The #MeToo movement serves as a reminder of how common unlawful workplace harassment continues to be despite the many laws against it. Workplace bullying is also extremely prevalent and warrants attention and action by employers and their legal counsel. Approximately 30 million Americans are victims of bullying behavior in the workplace; another 30 million have witnessed such conduct.¹

Legal professionals also are affected by unlawful harassment and bullying. In its 2019 report, Us Too? Bullying and Sexual Harassment in the Legal Profession, the International Bar Association (IBA) found that “[b]ullying is rife in legal workplaces, affecting: 1 in 2 female respondents and 1 in 3 male respondents.” The report found that sexual harassment also is common, with one in three female respondents and one in 14 male respondents reporting having been sexually harassed in a work context.²

Both harassment and bullying can be toxic to the work environment and have the potential to result in legal liability for employers; therefore, neither type of behavior should be ignored. Lawyers advising employers should understand the legal differences between bullying and unlawful harassment, the effects these behaviors have in the workplace, and methodologies for investigating, taking remedial action, and assisting clients in preventing this conduct.

Legal Differences: Unlawful Harassment and Bullying

Many different federal and state laws prohibit harassment and bullying that is based on a person’s protected class status, such as sex, race, national origin, religion, age, or disability, to name only a few.³ Harassment is unlawful when the conduct is based on the victim’s protected class status and is unwelcome, offensive, and severe or pervasive enough to alter the conditions of employment or create a hostile or abusive work environment.⁴ These laws often provide for the award of damages that include back pay, front pay, compensatory and punitive damages, and attorney fees.⁵

Bullying is defined by the Workplace Bullying Institute as repeated mistreatment of an employee by one or more employees, and includes abusive conduct that is threatening, humiliating, or intimidating.⁶ Bullying conduct might or might not be based on a person’s protected class status.

Bullying that is not based on protected class status is rarely unlawful in the United States.⁷ It is not illegal in Wisconsin. However, Wisconsin courts have recognized that bullying behavior causing physical or mental injury can be covered by the Worker’s Compensation Act (WCA).⁸ The WCA is the exclusive remedy against an employer by an employee who suffers injuries due to bullying in the workplace, and private civil actions for claims, such as negligence or intentional infliction of emotional distress, are therefore not available.⁹

For example, in Jenson v. Employers Mutual Casualty Co.,¹⁰ Jenson was the clerk-treasurer in the village of Solon Springs and brought a claim of intentional infliction of emotional distress against the village based on a pattern of what Jenson deemed to be abusive, bullying behavior by the village’s president. She alleged that the president’s conduct caused her physical and mental disabilities that necessitated a six-week leave of absence. After analysis of the WCA exclusivity provision, Wis. Stat. section 102.03(2), the Wisconsin Supreme Court found that the exclusivity requirement applies even in situations in which the employee’s injury is intentionally inflicted by a fellow employee. Thus, the remedies under Wisconsin law for injuries caused by bullying behavior are limited to the financial and medical benefits under the WCA.

Currently, a bill dealing with abusive work environments is pending in the Wisconsin Legislature before the Assembly Committee on Labor and Integrated Employment. The proposal would amend the exclusivity provisions of the WCA to grant to an individual who has been subjected to an abusive work environment the right to bring a civil action for the recovery of medical expenses, back pay, front pay, compensation for pain and suffering, emotional distress, punitive damages, and attorney fees.¹¹

Effects of Harassment and Bullying in the Workplace

Regardless of whether laws specifically prohibit the conduct or allow for certain types of financial recoveries, bullying and harassment at work can result in significant harm. Bullying or harassment can cause employee-victims to be physically ill and lower their productivity, focus, and ability to interact. In extreme cases, bullying or harassment can lead to post-traumatic stress disorder (PTSD), depression, substance misuse, and even suicide.¹²

Perpetrators’ behavior can result in good employees leaving jobs and remaining staff members feeling demoralized, leading in turn to quantifiable costs to organizations in terms of turnover, hiring, retraining, poor customer relations, and increased leaves of absence and insurance claims. In its recent report, The High Cost of a Toxic Workplace Culture: How Culture Impacts the Workforce – and the Bottom Line (2019), SHRM (the Society for Human Resource Management) found that almost 20 percent of workers in the last five years have resigned due to toxic work cultures, and the associated costs to U.S. employers exceeded $200 billion.

The WCA is the exclusive remedy against an employer by an employee who suffers injuries due to bullying in the workplace, and private civil actions for claims, such as negligence or intentional infliction of emotional distress, are therefore not available.

Within the legal profession, many victims of bullying and harassment also decide to leave their places of employment as a result of the conduct. In its Us Too? report, the IBA found that 65 percent of respondents who were bullied and 37 percent of respondents who were sexually harassed had either left or were thinking about leaving the workplaces where the bullying or harassment occurred.¹³

Considering the negative effects on a work environment and the liability and related costs, it is important for employers and their legal counsel to recognize the risk behaviors and respond appropriately to allegations of harassment or bullying.

Investigating Bullying and Unlawful Harassment

Investigations are the primary tool used to detect and root out bullying and harassment. Prompt and thorough investigations have long been a legal requirement for employers presented with allegations of potential unlawful harassment in the workplace.¹⁴

Even though bullying of individuals in nonprotected classes is not illegal, it likely violates other employer policies. Thus, employers should, for the sake of their staff and the fact that bullying is bad for business, investigate any complaints or other reasons to believe that someone is creating a toxic work culture. Moreover, an investigation is often needed to ensure that the complained-of behavior is not, in fact, based on the target’s protected class and, consequently, illegal under both state and federal laws.

Investigations should be started as soon as possible. Ensuring a prompt investigation meets the law’s requirement to move in an expeditious fashion in cases of unlawful harassment,¹⁵ and it assists in the preservation of evidence. In addition, many employees are fearful about making a complaint or participating in an investigation, so moving quickly helps to obtain needed information from the complainant and witnesses before they change their minds about cooperating. Legal counsel should also discuss with employers whether interim measures are needed while an investigation is pending, such as placing the accused individual on leave during the investigation or otherwise separating the complainant and the accused individual, if the seriousness of the allegations warrant doing so.¹⁶

Perpetrators’ behavior can result in good employees leaving jobs and remaining staff members feeling demoralized, leading in turn to quantifiable costs to organizations in terms of turnover, hiring, retraining, poor customer relations, and increased leaves of absence and insurance claims.

The employer should select an appropriate investigator. The investigator should be trained and experienced and possess core soft skills, such as the ability to demonstrate empathy and establish rapport to encourage cooperation from the complainant and witnesses.¹⁷ The investigator must be fair and impartial, keep an open mind, and use active listening skills as well. Good investigators also will have training in minimizing their own biases and being intentional about avoiding them during the investigative process.^18\

In many instances, the organization should hire an outside investigator. It can be difficult for in-house staff to be impartial and objective, especially if the investigator knows the parties involved and has already formulated beliefs about them.

Another consideration is attorney-client privilege. When the investigation is done by or under the direction of a lawyer, the investigation might be cloaked by the privilege.¹⁹ However, it is important that the employer understand that the privilege might not be absolute. If litigation later ensues, the employer might have to waive the privilege, for example, to demonstrate that the investigation was prompt and thorough or that no unlawful harassment occurred.²⁰ It is crucial that the investigator operate under the assumption that the privilege will be waived at some point and to keep this in mind when making decisions and documenting the investigation.

In both bullying and unlawful harassment investigations, the primary focus of fact-finding is on the nature, frequency, severity, and effects of the alleged conduct. This information is needed to determine whether the elements of unlawful harassment exist,²¹ and in the case of bullying, to determine whether there is a pattern of behavior that is more than rude or disrespectful and that crosses the line to bullying.

Remedial and Preventive Measures

Once an investigation is completed, the investigator typically will determine whether the alleged conduct occurred, whether the conduct rose to the level of bullying or harassment, and whether any laws or employer policies were violated. If the investigator finds that bullying or harassment took place, the employer should take remedial measures to end the inappropriate behaviors. An employer who takes prompt and effective action to address and prevent further unlawful behavior may have a defense to a claim of harassment under state and federal antidiscrimination laws.²²

When deciding which remedial measures to take, the most important consideration is whether the measures taken will stop the behavior from recurring. Termination of employment is not always necessary when other remedial measures may be appropriate and sufficient to address the inappropriate behavior.

If the perpetrator is retained, behavioral expectations should be agreed to in writing. The perpetrator also should be asked to agree in writing to cooperate with any support that will be provided, such as coaching, counseling, referral to an employee assistance program, or a performance improvement plan. A refusal to agree, or any other indication that the perpetrator has no intention or is incapable of changing, will most likely necessitate termination of employment.

The #MeToo movement and studies that show the ongoing existence of unlawful harassment and toxic work environments should serve as a call for all employers, including those in the legal profession, to take preventive action.²³ Anita Hill,²⁴ who made allegations of sexual harassment against then U.S. Supreme Court Justice-nominee Clarence Thomas, has aptly stated that workplace leaders must “examine their cultures and procedures and then begin the difficult work of eliminating the [toxic] behavior.”²⁵

Prevention requires a commitment from top leaders to implement and insist on adherence to organizational values that include zero tolerance for bullying and harassment. The zero-tolerance policy must be enforced, be regularly and consistently communicated, and include an effective complaint and investigation process that results in prompt remedial action when inappropriate conduct is found. (Please see the sidebar, “Key Measures to Prevent Unlawful Harassment and Toxic Work Environments.”)

Accountability is key to elimination and prevention. If managers make clear that certain types of conduct are not tolerated, the behaviors will be greatly reduced or eliminated because employees know the response will be swift and severe.

Conclusion

Bullying and unlawful harassment create toxic work cultures. Employers who ignore or tolerate these behaviors do so at their peril and expense in terms of loss of key employees; hiring, retraining, and insurance costs; and potential costs if litigation ensues. The use of trained investigators skilled at workplace investigations is necessary to identify and eradicate bullying and unlawful harassment.

However, prevention of these behaviors starts at the top, and managers can take many measures to assess potential risks and head off inappropriate behavior before legal liability is created. Legal counsel representing employers should be prepared to assist their clients in taking steps to prevent bullying and harassment and to address complaints or reports of such conduct.

Endnotes

¹ Workplace Bullying Inst., U.S. Workplace Bullying Survey (2017).

² Kieran Pender, Int’l Bar Ass’n Legal Pol’y & Research Unit, Us Too? Bullying and Sexual Harassment in the Legal Profession 8 (May 2019) [hereinafter Us Too?].

³ Some applicable laws include the Wisconsin Fair Employment Act (WFEA), Wis. Stat. §§ 111.31-.395; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17; Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634; Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. This list is not exhaustive.

⁴ Robinson v. Perales, 894 F.3d 818, 828 (7th Cir. 2018); U.S. EEOC, Harassment (last visited April 12, 2020).

⁵ Civil Rights Act of 1991, 42 U.S.C. § 1981. The WFEA limits remedies to back pay and benefits and does not allow compensatory- or punitive-damages awards. Wis. Stat. § 111.39(4)(c).

⁶ Workplace Bullying Inst., The WBI Definition of Workplace Bullying, (last visited April 12, 2020).

⁷ Workplace Bullying Inst., Frequently Asked Questions: 14. Is There a Law Against Workplace Bullying in the U.S.?, (last visited April 12, 2020); Healthy Workplace Bill, https://healthyworkplacebill.org/ (last visited April 12, 2020).

⁸ Wis. Stat. ch. 102.

⁹ Wis. Stat. § 102.03(2).

¹⁰ Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 468 N.W. 2d 1 (1991) (concluding that complained-of conduct did not constitute an “assault intended to cause bodily harm,” which is an exception to exclusivity provisions).

¹¹ Wis. Assemb. B. 116 (2019-2020).

¹² Workplace Bullying Inst., Impact on Employee Health Survey (2012); WORKSAFE New Zealand, Preventing and Responding to Bullying at Work (2017).

¹³ Us Too?, supra note 2, at 9.

¹⁴ Cerros v. Steel Tech. Inc. 398 F.3d 944, 954 (7th Cir. 2005).

¹⁵ EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999).

¹⁶ EEOC, Questions and Answers: Small Employers on Employer Liability for Harassment by Supervisors (June 21, 1999).

¹⁷ EEOC, supra note 15.

¹⁸ Amy Oppenheimer, The Psychology of Bias: Understanding and Eliminating Bias in Investigations (May 2012). 

¹⁹ Upjohn Co. v. United States, 449 U.S. 383 (1981).

²⁰ See, e.g., Barbini v. First Niagara Bank N.A., 331 F.R.D. 454, 461-62 (S.D.N.Y. 2019) (noting that human resource director’s testimony about counsel’s involvement in sex-harassment investigation constituted waiver of attorney-client privilege when it went further than “generalized references to counsel’s advice”).

²¹ Robinson, 398 F.3d at 952.

²² Swyear v. Fare Foods Corp., 911 F.3d 874 (7th Cir. 2018).

²³ David J. Parnell & Patrick J. McKenna, Bullying, Lack of Respect, Me First, Law Firms Suffer the Behaviour They Tolerate (2016).

²⁴ Nina Totenberg, NPR, A Timeline of Clarence Thomas-Anita Hill Controversy as Kavanaugh to Face Accuser (Sept. 23, 2018).

²⁵ Anita Hill, Preface, in Zero Tolerance: Best Practices for Combatting Sex-Based Harassment in the Legal Profession 8 (ABA Comm’n on Women in the Profession, 2018).

²⁶ One study of AmLaw 100 firms found that more than 50 percent of responding firms had reduced a partner’s compensation based on the partner’s poor treatment of other employees. The authors suggest making good behavior an evaluative component to the firm compensation structure as one preventive measure. See Parnell & McKenna, supra note 23.