Workplace Harassment in the Academic Environment

Over the last decade, claims of workplace harassment have received greater attention.[1] Sometimes called “workplace bullying,” such harassment is commonly defined as behavior by a perpetrator that may involve repeated verbal abuse, offensive conduct that may threaten, humiliate, or intimidate a target, or efforts to sabotage a target’s performance.[2] As commonly defined, the subject behavior is intentional, results in physical or psychological harm to the target, and makes the target’s job performance more difficult.[3] At times, perpetrators, who may include administrators and faculty members, combine their efforts to abuse and harass the target, a phenomenon known as “mobbing.”[4] Both federal and state statutory law currently provide remedies for such behavior where it is motivated by discriminatory animus and the target is a member of a protected class (such as gender or national origin).[5] But no U.S. jurisdiction currently recognizes a cause of action against this sort of behavior when it is not linked to discrimination—in contrast to several European countries that provide remedies for workplace bullying untethered to discriminatory animus. Even though legislation to provide a remedy for such behavior has been introduced in several states, it has not been enacted, and it is often accompanied by strong opposition from employer interests.[6] Courts have likewise been reluctant to expand the law to accommodate such claims.[7] This Article discusses the development of harassment claims that might be pursued in a judicial forum, with an emphasis in the academic context. It suggests that special characteristics, including a decentralized environment, a focus on academic pursuits, and a hierarchical intellectual environment, may allow such behaviors to go unchecked at an academic institution.[8] At the same time, it cautions that categorizing behavior as workplace bullying is necessarily a nuanced determination and that, therefore, any statutory or administrative measures must take care to protect academic freedom. The free exchange of ideas in teaching and research (and faculty and departmental governance) bears the potential at all times to offend powerful and not-so-powerful internal and external interests alike. Accordingly, any measure designed to deal with workplace bullying must recognize this concern and preserve intellectual and creative discourse. That said, like discrimination, behavior that takes the form of harassment or bullying simply has no place on a college campus. Thus, this Article urges academic institutions to raise awareness of workplace harassment and suggests remedial mechanisms to counteract and prevent this problem. [1]. See David C. Yamada, Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment, 32 Comp. Lab. L. & Pol’y J. 251, 251–53 (2010). [2]. Definition of Workplace Bullying, Workplace Bullying Inst., http://www.workplace bullying.org/individuals/problem/definition (last visited Nov. 7, 2011). [3]. Michael E. Chaplin, Workplace Bullying: The Problem and the Cure, 12 U. Pa. J. Bus. L. 437, 445 (2010); Katherine Lippel, The Law of Workplace Bullying: An International Overview, 32 Comp. Lab. L. & Pol’y J. 1, 2–3 (2010) (contrasting the scholarly definition of workplace bullying, which addresses frequency and duration of negative behavior and excludes isolated events or equal strength interactions, with the lay definition of bullying as negative behavior that harms the target). [4]. Audrey Williams June, ‘Mobbing’ Can Damage More Than Careers, Professors Are Told at Conference, Chron. of Higher Educ. (June 11, 2009), http://chronicle.com/article/ Mobbing-Can-Damage-More-Than/47736/. The distinction between bullying and mobbing has been explained: Workplace mobbing is like bullying, in that the object is to rob the target of dignity and self-respect. Here, however, it is not a single swaggering bully that the target is up against, but the juggernaut of collective will. The message to the target is that everybody wants you out of here. Bullies often play leading roles in mobbing cases, whether as targets or perpetrators. Kenneth Westhues, Summary for the Workplace Mobbing Conference (Waterloo Anti-Mobbing Instruments, Novotel, Brisbane), Oct. 14–15, 2004, at 1, available at http://arts.uwaterloo.ca/ ~kwesthue/wami.pdf. Thus, mobbing is group harassment, “a process of abusive behaviors inflicted over time.” Sousa v. Roque, 578 F.3d 164, 167 (2d Cir. 2009). Despite the original distinction between workplace bullying and mobbing, the two terms often are used interchangeably. Jordan F. Kaplan, Help Is on the Way: A Recent Case Sheds Light on Workplace Bullying, 47 Hous. L. Rev. 141, 144 (2010). [5]. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2006); Alex Long, State Anti-Discrimination Law as a Model for Amending the Americans With Disabilities Act, 65 U. Pitt. L. Rev. 597, 601 (2004). [6]. For example, the Society for Human Resource Management reportedly opposed such legislation in New York on the grounds that it is generally “bad for business” and specifically that (1) human resource professionals are dedicated advocates for employees; (2) employers have adequate incentives to combat workplace harassment because it affects the health and morale of the workforce (as well as the image and profitability of the employers); (3) employers have studied the issue and many have codes of conduct and dispute resolution mechanisms to address it; and (4) such legislation would undermine existing efforts to combat the problem, strain employer-employee relationships, and increase the cost of doing business―given that employers will be called upon to defend frivolous lawsuits from unscrupulous employees or incur liability for lost wages, medical expenses, emotional distress, punitive damages and attorney’s fees. See G. Namie, SHRM Opposes Anti-Bullying Healthy Workplace Bill, Healthy Workplace Bill (June 18, 2010, 4:34 PM), http://healthyworkplacebill.org/blog/?p=144. [7]. See Thomas v. N. Telecom, Inc., 157 F. Supp. 2d 627, 635 (M.D. N.C. 2000) (noting that workplace conduct rarely supports a claim for intentional infliction of emotional distress (“IIED”)); see also Crocker v. Griffin, No. COA09-1000, 2010 WL 1961258, at *4–5 (N.C. Ct. App. May 18, 2010) (action brought by four former employees listing twenty-eight acts of supervisor involving “yelling, shouting, or saying insulting or demeaning things” did not state an IIED claim). One court has affirmed a verdict in favor of a plaintiff on an assault theory while allowing an expert witness to testify as to the presence of workplace bullying. Raess v. Doescher, 883 N.E.2d 790, 796 (Ind. 2008). No one rationale completely supports the result in the case. The panel majority determined that the plaintiff failed to properly object to the expert’s testimony on workplace bullying and therefore any error was forfeited. Id. at 797. It further determined that that the phrase “workplace bullying” was a general descriptive term that could be a form of IIED. Id. at 799. Another member of the panel majority found the plaintiff’s objection sufficient, but any error in admissibility harmless because the expert’s testimony went to the merits of an IIED claim which the jury rejected. Id. (Sullivan, J., concurring in result). A dissenting member of the panel determined that the objection had been preserved, and that the testimony concerning workplace bullying was erroneous and not harmless. Id. at 801–02 (Boehm, J., dissenting). [8]. See Piper Fogg, Academic Bullies, Chron. of Higher Educ., Sept. 12, 2008, at B10