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, loss 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.
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.
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 (first comprehensive law review article on workplace bullying, including a thorough discussion of IIED claims for workplace bullying-type behaviors).
Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace, Berkeley Journal of Employment and Labor Law, 1998 (explains why private-sector employees have few free speech rights; slightly dated but basic legal discussion largely holds up today).
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).