Bullies in your practice

Sticks and stones may break my bones, but words can never hurt me-a childhood rhyme for many to show that mean words will not be harmful and will be ignored. Unfortunately bullies exist everywhere from the school yard to healthcare employers. Nurses bully nurses. Nurses have reported being bullied by doctors and even doctors claim to being bullied by their fellow doctors. For many in healthcare, words and actions can be harmful, and in some instances can lead to jury awards in the hundreds of thousands of dollars.

In Raess v. Doescher, the Indiana Supreme Court upheld a jury verdict of more than $300,000 for a perfusionist who had been bullied by a surgeon. The surgeon had approached the perfusionist, angry over reports that the perfusionist had reported him to hospital administration for his poor treatment of other perfusionists. The surgeon advanced angrily with clenched fists, beet red and in such a manner that the perfusionist believed he was going to be hit. The surgeon stopped short of throwing a punch but did tell him that he was “history” and “finished.”

At trial, over the surgeon’s objection aimed at limiting the subsequent testimony, the perfusionist and his expert witness were able to testify that the surgeon was a “workplace abuser” and that the altercation was “an episode of workplace bullying.” Although there was no cause of action for “workplace bullying” under Indiana law, the jury found that the surgeon had assaulted the perfusionist.

What is workplace bullying?

For some, the word “bully” conjures up images of the biggest kid in school who tormented his classmates and may now refer to a coworker who not only partakes in physical conduct and threats, but perpetuates hurtful gossip, humiliation and isolation of their colleagues. Workplace bullying can also refer to failure to assist when needed, like when a senior nurse intentionally fails to assist a new nurse in learning her duties.

The WBI has defined bullying to include repeated mistreatment; abusive conduct that is threatening, humiliating, or intimidating; sabotage and even verbal abuse. Belittling comments, persistent performance criticism and withholding resources are also forms of abusive conduct.

With the role of technology increasing in the workplace, bullying is no longer limited to in-person conduct. WBI has identified common examples of virtual conduct to include:

• Unwanted links to dating services or sexually charged material;
• Business emails that require a reply sent only to targeted employees (such as those on vacations or out on disability) so they can reply even when on leave;
• Harmfully targeting co-workers through social media platforms like Facebook; or
• Sending threatening voicemails, emails or text messages.
• Excluding employees by, for example, keeping them informed of departmental changes or social functions

Acts of legitimate authority to control work and supervise employee performance are not considered bullying, nor is, rudeness or other discourteous behaviors among employees.

Isn’t bullying at work also a “hostile work environment”?

Under federal, state and even local laws, the harassment of employees based on membership in a protected category, including race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability or genetic information, is prohibited. Unlawful workplace harassment may consist of offensive conduct based on one or more of the protected categories above that is so severe or pervasive that it creates a hostile or offensive work environment or results in an adverse employment decision (such as being fired or demoted). While a bully may target some colleagues because of their membership in a protected class, bullying becomes more indiscriminate as the bully tries to control any number of his or her co-workers without regard to personal characteristics-the equal opportunity harasser.

Merely picking on a co-worker, without any consideration for the person’s protected class, is not unlawful harassment (although it may be bullying, despite not being unlawful). As courts have repeatedly noted, equal employment laws do not require employees to be nice to each other. In fact, an employer has no legal obligation to ensure that employees engage in professional conduct when interacting with each other.

Bullying behavior can encompass elements associated with a hostile work environment claim. It commonly includes systematic, annoying and continued conduct including demands, uninvited/unwelcome conduct, threats and in certain circumstances can even exceed the egregious conduct often associated with harassment claims.

However, only about 20 percent of bullying cases contain activity that might be considered “discriminatory” under the law-in other words, while far from desirable, 80 percent of workplace bullying may not include actual “illegal” conduct. In fact, courts have consistently rejected hostile work environment claims when an employee attempts to establish a case based upon bullying conduct unrelated to the employee’s membership in a protected class.

While bullies may be able to operate outside of the traditional employment harassment laws, it does not mean they can avoid legal liability entirely as evidenced in Raess v. Doescher. Physical threats and conduct can amount to assault and battery, and bullying conduct can open the door to possibly violating other employment laws. In fact, legislators in 30 states have proposed anti-bullying laws but only three states have enacted limited workplace bullying laws which mostly address public employment. In short, there is really no cause of action for workplace bullying.

Is workplace bullying common, particularly in healthcare?

Unfortunately, according to the Occupational Safety and Health Administration, 21 percent of nurses reported being physically assaulted at work and more than 50 percent reported being verbally abused. A 2017 survey by the Workplace Bullying Institute (WBI) found that 19 percent of American workers were bullied and that 61 percent were aware of abusive conduct in the workplace. And according to WBI, bullying is four times more common than sexual or racial harassment. Some studies indicate that as many as 98 percent of all employees have experienced workplace bullying at some point in their career.

Both males and females can be workplace bullies – although statistically most bullies tend to be male. The WBI’s most recent survey found that 70 percent of bullies are male, and the remaining 30 percent are female. When female bullies are involved in the conduct, they target female co-workers 67 percent of the time. WBI’s 2017 survey also found that 61 percent of bullies hold a higher rank than the target.

Bullying is not often the characteristic of a desperate employee trying to hold on to his or her job. Studies have found a strong correlation between bullying, social competence and job performance. Bullies often perform well when meeting their employer’s performance expectations, and they can be charming, presentable, socially skilled and professionally successful employees.

How to handle the workplace bully

There are common mistakes employers make when handling a bully. Rather than addressing the problem by confronting the employee regarding his/her behavior, employers will try to rationalize the conduct by acknowledging credibility or job performance. As part of this rationalization, management may try to appease the bully in the short term in hopes that the aggressiveness will stop once the bully gets what he wants; however, bullies frequently engage in aggressive behavior for extended periods of time, rendering this strategy ineffective. Employers may also blame both parties involved for misconduct, or even avoid addressing the issue because most employees think everything is “fine.”

However, healthcare employers should still take steps to address bullying in the workplace to avoid other possible legal claims and resulting costs such as increased employee turnover. Company culture can enable a bully’s problematic behavior if respect is not a core value and something demanded from employers.

For years, Mission Hospital, part of the Mission Health System in Asheville, N.C., has embraced MERIT principles for employees to require an atmosphere of respect-Mercy, Excellence, Respect, Integrity, Trust/Teamwork. While this may sound simplistic, it largely works.

Employers must also work to eliminate the “bystander effect.” This arises when co-workers observe and fail to assist an individual that may need help. These co-workers assume that someone else will step in and help, so no action is taken.

Proactive employers can prevent these situations by adopting a zero-tolerance approach for workplace bullying. Senior healthcare executives cannot overlook improper conduct simply because the bully is a profit source or a strong provider or because they would rather avoid a difficult conversation with a nurse or doctor. Bullying needs to be identified and addressed through the proper channels regardless of the employee’s stature.

For instance, physician bullies may be addressed by medical staff by having a conversation over a cup of coffee or through a medical staff peer review process. However, with the increased number of employed physicians, most bullying issues involving employed physicians should be addressed through human resources.

Additionally, all employees must recognize that the employer does not tolerate such conduct and if the employees observe it, they should report it. One way to facilitate this is to have a written policy that not only prohibits bullying but also explains what employees should do when they are either the target of a bully or simply witness a co-worker engaging in bullying behavior. Having a policy, however, is not enough as healthcare employers should also train employees to recognize and appropriately address workplace bullying. Training to build teamwork and camaraderie in addition to reinforcing positive behaviors further serves to lessen workplace bullying.

Jonathan Yarbrough is a partner with Constangy, Brooks, Smith & Prophete and is based in the firm’s Asheville, N.C. office. He may be reached at jyarbrough@constangy.com.