Perceptual harassment

Employees may soon sue employers for supervisor bullying

Carol McCaulley
Schwabe, Williamson & Wyatt

Momentum is growing in the State of Washington to protect employees from being "bullied" or "harassed" by supervisors. Sometimes referred to as "anti-bullying" legislation, supporters of the bill want to expand the protection provided to employees for harassment based on protected characteristics to include harassment against any member of the workforce. Both employers and employees will benefit from keeping abreast of this proposed legislation.

Momentum is growing in the State of Washington to protect employees from being "bullied" or "harassed" by supervisors. Sometimes referred to as "anti-bullying" legislation, supporters of the bill want to expand the protection provided to employees for harassment based on protected characteristics to include harassment against any member of the workforce. Both employers and employees will benefit from keeping abreast of this proposed legislation.

House Bill 2142. This proposed bill would expand the Washington Law Against Discrimination (WLAD) to include a prohibition against nondiscriminatory "abusive conduct." It is currently in committee. Under this bill, supervisory "abusive conduct" is defined to include any conduct a reasonable employee could perceive as being hostile. Specific examples include offensive, threatening, intimidating or humiliating conduct or the "gratuitous sabotage" or "undermining of a person’s work performance."

The preamble to the bill cites surveys and studies which allegedly document that between 16 percent and 21 percent of employees experience health-endangering bullying in the workplace. If these surveys are true and House Bill 2142 passes, up to 21 percent of employees might file claims against their employers in the future.

Intent vs. reality. While House Bill 2142 is intended to prohibit malicious conduct which is unrelated to an employer’s legitimate business interests, it will most likely lead to a tremendous increase in litigation, devoid of true merit, against employers. All employers, whether subject to the WLAD or not, will be affected.

If this or similar legislation passes, it will allow employees to raise additional claims. Washington allows employees to sue employers for "wrongful discharge" if they can show that their termination violated a public policy. If this anti-bullying legislation is passed, employees who quit or are discharged might bring claims alleging that the termination was due to the "abusive conduct" of their supervisor. The current bill’s specific reference to poor performance makes such claims particularly likely. Employees, discharged for poor performance, may raise claims against their employers for wrongful discharge by alleging that the supervisor caused the performance problem.

In reality, some work environments, such as heavy manufacturing or construction, have traditionally fostered more aggressive supervisory techniques. Additionally, supervisors come with a wide range of temperaments. Some of the most productive leaders in a company may have little patience in dealing with employee discipline or performance correction. In this less than perfect world, incidents of tension in the workplace are difficult for any employer to fully control.

What can employers do? First, employers should let their state representatives know how they feel about this proposed legislation. Second, with the threat of this type of legislation, and as a good business practice, employers should be proactive and spend more time selecting and training supervisors. Supervisors are often picked based on performance in nonsupervisory roles.

Employers need to carefully select supervisors with the right skill set to make them effective. In addition, employers need to provide supervisors with training to develop their supervisory skills. Supervisors must learn to recognize the cultural, social, physical and emotional influences that affect their interaction with subordinates. They also need to learn how to recognize different styles of learning and working. For example, some employees need to have more details given to them in order to perform a task, while others thrive best when allowed to consider the big picture for each task.

Ultimately, whether anti-bullying laws are enacted or not, proper supervisory training will save employers money. Most employees want to feel good about their work and their performance. A good supervisor can make a workforce thrive.

Carol McCaulley is an attorney with local law firm Schwabe, Williamson & Wyatt. She can be reached at 360-905-1101 or cmccaulley@schwabe.com.