TBA Law Blog

Posted by: Robert Bowman on Jun 25, 2008

Journal Issue Date: May 2008

Journal Name: May 2008 - Vol. 44, No. 5

This protracted campaign season serves as a daily reminder to Americans that we will have a new president in the White House in January 2009. Those who closely follow politics know that with the election of a new president, the desk drawers at the Washington think tanks and policy centers fly open. When that occurs, policy initiatives are fished out, dusted off and tried out on the new political leaders who come to town.

History teaches us that changes in federal employment laws are sure to follow the election of a new president. The Americans with Disabilities Act of 1990 closely followed the election of George H. W. Bush in 1988. When Bill Clinton was elected, the Family and Medical Leave Act of 1993 soon followed. President George W. Bush dusted off the Federal Wage and Hour Regulations, which had not been touched in over fifty-four years, and substantially revised them to meet the needs of the modern workforce. Business leaders and labor and employment attorneys will be closely watching to see what agenda accompanies our soon-to-be-inaugurated president.

One policy initiative gaining steam is the idea of "bully boss" legislation. State lawmakers across the country are presenting bills to attempt to protect employees from bully bosses. Although the definition of bully boss is a bit unclear, it can be summarized in a few words: bosses who are jerks. A recent Zogby International Poll found that 37% of American workers, an estimated 54,000,000 people, state that they have been bullied at work. Bullying can take a number of forms, including: verbal abuse, shouting, swearing, name-calling, malicious sarcasm or threats to safety; and public or private behavior that is threatening, intimidating, humiliating, hostile, offensive or inappropriately cruel. Employees are entitled to protection under federal and state anti-discrimination laws, which state that employees cannot be subject to harassment based on a protected category such as race, sex, color, religion, national origin, disability or age. However, there is no current prohibition against bullying employees when such conduct is not based on a protected category.

So far, the antibullying legislation has failed in the eleven states in which it has been presented. The legislation is active in four more states, but the chances of it passing are slim. And thus, without legislation to make generalized bullying illegal, courts continue to hold that a jerk is just a jerk as long as he is an equal opportunity jerk. The Tennessee Court of Appeals agreed in the recent decision of Frye v. St. Thomas Health Services, 227 S.W.3d 595 (Tenn. Ct. App. 2007). Frye asserted that her supervisor was abusive to employees. The court found in favor of the defendant employer by holding that there was no evidence that the supervisor's actions were based on any protected category, and thus, there was no evidence of illegal discrimination or harassment. The Court of Appeals affirmed the dismissal even though it found there was a "clear presence of hostility ... resulting from [the supervisor's] abrasive management style."

The bully boss phenomenon, even if it continues to be shot down by state legislatures, should not go unnoticed by businesses. The bottom line is that bully bosses affect "the bottom line." Even though such behavior may not be illegal, it creates an abundance of expenses for a business. Consider the lost production time of employees who feel so abused and humiliated by their boss that their attention is not focused on work. And once the employee has finally had enough, he or she will leave, increasing turnover costs and costs to train yet another new employee. And although a court may ultimately decide that a bully boss is just a bully and not an unlawful discriminatory harasser, the legal fees involved in defending harassment and emotional distress lawsuits will surely not make the business feel like a winner.

In the event an employee is able to get a claim involving a "bully boss" to a jury, the employer is most certainly looking at a potential large judgment. That is because jurors in employment cases identify with the employee. Jurors realize the importance of a job for a person's sense of self-worth, and jurors expect that companies should treat their employees fairly. To that end, it is prudent for all businesses to make certain that their managers treat their subordinates with respect. That means that businesses should consider adopting a policy that prohibits all harassment. Businesses must investigate allegations of misconduct in the workplace, businesses must not retaliate against employees who complain about this conduct, and managers and supervisors must apply work rules consistently to all employees. If a business does not follow these simple rules, a jury will certainly hold them accountable for not doing so.

So while the rest of the country tunes in to find out who the next president will be, bully bosses should be watching extra closely. Their job may depend on it.

Robert L. Bowman ROBERT L. BOWMAN is a partner with Kramer Rayson LLP in Knoxville. His primary areas of practice are employment law and civil litigation. He received his undergraduate and law degree with honors from the University of Tennessee at Knoxville. Bowman is a member of the Order of Coif, and is a former East Tennessee Delegate to the Executive Council of the Tennessee Bar Association’s Labor and Employment Law Section. He has published articles and lectures frequently on employment law issues in the State of Tennessee. Bowman was recently selected by the Greater Knoxville Business Journal as one of the top “40 under 40,” a listing of business and professional leaders under 40 years of age who are making their mark in East Tennessee.