New Statute: Anti-bullying Policy Creates Immunity for Workplace Emotional Distress Claims

Over the last several years, the topic of “bullying” has become more prevalent in our society and has inevitably warranted increased attention in the workplace.  “Bullying” — or mental anguish or emotional distress as it is defined by the courts — has thus been a recent topic of discussion for employment law practitioners.

What steps can employers take to minimize this behavior in the workplace? And what liability does an employer face for the behavior of its employees?

In 2014, the General Assembly passed the Healthy Workplace Act, which provided public employers immunity for workplace bullying claims if they adopted a model policy.1 Recently, though, the General Assembly amended the Healthy Workplace Act (on a unanimous vote, no less) to extend its immunity to private employers. It was signed by Gov. Lee on April 23, 2019, and took effect immediately.

Currently, a Tennessee employer may be subject to claims for “infliction of mental anguish based on its employees’ abusive conduct” if a worker believes they have been the victim of bullying. We have seen intentional and negligent infliction of emotional distress claims in the employment context paired with hostile work environment claims under the Tennessee Human Rights Act (THRA) or Title VII.2 However, under the new law, an employer can obtain legal immunity if it adopts the model policy created by the Tennessee Advisory Commission on Intergovernmental Relations (TACIR)3 or adopts a similar policy that satisfies the same goals set forth in the new statute.

Bullying, Mental Anguish and Emotional Distress

The term “bullying” is the more common usage of the legal terms “mental anguish” and “emotional distress.”4 The Tennessee Supreme Court has construed “mental anguish” to be synonymous with “emotional distress.” The court has also held that “emotional distress” claims require a showing of “serious or severe mental injury.”5 These claims do not include “every minor disturbance to a person’s mental tranquility,” but only “serious or severe emotional injuries.”6

The Tennessee Supreme Court has provided six “nonexclusive factors” to determine whether a plaintiff has “suffered a serious mental injury”:

  1. Evidence of physiological manifestations of emotional distress, including but not limited to nausea, vomiting, headaches, severe weight loss or gain, and the like;
     
  2. Evidence of psychological manifestations of emotional distress, including but not limited to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug and/or alcohol abuse, and unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment and worry;
     
  3. Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or psychiatric disorder such as post-traumatic stress disorder, clinical depression, traumatically induced neurosis or psychosis, or phobia, and/or was prescribed medication;
     
  4. Evidence regarding the duration and intensity of the claimant’s physiological symptoms, psychological symptoms, and medical treatment;
     
  5. Other evidence that the defendant’s conduct caused the plaintiff to suffer significant impairment in his or her daily functioning; and
     
  6. In certain instances, the extreme and outrageous character of the defendant’s conduct is itself important evidence of serious mental injury.7

Immunity for Employers Under the New Law

Under the new law, private employers can receive the same immunity for emotional distress claims that was formerly only available to public employers. The law now immunizes an employer (private or public) from suit for negligent or intentional infliction of emotional distress based on its employees’ abusive conduct, but only “if an employer adopts the model policy created by TACIR pursuant to § 50-1-503(a) or adopts a policy that conforms to the requirements set out in § 50-1-503(b).”8

It’s also important to understand what the law does not do. First, the new law does not alter the burden of proof on emotional distress claims. As it has always been, a plaintiff suing a private employer for negligent or intentional infliction of emotional distress based on the abusive conduct of an employee bears the burden of proof.9 All the new law does is provide immunity for employers that have satisfied the requirements of Tenn. Code Ann. § 50-1-504. It does not alter the burden of proof in a civil lawsuit against a private employer.

Second, the new law does not create a private right of action for plaintiffs if their employers choose not to adopt the model policy. Indeed, in Tennessee, for a new law to create a private right of action, “the legislation must contain express language creating or conferring the right.”10 Here, there is no such language. The law only creates an affirmative defense — not a private right of action — should the employer choose to take advantage of this new opportunity for immunity.

Third, the new law does nothing “to limit the personal liability of an employee for any abusive conduct in the workplace.”11 So while employers may now have an affirmative defense to bullying claims, the new law does nothing to protect the alleged bullies themselves.

Finally, this new law does not affect discrimination, harassment or retaliation claims based on membership in a protected class or engagement in protected activity under federal or state law. Employers are still subject to liability, even if they enact the model policy, for mistreatment based on race, gender, disability or any other protected class. Keep in mind, that claims of unlawful harassment and discrimination invoke an entirely different framework than “bullying,” which falls under the umbrella of emotional distress claims.

The Model Policy: A Path Toward Immunity

Adopting the model policy — or one that similarly satisfies the goals of the statute  — is the only means by which an employer can achieve immunity for emotional distress claims. The TACIR’s Model Policy contains the following provisions:

  1. Defines “abusive conduct.” Abusive conduct includes acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, which can include but is not limited to: repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or the sabotage or undermining of an employee’s work performance in the workplace. Abusive conduct does not include routine coaching, reasonable work assignments, or policy-driven disciplinary procedures.
     
  2. Employer responsibility. The policy sets forth expectations for supervisors, which include setting good examples through courteous and respectful behavior, and that complaints will be addressed in a timely manner.
     
  3. Employee responsibility. Employees are expected to treat all other employees with dignity and respect in an effort to promote fairness and equity in the workplace.
     
  4. Anti-retaliation. Employees shall not be retaliated against for exercising their rights under the Healthy Workplace policy.
     
  5. Training for Supervisors and Employees. The policy encourages supervisors and employees to participate in training on the policy, which should identify factors that contribute to a respectful workplace, familiarize participants with responsibilities under the policy, and provide steps to address an abusive conduct incident.
     
  6. Complaint Process. The policy should clearly outline the process for filing complaints, the procedures for investigation, and the resulting actions for the various parties involved. The complaint process should mirror existing disciplinary processes.

 The newly enacted law may prove beneficial to both Tennessee employees and their employers. Employees benefit from the establishment of a policy defining and prohibiting bullying which provides an avenue to complaint, and ultimately obtain relief. Importantly, this policy relates to bullying conduct that is not otherwise covered by the THRA and Title VII, and other discrimination and retaliation laws. Employers who enact the Model Policy are taking affirmative steps to improve their workplace environments, while at the same time receiving a legal shield for any emotional distress claims that may arise in the future.

Employers who wish to take advantage of this new legislation have no reason to delay — the law is already in effect.



EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.


NOTES

1. Tenn. Code Ann. § 50-1-501 et seq.; 2014 Pub. Acts, c. 997.
2. See, e.g., Bazemore v. Performance Food Grp., Inc., 478 S.W.3d 628 (Tenn. Ct. App. 2015) (plaintiff’s sexual harassment claim was paired with claims for intentional infliction of emotional distress and negligent infliction of emotional distress, among others).
3. Model Abusive Conduct Prevention Policy Pursuant to Public Chapter 997, the Healthy Workplace Act, https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-
january/2015Tab%204HealthyWorkplace.pdf.
4. Sallee v. Barrett, 171 S.W.3d 822, 824 n.1 (Tenn. 2005).
5. Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012).
6. Id. at 208 (quoting Ramsey v. Beavers, 931 S.W.2d 527, 532 (Tenn. 1996)).
7. Id. at 209-210.
8. Tenn. Code Ann. § 50-1-504.
9. See, e.g., Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996) (noting a “plaintiff must present material evidence as to each of the five elements” required for a negligent infliction of emotional distress claim).
10. Tenn. Code Ann. § 1-3-119.
11. Tenn. Cod Ann. § 50-1-504.
 

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