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Workplace Bullying Is Not Illegal in the U.S., What Is?
Outcome Tally: Workers' Rights -- 3 Employers' Rights -- 2
On June 19, two decisions were rendered
In 1996, the Knolls Atomic Power Lab implemented layoffs by instructing supervisors to consider three factors (performance, flexibility and critical skills) when choosing individuals for elimination. Thirty-one lost jobs, 30 of whom were over 40 years old. In a 7-1 vote (note that the decision was 12 years after the fact!), the Court ruled that the burden of proof is on employers to show that layoff decisions are based on factors other than age. However, employers still have the affirmative defense opportunity (procedure to escape liability) to persuade courts that "reasonable factors other than age" (RFOA) can account for their layoff decisions. Reasonableness remains vague. Read the decision.
Meacham et al. v. Knolls Atomic Power Laboratory et al. (No. 06-1505)
A California state law prohibits employers who receive more than $10,000 in state funding from using those funds to influence union organizing, either as a deterrence or to assist. The pro-employer/anti-union plaintiff in this case was the US Chamber of Commerce. The Supreme Court voted 7-2 that federal law pre-empts state efforts to regulate communication. Further, the majority ruled that separating the funding sources for unions to review places too great a burden on employers. Thus, the federal National Labor Relations Act takes precedence over California's employer-limiting law. Read the decision.
Chamber of Commerce of the USA v. Brown, Attorney General of California (No. 06-939)
On June 9, in Engquist v. Oregon Dept. of Agriculture et al. brought by an Oregon public employee, the Court ruled 6 to 3 that "arbitrary, vindictive and malicious" actions taken against the employee, Anup Enquist, had to be allowed. Roberts, the Chief Justice, said that workplace supervisors need to be able to make a "subjective individualized decision" to promote or demote employees without risk of being dragged into federal court over such decisions. Two limitations are important. First, Enquist still had her rights to complain about discrimination based on gender and national origin (she is from India). She was not granted the additional right to seek equal protection from malicious acts apart from the civil rights violation. The second limitation, the ruling applies only to government employer actions against public employees.
Read the decision. It begins with a readable summary of the case.
Engquist v. Oregon Dept. of Agriculture et al. (No. O7-747)
On May 27, the Court confirmed that retaliation for complaining about discrimination has equal standing with an original discrimination complaint. Bullied targets know too well that retaliation for fighting back or daring to expose the bully is nearly certain. And it is often worse than the original bullying tactics.
In Cracker Barrel v. Humphries (7 to 2 vote), an African-American assistant manager's rights to complain about discriminatory remarks by his supervisor and the firing of a black waitress which led to retalation in the form of a false reason to terminate him were upheld. Read the decision.
CBOCS West v. Humphries (No. O6-1431)
Also on May 27, in Gomez-Perez v. United States Postal Service (6 to 3 vote), the postal worker who filed an age discrimination complaint which led to reduced work hours and false accusations about her being a sexual harasser was exonerated. The Gomez-Perez case extended protection under the ADEA (anti-age discrimination act) to federal workers, not just private sector workers. Read the decision.
Gomez-Perez v. Potter, Postmaster General (No. 06-1321)
The May decisions broke no new legal ground. Nor did they signify a shift in the Court's attitudes toward employee rights. They were noteworthy because (1) despite the conservative majority on the Court, justices deferred to "stare decisis," following the precedent of earlier decisions by the Court, and (2) they supported workers rights in discrimination cases unlike the 2007 Ledbetter decision in which the individual's rights were lost because of a filing time limit violation.
"The phrase 'workplace bullying,' like other general terms used to characterize a person's behavior, is an entirely appropriate consideration in determining the issues before the jury. ... workplace bullying could "be considered a form of intentional infliction of emotional distress."
The bridge between actionable IIED and currently legal and non-actionable workplace bullying has been made. Read the details of the case, watch Supreme Court arguments, download court documents.
Dr. Gary Namie, expert witness in the case and the reason the trial was dubbed the nation's first "bullying trial," does provide expert witness services in the U.S. and Canada.
- Tom Devine, Legal Director of the Government Accountability Project, reviews the personal and legal questions potential whistleblowers should answer BEFORE declaring what they know. However, the advice is still useful if the person, driven by principle & conscience, has already acted.
- Determining if your company treated you illegally when it dumped you. By the attorneys Paul H. Tobias and Susan Sauter who wrote Job Rights & Survival Strategies: A Handbook for Terminated Employees
- An FAQ adapted from another Nolo Press book Your Rights in the Workplace by Barbara Kate Repa.
Burlington Industries vs. Ellerth
Faragher vs. City of Boca Raton
Warning: Unfortunately, the firm DRC recommended in the current versions of our book, The Bully At Work, has underperformed. We have received nothing but complaints about poor service. Try Allison & Taylor instead.