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Lynne Curry: Bullying isn't illegal -- or is it?

  • Author: Lynne Curry
  • Updated: September 28, 2016
  • Published July 28, 2014

Q: I handle marketing for a large engineering company. Our owners are engineers and not managers. As a result, no one runs things when people problems occur.

To produce proposals, I need to coordinate with two individuals, a department manager and a project manager. Both are bullies and have made my work life a living hell for three years.

When I ask them for materials or concepts for the proposals, they refuse to answer my emails or meet with me, saying they're too busy.

When I visit their offices to ask them questions, they scream at me that I've been around long enough to know the answers.

When I make up proposal content and they read the final proposal, they curse me for misstating key concepts.

I get that marketing is No. 2 and production and billable hours are No. 1. It's just that I can't do my job without information from these two. Then, when our company doesn't land a project because of inadequate developed proposals, marketing gets the blame. As a result, I've not had a raise or bonus for three years.

I've turned in my resignation and plan to take a year off to recoup. Our company offered my two direct reports a promotion into my position. Both turned it down. Neither wants to be screamed at or to work through the night because these two provide information after 5 p.m. the night before the proposal's due date.

In my first year here, I thought these problems were fixable. Our senior leadership told me to "ask nicely" and to "prove myself" and said "it's just the way 'Steve' and 'Mike' are."

In my second year, I begged our HR person for help. She was sympathetic and said she faced the same challenges but bullying wasn't "illegal" unless our screamers targeted me because I was a woman or older. In other words, there was nothing she or I could do. Is that true?

A: Bullying isn't illegal -- or is it? Do bullies have virtual immunity unless they cross the line into discrimination or criminal assault?

Attorney Russell Nogg challenges that assumption, saying a bully's victim may, under certain circumstances, be able to sue bullies for impermissibly and intentionally interfering with the victim's employment relationship. "This gives a victim a legally actionable cause of action," says Nogg.

Nogg adds that a skilled plaintiff's attorney may be able to argue that employers who have evidence of bullying and do not address it may be violating Alaska's doctrine of good faith and fair dealing. Nogg referred to attorney Jason Randal Erb's "The Implied Covenant of Good Faith and Fair Dealing in Alaska," an Alaska Law Review article in which attorney Erb provides multiple examples in which the Alaska Supreme Court applied the good faith and fair dealing doctrine to "effectuate public policy concerns." According to Erb, both parties to any contract need to "act in a manner which a reasonable person would regard as fair."

In the article, attorney Erb concludes "The implied covenant of good faith and fair dealing acts as an implied promise that neither party to a contract will act so as to deprive the other party of the expected benefits of the contractual bargain."

Might bullying be against public policy in the same manner as sexual harassment and race discrimination? According to legal scholar Farnsworth, cited in Erb's article, "Good faith performance has always required the cooperation of one party where it was necessary in order that the other might secure the benefits of the contract." Attorney Erb also notes that "there are significant public policy considerations for protecting a weaker party that has reasonably and justifiably placed its trust in a stronger party. Employees…put great confidence and trust in their employers..."

Although suing is always a last resort, you had a contract with your employer for a job, and your bullies not only forced you out, they cost you bonuses and a raise. Could you sue these bullies? If you did, would it change their ways? According to Nogg, "the epiphany of a bully having to personally pay for and legally defend his or her inappropriate actions might be the best way to stop a bully."

Finally, company owners who don't manage create a power vacuum into which others step. You might hand this column in with your resignation.

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