At-will employment and the legality of workplace bullying: A brutal combo punch

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.

In October I wrote a short post criticizing the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. In America — in contrast to many other nations — at-will is the presumptive employment relationship.

This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

Hollomon v. Keadle

When I first started researching potential legal protections against workplace bullying, I assumed that a tort claim called intentional infliction of emotional distress (IIED) would provide severely abused workers with sufficient redress.

I was in for a big surprise: Most bullying-type lawsuits that allege IIED are unsuccessful, with courts routinely dismissing claims even before they get to trial, mostly on grounds that the offending behavior was not sufficiently outrageous. (Furthermore, in many states, IIED claims against employers are precluded by workers’ compensation laws.)

My “poster case” for this reasoning came in Hollomon v. Keadle, a 1996 Arkansas Supreme Court decisions that involved a female employee, Hollomon, who worked for a male physician, Keadle, for two years before she voluntarily left the job.

Hollomon claimed that during this period of employment, “Keadle repeatedly cursed her and referred to her with offensive terms, such as ‘white nigger,’ ‘slut,’ ‘whore,’ and ‘the ignorance of Glenwood, Arkansas’.” Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside the home were “whores and prostitutes.”

According to Hollomon, Keadle “told her that he had connections with the mob” and mentioned “that he carried a gun,” allegedly to “intimidate her and to suggest that he would have her killed if she quit or caused trouble.” Hollomon claimed that as a result of this conduct, she suffered from “stomach problems, oss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.”

The Arkansas Supreme Court ruled that even if every one of Hollomon’s allegations were true, Keadle’s behaviors were not sufficiently outrageous to allow the case to proceed to trial.

Hypothetically speaking

You may be thinking, what about self-help measures? What if Hollomon had stood up to this guy and basically told him off, perhaps right there in the waiting room where he routinely humiliated her in front of patients? What if she would’ve told him, you pompous, threatening jerk, how can you treat me like this in front of your own patients? Have you no decency?

Had this occurred, the rule of at-will employment would’ve permitted Keadle to fire Hollomon immediately, on the spot, while adding a few more choice words on his own.

No free speech rights

But then you might ask, doesn’t Hollomon have a right of free speech under the First Amendment? Doesn’t she have a right to dish it right back to Keadle?

In a nutshell, no. Constitutional free-speech protections do not apply to private-sector employees. (They also are very limited for public-sector workers.) While it’s possible that anti-retaliation provisions of other laws might protect certain types of whistle blowing and reporting activities, there are no obvious possibilities under this scenario.

Indeed, had this been a larger medical practice with an HR office, the at-will rule would’ve permitted the firing of Hollomon merely for filing a complaint about Keadle. The only remotely viable avenue that I can see for Hollomon in approaching HR, looking at it from a 2011 rather than 1996 lens, is taking some of Doc Keadle’s abusive language and trying to fashion it into a sexual harassment complaint. But that could be a stretch.

Yes, there’s more

Let’s take this scenario one more step. Suppose that after being terminated following her hypothetical outburst in the waiting room, Hollomon applied for unemployment benefits.

Unfortunately, it’s possible the employer could successfully oppose her claim on grounds she was fired for misconduct. You see, misconduct is one of the standard reasons why unemployment benefits can be denied. While state courts and agencies vary widely in what they define as misconduct, in some states this may be sufficient to deny her application.

One-way boxing match

Talk about a one-two punch: The combination of at-will employment and the general legality of workplace bullying means that an employee being subjected to targeted, ongoing psychological abuse at the hands of a supervisor often has little, if any, legal protection to stand upon.

It’s cases like Hollomon v. Keadle that prompted me to draft the Healthy Workplace Bill, which provides severely bullied workers with a claim for damages, creates legal incentives for employers to minimize potential liability, and protects those who report workplace bullying from retaliation. After all, one-way boxing matches are monstrously cruel, even if they are “just” a battle of words.

***

For more about the Healthy Workplace Bill, please go here.

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For serious study

If you really want to study the relevant inadequacies of current American employment law, several of my law review articles will either keep you up all night or help you get to sleep:

The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection – Georgetown Law Journal, 2000 (includes a thorough discussion of IIED claims for workplace bullying-type behaviors).

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment – Comparative Labor Law & Policy Journal, 2010 (detailing ongoing research and advocacy efforts, including the Healthy Workplace Bill).

Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial WorkplaceBerkeley Journal of Employment and Labor Law, 1998 (explains why private-sector employees have few free speech rights).

Human Dignity and American Employment Law – University of Richmond Law Review, 2009 (setting out the philosophical and public policy parameters for a system of employment law that safeguards human dignity).

6 responses

  1. As a supervisor trying to get my government agency to fire an abusive employee, I knew my days were numbered when the staff lawyer told me that the offender would have to hit, yes hit, one of my subordinates before they would deal with him. Psychological battering was ok ( oh yes, I could “discipline” i.e. slap him on the wrist) but it was going to take a physical attack before any real action was taken. I finally left — sick from the stress of having to watch the bullying and being poweless to stop it. In this case, employment at will would have saved the day — the bully would have been out of there the first time he started in on the first of his 4 female victims.

  2. It is refreshing to finally hear someone besides myself exposing the employment cancer called “At Will”!! This article raises some interesting points about the “One Way boxing match” the “No free speech rights” revealed in the Hollomon v. Keadle case.

    I have long held that “At Will” is a weapon of intimidation employers routinely use to abuse and violate the rights of career seekers and employees. Bosses are emboldened by a law that allows them to operate a workplace cultural environment that perpetuates an atmosphere of fear and firing on a whim.

    “At Will” in my view is the greatest impediment and threat to a healthy and progressive American workplace. It fosters a I’m “master” you are the “slave” mindset that impedes all the “employee engagement” and “employee motivation” notions. How can there ever be any true engagement and motivation derived from an institutionalized employment doctrine that by design creates the opposite effect?

    This statement, “In America — in contrast to many other nations — at-will is the presumptive employment relationship.” begs this question. Why are virtually all the western industrialized nations except the U.S. non-at will? Here’s one theory, take a look at the racial demographic of these countries versus the U.S.

    Hmmm….Britain, France, Canada, Italy, Japan, others, have racial diversity of around 5% or less of their total workforce? In America that number is 30% or greater? Could it be that America is rabidly clinging to “At Will” for hidden discrimination pretext purposes?

    I have written several articles on the subject. One article talks about why I support the (EFCA) Employee Free Choice Act which I believe will and should bury “At Will” scourge once and for all!

    Those that care to check it can find it here;

    http://tinyurl.com/6t2nhcn

    Regards,
    Yancey

  3. Dave and Yancey
    I know first hand how troubling this subject is first hand and everything you both have stated i have experienced and it is one maon reason i tolerated teh abuse until i unfortunately developed ptsd in January of 2011 and have not returned to work. Even after i went out sick and my psyychologist asked for reasonable accomodations so i might try and return i was fired. I did win my workers comp case and the insurance company for my previous employer has since tryed several times to find ways to get the claim dropped and they have failed, because my claim is real and i have an excellent psychologist that is a professor in psychology and has 35 years experience. Most recently the insurance company asked for a second opinion from a psychiatrist of their choice and i sat with him for an hour and tol dmy story as i have many times before, telling the truth all the way. He ruled in my favor, because my pain and symptoms and illness are real. I think because of everything you david have done and the workplace bully institute has done, the word is out and professionals are seeing the impact of workplace bullying, however we still need the law. In the case Holloman vs Keadle one thing i might have reccomended was to tape record the abusive threats by concealing a micro casette tape in my pocket and either take the threats of the gun to the law or when i was fired for talking back, this could bew played or threatened to be played to unemployment people. In NYs unemployment judges are very smart and they usually favor the employee if there is a good track record of employment, they read between the lines very well. WE NEED THIS LAW. But i would encourage employees to fight back in private also, for example if one is being threatened behind closed doors, threaten back and let the bully know you are not going to tolerate being threatened and abused and action will be taken. Behind closed doors is one s word against anothers, but it can send a clear message that you are not going to tolerate it. Now they can fire you becuase you are at will, but unless they can prove misconduct or some other means of violation, they will have to pay unemployment. This will sustain you until you find another job. I would encourage people to take any other information they know about and use it also in terms of letting an abusive employer you are nt fooling around, such as finding violations they are commiting in the workplace in other ways and turn them in anonymously, becuase employers do have an obligation to provide a safe and healthy workplace, and many times there are violations that they do not want out. You have to play dirty as long as it is legal, protect yourself and do not let them push you around and have the upper hand on your health, your future and your money. Work shouldnt hurt and it is time to get the word out. Take action get involved. spread the word about the bill and the workplace bully institute and keep your heads up. If you are honest and you have been injured as i was and am, you will win!!!!!!!!!!!!!!!!!!!!!

  4. You gotta be kiddin me. You know…I have to admit that up until now I have been a Capitalist and….for the most part…believed in the separation of Public vs Private. But between my personal experience recently and articles like these, I believe that the US’s version of Capitalistic “protections” has become twisted and evil. This is not because it is an inheritably bad system per se’. It started out with good intentions I believe. It’s that man has grown to be without conscious and abusive with this system. And *that’s* it’s Achilles heel. It is flawed at best and evil at worst.
    But…to be honest, I have ALWAYS had problems with the “at-will” laws. If you check the Georgia code (where I live) it actually talks about the “Master / Servant (slave)” relationship…..within the Georgia Code!! This is the fundamental, legal, “relationship” that is assumed the Company / Employee arrangement. I was floored when I read it. Talk about insane! It literally makes me nauseous. It is high time that the US takes a new look at these worker rights issues and take civilized, humane action. I.E….do the right thing for once.

  5. I see little question that at-will employment is an anachronism that needs to be supplanted by a sustainable social contract between employees, as suppliers of talent and skill, and the inherent owners of specific types of work, and employing organizations, as suppliers of facilities, capital, and work organization. Given the difficulty of introducing such fundamental change in the current legislative climate, and the unlikelihood of relief coming from the US Supreme Court, does it make more sense to encourage workers of all types to enter into written contracts with employers that specify appropriate responsibilities for both parties?

    I would be curious to read more about other potentially relevant causes of action to address workplace bullying, such as defamation, slander, and false light. After all, in many cases the objective of workplace bullying is to destroy the reputation of the target, and thereby destroy her or his ability to continue functioning in the current job, as well as to damage or destroy the target’s future employability.

    I would also be curious as to whether the concepts of negligent supervision and negligent retention of the bully, or the tort of outrage, have been applied in workplace bullying cases.

  6. Pingback: Bullying and At-Will Employment

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