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Bullying Isn’t Illegal—or Is It? ❚ 223
These three state bills signal a turning of the tide; you can expect
more anti-bullying legislation in the future.
Your Turn: Where Are You Now?
1. Based on what you’ve read, is it possible you have legal
rights a bul y may have violated? Which ones? What do you
intend to do about it? Your state’s bar association can give
you a list of employment attorneys to contact.
2. Does your state have anti-bul ying legislation? If not, con-
sider writing your legislators and asking them to sponsor
a bil .
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28
THE TIMES ARE CHANGING:
HAVE YOU?
Life shrinks or expands in proportion
to one’s courage.
—ANAÏS NIN
C
“
ONNIE, WE’RE WAITING ON you at the bike trail.”
“Abby, I can’t make it.”
“You’re working late again?”
“Yeah.”
“You have to stand up for yourself,” Abby said in a firm voice.
“I know.”
“So did you tell him you won’t work past 6:00?”
“No,” answered Connie in a small voice.
“Why the heck not?” asked Abby, her voice rising.
“I wanted to, but . . . ,” Connie’s voice trailed off. “He looked so mad
when he told me I had to get this done before I left.”
“He’s just a bul y. You said you’d stand firm.”
“I know.”
“So why do you let people walk all over you?”
Familiar story?
All of us have patterns for handling conflict, which directly affect
how we handle bullies.
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The Times Are Changing: Have You? ❚ 225
Some of us are pushovers; we learned this early in life. We signal
our intimidation to bullies and they sense, correctly, that they can
walk on us without negative consequences.
Others of us learn to go toe-to-toe with those who mess with us,
and the bullies leave us alone or decide we’re exactly who they want
to fight to prove they’re the toughest dog in the ring.
The inventory below gives you an opportunity to learn your pre-
ferred conflict style. Once you identify your own style, in contrast with
other approaches, you can add new approaches that appeal to you to
your repertoire.
DISCOVER YOUR CONFLICT STYLE
AND THE APPROACH THAT’S RIGHT FOR YOU
As you take this inventory, honesty counts. Don’t answer as you think
you “should,” answer as you “are.” Select the alternative(s) that fits
how you truly act (even if you know you should do things differently).
Read each situation and consider the six alternatives. Then,
divide ten points among the choices according to which alternative(s)
best describes you. For example,
in the first question, if you really like
answer “C,” give “C” ten points and the other alternatives zero. If,
however, you like answer “C” but also like “A” and “B,” split the ten
points, giving the most points to the alternative you like the best and
so on down the line.
Curry Conflict Inventory
You glance at the phone number listed on the incoming call.
You recognize the phone number of someone with whom you don’t
want to interact. You:
A —
Don’t answer.
Take the cal . What the heck? You might as well handle the
B —
situation now.
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226 ❚ BEATING THE WORKPLACE BULLY
Immediately think about how you can work things out, and pick
C —
up the phone, hoping to ask questions, not tick the cal er off,
and work out a resolution.
Take the phone call because you don’t want to make the cal er
D —
angrier and aren’t sure there’s a better option.
Take the cal ; after al , you have good skil s and believe open,
E —
direct communication achieves the best results.
Take the cal , thinking that if the cal er gets nasty, you’ll get just
F —
as tough back.
Total = 10
Your coworker, employee, or supervisor yells at you in front of others
in a meeting. You:
Say nothing, and try to pretend it didn’t happen.
A —
Take him or her on.
B —
Make a conciliatory statement such as “I can see your point,
C —
but . . .”
Nod and attempt to act with grace.
D —
Respond with a “Pardon me?” then say, “Let’s move from this
E —
stalemate to the real issues.”
Say “Do not talk rudely to me.”
F —
Total = 10
If you err, it’s by:
Pretending a bul y’s comments don’t get to you.
A —
Handling issues before you’re ready or haven’t thought things
B —
through.
Trying to make things work for everyone, even if it hurts you.
C —
Telegraphing that you’re scared or nervous.
D —
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The Times Are Changing: Have You? ❚ 227
Standing your ground.
E —
Confronting toe-to-toe.
F —
Total = 10
When criticized, you:
Try to pretend it doesn’t hurt.
A —
Ask “What do you mean?”
B —
Try to work things out.
C—
Wonder if it real y was your fault, after al .
D —
Ask the critic to clarify his or her thinking.
E —
Let the critic know not to mess with you.
F —
Total = 10
When others disagree with one of your ideas or suggestions, you:
Listen quietly.
A —
Point out what about your ideas makes sense and what they’re
B —
not considering.
See if you can find a way to work things out.
C —
Worry that they’ll prevail and consider how you can live with
D —
their conclusion.
Listen to their viewpoint, clarify your own, and know that you’ll
E —
be able to work it out.
Chal enge what’s wrong with their viewpoint.
F —
Total = 10
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228 ❚ BEATING THE WORKPLACE BULLY
When someone you work with is hostile (yells, threatens, uses abusive
language), you usually:
Shut down.
A —
Let the person know she or he shouldn’t act that way.
B —
Try to understand why the person is acting that way.
C —
Worry about what will happen next.
D —
Ask the other person to get to the issues.
E —
Tell the other person she or he needs to clean it up.
F —
Total = 10
When you walk in on a heated argument, you:
Leave.
A —
Try to see if you can fix things and say what you’re thinking.
B —
Worry about what might happen and try to help everyone work
C —
it out.
Hope that things will blow over, particularly if those involved
D —
work close to you.
Try to mediate.
E —
Listen, figure out what’s happening, and get into the exchange.
F —
Total = 10
When someone takes advantage of you, you:
Try not to deal with this person again.
A —
Notice what’s happening and gently but firmly let the person
B —
know you don’t intend to let this happen.
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The Times Are Changing: Have You? ❚ 229
C —
Handle the situation, but don’t make waves.
Worry that the person will figure out how to take advantage of
D —
you while you’re not looking.
Call the situation as you see it, calmly and without attacking
E —
anyone.
Tell the person to knock it off.
F —
Total = 10
Continued conflict seems to swirl around two employees in the
department you manage (please respond to this question even
if you aren’t a manager). You:
Hope it resolves itself.
A —
Meet with each person individual y and coach them so they
B —
learn the skil s to address it themselves.
Don’t fix the conflict, but try to make each of the employees feel
C —
better to al eviate morale problems.
Ask each employee about the situation, but back off if either
D —
tel s you to butt out.
Meet with each employee, assess the situation, and bring both
E —
employees into your office to mediate and resolve the situation.
Bring the two employees into your office and tell them both to
F —
knock it off.
Total = 10
Conflict:
Makes you sick to your stomach.
A —
Is inevitable and something you need to handle.
B —
Worries you and is something you hope doesn’t occur.
C —
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230 ❚ BEATING THE WORKPLACE BULLY
Makes you worry about worse consequences, but you know you
D —
need to address it.
Is simply part of life and although it’s problematic, it can also
E —
lead to positive change.
F —
Is something you don’t mind and can handle, sometimes bluntl
y.
Total = 10
A
B
C
D
E
F
= 100
Total points assigned
to each letter
DECODING YOUR INVENTORY
If you have thirty or more points in a style, it’s definitely part of your
approach to handling conflict. If you have fewer than nine points in
a style, it’s not an approach you tend to take. You may have thirty or
more points in as many as three styles. You may also have relatively
equal numbers of points in four or even five styles, or there may be one
or two patterns you never choose.
All styles have positive and negative consequences. Some styles
have significantly better outcomes; others have significantly worse
outcomes. You increase your likelihood of using the right conflict
approach when you feel comfortable with multiple styles.
THE STYLES
“A”: If you have thirty or more points
in “A,” you practice avoidance.
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The Times Are Changing: Have You? ❚ 231
Avoidance allows conflicts to fester and escalate. Avoidance can
be a legitimate choice temporarily, or for a trivial issue, or if you would
derive little or no payoff by heading into the conflict.
Avoidance can take the form of diplomatically sidestepping an
issue, postponing dealing with a situation, or withdrawing from a
problematic person or situation. Sonja, Suzanne, and Tova, who each
gave away their power and became a bully’s easy target, all practiced
avoidance.
Avoiders most often swallow what they want to say. When con-
fronted, they often say, “Sure,” “Okay,” and “Whatever you want.”
“B”: If you have thirty or more points
in “B,” you choose confrontation.
Confrontation comes from a “let’s handle this” perspective. Con-
fronters may use both negative and positive methods; confronting can
create both positive and negative consequences.
Mavis confronted Bernard when she prepared a video and threat-
ened to send it to Anderson Cooper, but left Bernard the choice of
whether or not he stopped bullying his employees. After HR manager
Jess confronted Ray, Ray countered by taking his case to their CEO
and accusing Jess of not doing her job.
Confronters often offer the bully a dignified out, as in “Are you
sure you want to do this?” Confronters also make comments such as
“Let’s not go there” and “Let’s back up here, and not go toe-to-toe
when we can reach an agreement we’ll both be happy with.”
“C”: If you have thirty or more points
