Ad3 annotated bibliography

Get perfect grades by consistently using Place your order and get a quality paper today. Take advantage of our current 20% discount by using the coupon code GET20

Order a Similar Paper Order a Different Paper



Use the Attached Template and structure an annotated bibliography APA 7th edition format of the Article attached


250 words

ARTICLE-  ArbitratorsReview of Bullying in the Workplace

Hickox, Stacy A.

 Kaminski, Michelle 


Example Reference Format

Baker, V. L., & Pifer, M. J. (2011). The role of relationships in the transition from doctor to independent scholar. Studies in Continuing Education, 33(1), 5-17. 2010.515569

Provide a reference and an annotation (150-250 words) that includes important details about the article for each of the sources.

Annotations are descriptive and critical assessments of literature that help researchers evaluate texts and determine relevancy in relation to a research project. Ultimately, it is a note-taking tool that fosters critical thinking and helps you evaluate the source material for possible later use. Instead of reading articles and forgetting what you have read, you have a convenient document full of helpful information. An annotated bibliography can help you see the bigger picture of the literature you are reading. It can help you visualize the overall status of the topic, as well as where your unique question might fit into the field of literature. 




Arbitrators’ Review of Bullying in the Workplace. By: Hickox, Stacy A., Kaminski, Michelle, ABA Journal of
Labor & Employment Law, 21564809, Oct2021, Vol. 35, Issue 3

OmniFile Full Text Select (H.W. Wilson)

Arbitrators’ Review of Bullying in the Workplace

This content may contain URLs/links that would redirect you to a non-EBSCO site. EBSCO does not endorse the accuracy or
accessibility of these sites, nor of the content therein. ✖


Bad behavior calls for consequences. Bad behavior in the workplace, characterized as bullying, can include physical assault, threats,
interference with work, and persistent verbal attacks. Workplace bullying places a heavy burden on targeted employees and harms
employers in terms of higher absenteeism, health care usage, and turnover, as well as lost productivity. Targets of bullying may seek
redress through legal claims against the bully and their employer, but litigation only provides damages for bullying that rises to the
level of outrageous conduct. Without any comprehensive legislation prohibiting bullying in the workplace in the United States,
litigation alone does not adequately provide for changes in the workplace to prevent future bullying, changes that might allow the
target to remain at work and others to enjoy a civil workplace. Employers can choose to discipline bullies, but such discipline often is
subject to the review of arbitrators empowered to interpret and apply employers’ policies under a collective bargaining agreement or
an employment arbitration program. While arbitration has been criticized as a means to enforce employee rights, in this article we
argue it to be a potentially more effective tool than litigation.

The first part of this paper explores the significant impact of bullying. Despite the physical and psychological harm to the targets and
the negative impact on workplace culture and productivity, many employers have not adopted specific policies prohibiting bullying
behavior and often fail to fully address bullying behavior when it is reported. Therefore, targets may seek other options for redress.

The second and third parts of this paper review both judicial approaches to bullying behavior and labor and employment arbitration
as an alternative. Only a small percentage of targets of workplace bullying take their cases to court, and those may be the most
extreme cases.

The third part of this paper discusses an in-depth review of 135 arbitration awards, most of which determined whether an employer
had just cause to discipline a bully.[ 1] These claims arise under a collective bargaining agreement that protects alleged bullies
against unwarranted discipline, and under increasingly common employment arbitration programs covering non-unionized
employees.[ 2] The fourth part of the paper compares the two approaches-litigation and arbitration. The fifth and final section
highlights some unique and creative approaches to the reduction of bullying as demonstrated in arbitration awards and makes
recommendations for employers and unions.

I. The Extent and Impact of Bullying
The extent and significant impact of bullying behavior in American workplaces calls for attention to better methods to prevent such
behavior. The Workplace Bullying Institute has defined workplace bullying as “repeated, harmful mistreatment” of one or more
employees, known as targets, which can include conduct that is “threatening, intimidating, or humiliating,” or interferes with work.[ 3]
Examples can include “demeaning behavior, . . . isolation, . . . work sabotage, . . . harm to reputation . . . and abusive supervision.”[


4] Bullying typically involves such behavior that is “repeated[] and regular[] . . . and over a period of time . . . .”[ 5] Experts have
suggested that bullying should be measured by both its intensity and frequency,[ 6] including conduct that is repetitive, oppressive,
and causes harm.[ 7]

Some would include discriminatory harassment as one form of bullying, but, for the purposes of this analysis, we only consider
abusive conduct that did not result from a target’s membership in a group that is protected against discrimination. This analysis
does not review statutory protections for discrimination or include arbitration awards addressing claims of employees who have
been disciplined for harassment (as defined by Title VII and the other anti-discrimination statutes) for two main reasons. First,
several other studies have analyzed the role of arbitrators in reviewing the claims of harassers.[ 8] Second, targets of discriminatory
harassment enjoy at least some protection under federal and state anti-discrimination statutes, including the potential for injunctive
relief and accommodations. This protection has been analyzed extensively by both the Equal Employment Opportunity Commission
and various experts.[ 9] In contrast, because antidiscrimination protections only apply to harassment based on and because of the
target’s membership in a protected class,[ 10] many bullying targets lack protection from those statutes.[ 11] Targets of bullying that is
not demonstrably based on membership in a protected class are limited to the relief provided under common law and some health
and safety statutes, as described below.

Regardless of the definition applied, we recognize that bullying is widespread in American workplaces.[ 12] More than sixty million
Americans report being affected by workplace bullying: anywhere from nineteen percent to forty-four percent of American workers
have been bullied, and another nineteen percent have witnessed bullying behavior. [ 13] Among targets of bullying, twenty-nine
percent remain silent, while only seventeen percent seek formal resolution.[ 14] This failure to report bullying may result from
employers’ lack of responsiveness to the conduct, or a fear of retaliation, a negative reaction to reporting it.[ 15] Based on this data, it
is fair to say that bullying is widespread and yet often remains unaddressed in American workplaces.

Workplace bullying can produce a variety of harms for the targets, including “mental and physical health problems, post-traumatic
stress, burnout, increased intentions to leave,” and reduced job satisfaction and organizational commitment.[ 16] Negative health
effects can include sleep disruption, loss of concentration or memory, mood swings, and states of agitation or anger.[ 17] Moreover,
the strain caused by bullying can cause psychological issues, including post-traumatic stress disorder,[ 18] as well as debilitating
anxiety (reported by eighty percent), panic attacks (fifty-two percent), and clinical depression (forty-nine percent).[ 19]

At work, targets of bullying lose focus, waste time worrying, are less helpful, and may reduce work effort or time at work, suffer a
decline in work performance, and lose commitment to the organization.[ 20] Bullying also can cause resentment, leading employees
to become “actively disengaged.”[ 21] The work of teams of a target can also be negatively affected by increasing friction and
unpleasantness as well as encouraging risk avoidance, which may affect customers or clients negatively and make it harder to hire or
retain good talent.[ 22] In the long term, targets suffer forced transfers, constructive discharge without reasonable cause (twenty-four
percent), or simply quit to reverse one’s decline in health and sanity (forty percent).[ 23] These effects are magnified for low-wage
workers.[ 24]

Employers may believe that protections against bullying undermine high performance expectations and competition between
employees. [ 25] In fact, competition or even conflict between employees does not necessarily constitute workplace bullying.[ 26] But
when a supervisor or coworker’s behavior escalates into actual bullying, as defined above, the effects outlined above lead to negative
consequences for employers. [ 27] Overall, bullying can “undermine[] legitimate business interests,” [ 28] including, as described,
decreased productivity and individual employee performance,[ 29] reduced motivation, and a decline in an organization’s “flexibility
and adaptability.”[ 30] While not always recognized by employers, bullying can lead to higher turnover among both targets and
observers of bullying[ 31] and negatively impact recruiting new talent because of a reputation for condoning bullying.[ 32] These costs
to both the targets of bullying and their employers warrant closer attention to the factors that lead to the occurrence of bullying.

Research on workplace bullying has tended to focus on organizational triggers, including leadership deficits, as well as the demands
and resources for a particular job.[ 33] Experts have suggested a variety of training and dispute resolution systems to address these
factors.[ 34] In contrast, experts on bullying prevention dedicate relatively little attention to remedies or punishment, typically only
noting generally that the punishment of bullies should be “commensurate with frequency, severity, and historical patterns.”[ 35] For
example, in a lengthy discussion of appropriate organizational responses to bullying, one expert included the relatively general

recommendation that employers should have “informal and formal sanctions available for employees found to have been perpetrators
of workplace bullying/mobbing.”[ 36]

Despite this lack of attention to punishment and enforcement of behavioral standards, the level of bullying in an organization depends
in large part on that organization’s standard operating procedures, norms of behavior, and rules of conduct delineating what is
unacceptable or acceptable behavior.[ 37] Without such organizational norms or standards, “aggressive individuals are prone to
define their own set of ‘acceptable behaviors.'”[ 38]

Despite the need for explicit norms, employers often fail to take any affirmative action to address bullying behavior.[ 39] Research
shows that punitive measures are taken against only five to six percent of workplace bullies.[ 40] One study found that, even when a
complaint was made, only twenty-three percent of employer investigations resulted in positive changes for targets; in contrast, for
forty-six percent, nothing changed after conducting an inadequate investigation.[ 41] A 2014 survey likewise found that only twenty-
eight percent of employers showed concern for the targets, enforced policies and procedures against bullying, or condemned bullying
behavior, compared to twenty-five percent of employers who denied that the conduct occurred, sixteen percent who discounted it,
fifteen percent who rationalized it, and sixteen percent who defended or even encouraged it.[ 42] These studies demonstrate
employers’ common reluctance to impose discipline or other consequences on a bully, even where a targeted worker has complained.

Even an employer that adopts written anti-harassment policies may fail to take either reconciliatory or punitive measures against a
bully.[ 43] An employer’s failure to address bullying can perpetuate bullying by signaling to supervisors and coworkers that the
employer tolerates bullying behavior.[ 44] Elimination of bullying requires “the willingness and authority to terminate chronic bullies
from the organization,” as well as supporting the targets of bullying.[ 45] The evidence above suggests that internal organizational
processes in many organizations are insufficient to stop bullying and prevent future occurrences. Targets of bullying need other
avenues to address their claims. Therefore, it is important to understand how both courts that review the claims of targets and
arbitrators who review the discipline of alleged bullies make their decisions.

II. Judicial Response to Bullying
Claims by employees seeking to address bullying typically arrive in the judicial system as tort claims under state law. Judicial
remedies for bullying claims that do not invoke anti-discrimination protections are limited to payment of compensation to the target
by the bully and/ or the employer, but only if some actionable behavior can be proven. Workers’ compensation programs may also
provide benefits for a target, if their harm is recognized as compensable and arose out of and in the course of their employment.
Occupational safety and health statutes focus on fines to incentivize employers to maintain a safe workplace, including the absence
of bullying, but do not provide damages for harm suffered by a target and cannot direct an employer to end bullying. Targets who
develop a disability because of bullying can seek accommodations under disability anti-discrimination protections, but some relief
from bullying, such as transfer away from a bully, may be considered not reasonable and, therefore, not required. This review of
potential relief for targets of bullying from common law and statutory protection provides an important context for the review of
arbitration awards addressing bullying behavior in the subsequent part of this paper.

A. Limitations of Court-Ordered Tort Remedies for Bullying
Targets rely primarily on state tort claims to seek damages for the harm caused by bullying, unless the bullying behavior is linked to
the target’s membership in a group that is protected against discrimination.[ 46] With very little federal or state statutory protection
against non-discriminatory bullying, approximately eighty percent of bullying targets are left with insufficient or no legal recourse.[ 47]
Targets must rely on potential remedies under state common law, including, for example, assault, battery, or intentional infliction of
emotional distress (IIED). These claims are rarely pursued; successful claims are almost nonexistent, compared to discrimination
claims.[ 48] Even when a target pursues a tort claim, the decisions outlined below demonstrate that assault, battery, and IIED claims
require substantial proof of intent and significant harm to the target to support monetary damages.[ 49] Plaintiffs rarely succeed
because of the high standard required for IIED claims.

1. Lack of Injunctive Relief
Tort claims alleging assault, battery, and/or IIED provide no direct means to remove a bully from a workplace or to stop bullying
because those claims typically do not include any injunctive relief to end the bullying.[ 50] Similarly, injunctive relief has consistently
been denied for plaintiffs in defamation claims so long as monetary damages will suffice. [ 51] In contrast, anti-discrimination laws

allow for injunctive relief,[ 52] and, in rare circumstances, courts may award injunctive relief if the facts show that the employer will not
otherwise take adequate remedial measures in response to future harassment.[ 53] While in theory a civil suit for assault, battery, or
IIED could seek injunctive relief against future bullying behavior,[ 54] a request for injunctive relief would be moot without a
“reasonable expectation that the conduct will recur.”[ 55]

Despite this potential for equitable relief, the assault and IIED claims reviewed here consistently fail to provide any injunctive relief
against future bullying behavior where the claim did not invoke anti-discrimination protections.[ 56] Thus, if the target has left her job
to avoid the bullying or has been discharged in retaliation for complaining about the bullying, an assault or IIED claim will not result in
her reinstatement or a court order to end the bullying behavior. Even if money damages are awarded against the bully but not the
employer, such relief will not necessarily influence an employer’s response to bullying in the future.

2. Difficulty in Proving Intent
Assault, battery, and IIED claims all require proof of the bully’s unlawful intent to inflict immediate injury to the target.[ 57] The torts of
assault and battery typically require proof of the bully’s intent “to cause a harmful or offensive touching” of the target, or an imminent
“apprehension of such contact.”[ 58] For an example of a successful claim, an employee survived an appeal of a successful jury
verdict where the bully “aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping
veins, . . . screaming and swearing at him, back[ed] the target up against a wall,” instilling a belief in the target that the bully was
going to hit him.[ 59] The Indiana Supreme Court concluded that, in this rare instance, the targeted employee presented substantial
evidence that assault had occurred and that the bully acted with the requisite intent, supporting $325,000 in compensatory damages.[
60] This decision received national attention as “evidence of a growing liability risk that counsels employers to take workplace
bullying more seriously,” even though the employer was not held liable.[ 61] In contrast to this unusual example of success, most
assault and battery claims against a bully have been dismissed based on a lack of proof of unlawful intent.[ 62]

Similarly, the intent required for an IIED claim is difficult to prove[ 63] because the target must establish that the bully intends to cause
that distress or was at least reckless in causing it.[ 64] Because intent can be ambiguous, an IIED claim may depend upon the
context in which the bullying behavior occurs, including duration and organizational norms.[ 65] Thus, if an organization lacks specific
prohibitions or fails to punish bullying, the target will find it more difficult to prove that the bullying was intentionally outrageous. In
addition, the target of bullying must establish that the bully caused severe or extreme emotional distress for the target.[ 66] If the
employer lacks an adequate system for reporting, or if past inaction discourages reporting, the target may be unable to show
causation or that her harm was serious enough because she did not complain at the time.

3. Proof of Outrageousness
Even if a target can establish a bully’s intent, causation, and serious enough harm, a target’s failure to show that bullying behavior is
extreme and outrageous results in the dismissal of many IIED claims.[ 67] To satisfy this requirement, a bully’s conduct must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”[ 68] Both federal and state courts often dismiss IIED claims because “mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities” do not constitute “extreme and outrageous conduct.”[ 69] For
example, yelling and screaming that is rude and insensitive typically will not establish sufficient outrageous behavior.[ 70]

Bullying will not be considered extreme and outrageous if it only disturbs the “emotional tranquility in the workplace” [ 71] or
constitutes “pervasive” and “ordinary” misbehavior in the workplace.[ 72] For example, sending a note with “mere abusive language
and insults”[ 73] to a coworker or subjecting a coworker to “isolating behavior, insensitive comments, and hostile and unpleasant
conversations” were not deemed to be outrageous and extreme behaviors.[ 74] Thus, only bullying conduct that is neither “typically
encountered nor expected in the course of one’s employment” will be sufficient to support an IIED claim.[ 75] Under this standard, a
target of bullying will find it more difficult to support an IIED claim in a workplace where bullying often goes unpunished. At the same
time, an employer that reacts promptly to a complaint of bullying by investigating and disciplining the bully and relocating the target
can establish that the bullying conduct was not extreme and outrageous.[ 76]

IIED claims are often conflated with claims of battery, by requiring physical violence against the target.[ 77] For example, while yelling
at and physically threatening subordinates in a workplace were not extreme and outrageous, physically assaulting and restraining a
target prevented dismissal of a related IIED claim.[ 78] Without physical harm or threats thereof connected with assault and battery, it

is unusual for courts to deny a motion to dismiss an IIED claims, unless the bullying behavior goes “well beyond the parameters of the
typical workplace dispute.”[ 79] In one case, a principal’s false accusation of marijuana use by a teacher, exposing her to “social
approbation of a high degree,” supported a refusal to dismiss that teacher’s IIED claim.[ 80] In some jurisdictions, an IIED claim may
be supported if a supervisor “clearly abuses” his power over the targeted employee,[ 81] or where the bullying creates a pattern of
persistent verbal and physical abuse.[ 82] Persistence is required even in these more employee-friendly courts, as one court
explained that an IIED claim may be supported by “a continuous and ongoing pattern of . . . extreme, intolerable, and outrageous
conduct.”[ 83] Unless the target of bullying brings a claim in one of these more sympathetic jurisdictions, it will be difficult for her to
establish the outrageousness required in an IIED claim without some evidence of physical harm or at least the threat thereof.

B. Limited Potential for Employer Liability
Even if the bully’s conduct was intentional and assaultive or otherwise outrageous, a bullying target’s tort claim does not necessarily
result in the liability of the bully’s employer without proof of vicarious liability or independent wrongdoing by the employer.[ 84] This
limitation on employer liability has been justified by the need to allow an employer to manage its operations.[ 85] Such limitations on
employer liability have been criticized as allowing abusive behavior in the workplace without requiring that employers explain why
“some amount of intentionally inflicted pain is acceptable.”[ 86] Without the potential for significant liability for bullying behavior of their
employees, employers have less incentive to address bullying that occurs in their workplaces.

One route to vicarious liability for employee conduct is if the conduct is “the kind the employee is employed to perform.”[ 87] Because
bullying typically is not part of an employee’s job duties, it is difficult to hold an employer liable under this approach.[ 88] Courts often
hold an employer harmless where the bullying conduct of its manager was not “within the course and scope” of that employee’s
authority or employment.[ 89] To establish employer liability, the bullying must serve the employer’s interests and occur within
“authorized time and space limits.”[ 90] Thus, employers typically will only be held liable if the bullying behavior occurred under the
employer’s control, where the bully abused power delegated by the employer, or where the employer encouraged[ 91] or failed to
address known bullying behavior.[ 92] Thus, an employer could be held liable for a bully’s actions in the rare situation where the
employer provided “de facto” authorization for the bully’s acts.[ 93]

In addition to the limited potential liability for intentional tort claims, an employer might be liable to targets of bullying under the theory
of negligent infliction of emotional distress, based on an employer’s duty to protect its employees against intentional infliction of
emotional distress by other employees.[ 94] Such a claim will only be successful if the bully’s conduct was unreasonable and created
an “unreasonable risk of foreseeable emotional harm” to the target/plaintiff,[ 95] overcoming the widespread belief that “individuals in
the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a
result of conduct in the workplace.”[ 96] For example, two different school employees’ claims of negligent infliction of emotional
distress survived motions to dismiss based on allegations that the school breached its duty to protect its employees against imminent,
serious harm,[ 97] particularly where the employer could foresee that the bully’s conduct could create stress and anxiety so as to
cause the target physical harm.[ 98] Without an intent to cause or foreseeability of harm, however, an employer will not be liable for
harm inflicted by a bully.

Like a claim for negligent infliction of emotional distress, a claim of negligent supervision could result in an employer’s liability for
bullying if the employer “is negligent or reckless in the employment of improper persons or instrumentalities in work involving risk of
harm to others.”[ 99] Thus, a target of bullying would need to prove that her employer breached a “duty to forbid or prevent negligent
or other tortious conduct” by the bully and that its breach of that duty proximately caused the target’s injury, which caused an “actual
loss or damage.”[ 100] Under this standard, the target would still need to prove an underlying tort by the bully, as described above. In
addition, the employer must have known, or should have known, that the bully had a propensity for bullying conduct.[ 101] Although
the employer need not foresee the particular injury to the target, it must foresee an “appreciable risk of harm to others” based on the
bully’s previous conduct.[ 102] Unless the employer engages in its own actionable negligent behavior,[ 103] the bully’s conduct must
violate the law to hold the employer liable.[ 104] This standard makes it difficult for employees to succeed with such claims unless the
bullying occurred because of the target’s membership in a protected class.

Targets of bullying generally have been unsuccessful in holding employers liable under some public policy exception to employment
at will which would require protection against bullying. An Ohio court, for example, refused to “recognize a claim for a violation of
public policy on the basis of bullying.”[ 105] Without such job security protection, courts have been reluctant to recognize such an

exception, under the Supreme Court’s general guidance that protections against discrimination did not intend to require that
employers adopt or enforce a “general civility code.”[ 106] In contrast, a teacher with statutorily guaranteed tenure survived a motion
to dismiss her wrongful discharge claim based on her endurance of bullying at her school.[ 107] A small sample of employees have
argued successfully that employer policies constitute an enforceable promise to employees, and more employers are adopting
policies against workplace bullying.[ 108] For example, an employee manual’s provision entitled “Work Place Violence” containing
affirmative promises and clear policies against harassment was found to have created an implied contract, enforceable under the
covenant of good faith and fair dealing.[ 109] The same case stated that an exception to employment at will is only created by an
employer’s affirmative promises to protect its employees, such that a city’s policy that it “will not tolerate verbal or physical conduct by
any employee which harasses” can create an enforceable contract right.[ 110] Such claims are similar to prohibitions against bullying
through arbitration, discussed below, which are enforced through discipline of the bully by the employer.

This review demonstrates that, because of the difficulty of proving assault, battery, IIED, and other claims and because of the limits of
employer liability, the viability of addressing workplace bullying via tort claims against a bully and/or his employer is extremely
constricted. The threat of such claims may be sufficient for employers to address the most severe, persistent forms of bullying, but will
not extend to shorter term or less violent forms of bullying that still impact the targets’ well-being and the health of the overall
workplace. Moreover, an employer’s tolerance of abusive behavior in the past may make it more difficult for a target to show that the
bullying behavior is outrageous and therefore should result in damages. While the potential for damages may inspire employers to
address known bullying behavior before it becomes outrageous, even a successful tort claim will not result in an order that the
employer remove the bully or reinstate a target who has fled that abusive workplace.

C. Alternative Statutory Remedies
Like tort claims, workers’ compensation systems and occupational safety and health standards under federal and state legislation do
not provide, and sometimes block, adequate remedies to prevent workplace bullying. Injuries that might otherwise support an IIED
claim can be incorporated into a state’s workers’ compensation system which provides an exclusive remedy for workplace injuries.[
111] Thus, a viable workers’ compensation claim, based on work-related injuries that were not intended by the employer, would bar a
tort action by the target against the employer.[ 112] Importantly, an employer’s intentional acts may only be excluded from the
limitations of a workers’ compensation system if the bully acted intentionally as the “alter ego of the corporation and not merely a
foreman, supervisor or manager.”[ 113]

If the target cannot show that the bullying resulted in a disability related to the workplace, instead basing her claim on allegations of
humiliation, embarrassment, public ridicule, and personal indignity, she may be successful in showing that she did not suffer an injury
covered by workers’ compensation, and therefore be allowed to proceed with an IIED claim.[ 114] Additionally, a workers’
compensation system may not bar a target’s recovery against individual bullies who have acted “outside the scope of their
employment.”[ 115]

Even if the claim proceeds under a workers’ compensation system, however, the target runs the risk of denial, because mental
trauma claims are rarely recognized by a workers’ compensation system, depending on how “disability” is defined by a particular
workers’ compensation system.[ 116] A successful worker’s compensation claim would provide a target with a percentage of lost
wages and medical expenses, but not reinstatement or any injunctive relief to address the bullying directly. Financial liability for a
target’s worker’s compensation may indirectly influence an employer to address bullying, but only if the target has a viable claim.

Federal and state occupational safety and health laws provide some additional statutory protection against bullying behaviors, under
employers’ duty to provide a “reasonably safe workplace.”[ 117] For example, Minnesota statutes providing that “every person in the
state has a right to live free from violence” and the public policy interests of a violence-free workplace[ 118] helped support the claim
of an employee who was bullied and then retaliated against for reporting that bullying.[ 119] However, federal and state OSHA
regulations typically focus on physical hazards and may not provide compensation for harm resulting from psychological or stress-
related hazards.[ 120] Even if bullying does violate standards prohibiting physical harm, violations could result in employer fines, but
fail to provide for damages for the target.[ 121] Thus, OSHA has been criticized as failing to provide for deterrence of workplace
bullying.[ 122]

The model Healthy Workplace Bill offers a statutory solution to workplace bullying that has not been readily adopted in the United
States.[ 123] This model bill is the product of the Healthy Workplace Campaign and the efforts of its national director, Dr. Gary
Namie, and law professor David C. Yamada, which began in 2002.[ 124] The proposed bill prohibits employers from allowing an
“abusive work environment,” in which an employee is subjected to abusive conduct that a “reasonable person would find hostile”
and that causes tangible harm.[ 125] A target can obtain both compensatory damages and injunctive relief against future bullying
behavior, but an employer can avoid liability by “exercising reasonable care” to prevent or address bullying behavior.[ 126] The bill
emphasizes definitions of bully-related behavior that is prohibited and focuses less attention on appropriate employer responses to
bullying.[ 127] Both California and Tennessee have adopted legislation to address bullying, with California requiring training to prevent
abusive conduct and Tennessee requiring adoption of a policy against abusive conduct.[ 128] These first attempts to legislate
regarding bullying directly, however, do not include an independent cause of action for targets.[ 129] Unless and until states or the
federal governments adopt more specific statutory prohibitions against bullying behavior that include a private right of action to ensure
enforcement, targets are left with the limited relief under assault and IIED claims, in addition to employer policies and collective
bargaining agreements (CBAs) enforced mainly through arbitration, as discussed below.

D. Accommodations for Targets
The common law and statutory remedies discussed above may provide damages for the target or impose some fines on an employer,
but they do not provide for a direct order to end the bullying so that the target can continue working. Given that bullying can lead to
both physical and psychiatric disabilities,[ 130] which would be recognized under the Americans with Disabilities Act (ADA),[ 131]
targets should be provided with reasonable accommodations unless the employer establishes that such accommodations would
impose an undue hardship on the operation of its business.[ 132] However, many courts have been reluctant to require that
employers provide a wide range of accommodations for targets of bullying.

Reasonable accommodation can include job restructuring or reassignment of non-essential job duties or reassignment to a vacant
position, [ 133] which could help to alleviate a bullying situation.[ 134] Even so, targets of bullying often have been unsuccessful in
obtaining a transfer to escape bullying.[ 135] Changes in management style, even a style that constitutes bullying, have been deemed
unreasonable because working under a harassing supervisor or with bullying coworkers are deemed essential parts of the job, and
bullying behavior has been characterized as a “natural, necessary, and defensible prerogative of superior rank,” requiring “stamina
and resilience” from victims. [ 136] Such accommodations are viewed as interfering with employers’ prerogative to make personnel
decisions.[ 137] Thus, relief from bullying is often rejected as a reasonable accommodation, despite recognition that bullying is a
“pervasive phenomenon that causes and perpetuates economic and social harm as well as emotional injury.”[ 138]

Consequently, employers have not been required to provide “a workplace environment of civility” as an accommodation.[ 139] Thus,
even if bullying leads to or aggravates a disability, targets have been unable to obtain accommodations to avoid the bullying behavior,
even if the court recognizes that the bullying behavior violated an employer’s policies or was intolerable.[ 140]

This review of judicial responses to bullying indicates that the targets of bullying are relatively unlikely to be satisfied with the results
available to them through litigation. Often, only the most egregious cases are accepted for consideration. Further, the limited
availability of either money damages or accommodations from the judicial process, and the general absence of injunctive relief that
would prevent future bullying, emphasize the need for alternative avenues for resolution of workplace bullying claims. Arbitration
provides an alternative avenue to address bullying-either under a CBA or employer policies-by reviewing the consequences for
bullies, rather than focusing on damages for the targets. Arbitration is widely available as a formal dispute resolution procedure, and
thus it is important to evaluate how arbitration decisions compare to judicial responses to workplace bullying.

III. Arbitrators’ Review of Bullies’ Behavior
This review of arbitration awards concerning grievances filed by employees accused of bullying sheds new light on arbitrators’ role in
addressing workplace bullying. CBAs and employer policies often prohibit behaviors associated with bullying, such as violent
behavior. Employers rely on these policies in administering discipline, but it is an arbitrator’s review of these employer decisions that
often determines whether the bully remains in the workplace. Therefore, it is important to understand the circumstances that lead to
the reinstatement of a bully, even those whom an employer has decided to discharge. These decisions on the consequences for
bullying are significant for the target of bullying, who must face the bully who is returned to work by a sympathetic arbitrator. More

broadly, arbitrators’ reversals of these consequences may be allowing or even encouraging future bullying behavior by the bully who
is returned to work or by other potential bullies in that workplace.

Rather than pursuing a claim through the courts, targets of bullying may instead use their employers’ policies or, if unionized, the
CBA, to remedy the situation. Unfortunately, the publicly available repository of arbitration cases includes relatively few cases based
on the claims of targets of bullying. This is perhaps reflective of the limited number of CBAs that contain grievable language about
bullying. However, virtually all CBAs explicitly recognize that discipline imposed on an employee is subject to the grievance
procedure. As a result, there are a substantial number of publicly available arbitration cases based on the claims of accused bullies
who argue that they were disciplined without just case.[ 141] These cases provide an opportunity to assess the arbitrator’s role in
determining the consequences imposed on bullies, including their removal from the workplace. Arbitrators often hear claims of
employees who were disciplined for bullying behavior, identified here as grievants, under a just-cause standard adopted as part of a
CBA,[ 142] or through employment arbitration incorporated into an employer’s policies and procedures.[ 143] In these cases, the
arbitrator is reviewing the appropriateness of the discipline imposed by the employer under the applicable just-cause language in the
relevant CBA and incorporated work rules, or a policy adopted unilaterally by an employer in a nonunionized workplace.

A. Arbitration as a Dispute Resolution Process
The system of labor arbitration began as a way to resolve workplace disputes between union and management in a less disruptive
manner.[ 144] Prior to the adoption of arbitration, grievances were often settled by work stoppages.[ 145] Today, arbitration provides
a third-party, quasi-judicial approach to settling workplace disputes.[ 146] Arbitration has been promoted as a way to give targets
multiple ways to address workplace bullying and for employers to avoid the costs arising from workplace bullying.[ 147] Relying on
an employer’s anti-bullying policies that may prohibit otherwise legal behavior, arbitration may be “superior to courts at elaborating
and implementing those norms,” particularly to address bullying that may not be addressed through litigation.[ 148] But, despite its
potential to uphold an employer’s decision to discipline a bully, questions remain about the appropriateness of relying on arbitration as
a tool to address workplace bullying, including whether “arbitrators can meaningfully redress claims based on fairness norms that are
not presently embodied in law.”[ 149]

Arbitration decisions are only reviewable in the courts under extremely limited circumstances. However, one such occasion led one
court to express the common concern that arbitrators’ reinstatement of harassers could “embolden” future employees to “engage in
pernicious misconduct,” which could also include bullying.[ 150] In addition, arbitrators’ reinstatement of bullies could discourage
targets of bullying from reporting that behavior, “knowing that their employer will do little to protect them from even well-documented
and pervasive misconduct.”[ 151] This fear could be justified if arbitrators tend to reduce the punishment of bullies to something less
than discharge, or find no just cause for any discipline, thereby undermining the employer’s ability to discipline bullies and deter future

Before comparing arbitration decisions about bullying to litigation outcomes, it is useful to consider how outcomes in discrimination
claims vary between arbitration awards and in discrimination litigation. Arbitration has been criticized more generally based on
findings that employees “both win less often and win less money when disputing claims in arbitration rather than in litigation.”[ 152]
One 2016 study of arbitration awards in California, for example, showed a win rate for employees of eighteen to twenty percent,
depending on how a “win” is defined.[ 153] In contrast, a second 2019 study of awards by the same researchers computed employee
win rates across various arbitration system providers from twenty-two to fifty-nine percent.[ 154] Other experts have found that
employees do at least as well in employment arbitration compared to litigation.[ 155] For comparison, unions prevailed in thirty-six
percent of the labor arbitration awards addressing employment discrimination.[ 156]

Non-unionized employers may be adopting arbitration programs to “avoid inefficiencies created by disputes, increase morale, and
reduce turnover,” rather than just a desire to win.157 Some suggest that arbitration programs have become “front-line mechanisms
for enforcing important public norms such as anti-discrimination,”158 which indicates that arbitration could arguably help to reduce
workplace bullying as well. Arbitration may be beneficial for employers facing bullying claims like assault, because an arbitrator may
be better equipped than a jury to resolve the sometimes complex factual disputes in such a claim.159 Mandatory arbitration’s ability to
protect employers against exposure to large and unpredictable jury verdicts represents a significant advantage for them.160

Some argue that arbitration is particularly inappropriate for claims attempting to expand upon the rights available under existing law,
that present evidentiary challenges, may not involve significant monetary relief, or involve significant personal and emotional tolls,
especially if brought by an individual employee.161 Claims based on rights arising from an employee manual rather than individually
negotiated employment contracts may also be more difficult.162 Arbitrators may be less inclined than courts to issue “progressive
decisions” that favor employees to avoid the risk of being vacated by judicial review or to risk loss of future business.163 But it may
also be true that arbitrators do not feel as tightly bound by judicial precedent compared to a trial court, as demonstrated by the limited
number of arbitrators who reference applicable case law in the awards that we reviewed. In addition, our review demonstrates that
arbitrators often apply a justcause standard rather than legal precedent, which can lead to different results in grievances filed by
employees accused of bullying.

B. Just Cause Defined
Arbitration cases related to bullying typically involve the claim that the accused bully was disciplined without just cause. The “seven
tests of just cause” is a well-established and widely used set of a criteria used by arbitrators to determine if discipline imposed by
management was consistent with the CBA. The seven tests are derived from an often-cited 1966 arbitration award, Enterprise Wire.[
164] These seven questions help determine whether an employer lacked just cause in imposing discipline:

( 1) Did the employee have forewarning of the “possible or probabl[e] disciplinary consequences of the employee’s conduct?”

( 2) Was the violated rule or order reasonably related to the employer’s “orderly, efficient, and safe operation” and expected employee

( 3) Did the employer “make an effort to discover whether the employee did in fact violate or disobey a rule or order?”

( 4) Was the employer’s investigation fair and objective?

( 5) Did the employer’s decision-maker rely on “substantial evidence or proof?”

( 6) Did the employer apply its rule and impose the penalty “evenhandedly and without discrimination to all employees?” and

( 7) Was the level of discipline for the grievant “reasonably related” to the seriousness of the offense and the “record of the employee
in his service with the company?”[ 165]

If any of these tests are not met, the discipline may be reduced or overturned by the arbitrator.

The application of just-cause principles may result in the reinstatement of alleged bullies, just as an employer may choose to retain
them despite potential liability under tort laws. Under a just-cause analysis, arbitrators focus on whether the employee engaged in
conduct supporting the discipline and whether the punishment imposed by the employer is appropriate under the employer’s policy or
CBA and work rules. The present analysis of how just-cause principles are applied to bullies challenging their discipline helps to
answer the question of whether bullying in the workplace can and should be addressed through labor or employment arbitration.

C. Analysis of Arbitration Awards
A total of 135 arbitration awards were reviewed to understand how arbitrators approach grievances filed by employees who engaged
in bullying-type behaviors in the workplace, as well as the limited number of grievances filed by targets of bullying. Awards were
included if the grievant was accused of, or was the victim of, violence or threats made against or by supervisors or coworkers, and
other discourteous behavior, such as the use of profanity in the workplace. Awards were not included if the grievant’s misconduct
targeted clients or customers because of our focus on how well arbitrators address workplace bullying of employees. Employers
included both private- and public-sector organizations. These awards were reported in Bloomberg-BNA between 2009 and 2018, so
this study excludes unreported awards. No arbitration awards arising from individual employee-employer arbitration agreements were
reported, but the analysis should be applicable to such agreements that include a just-cause provision.

Of the 135 arbitration awards analyzed, 128 resulted from grievances filed by employees accused of bullying-related behavior; only
seven were filed by targets of such behavior. This analysis focuses on the 114 grievances filed by alleged bullies who were
discharged, eightyone of whom were accused of committing violence or threats of violence, and thirty-three awards concerning other
bullying-type behavior by the grievant, such as the use of profanity or some other inappropriate behavior.

Table 1 (found in the Appendix) provides the outcomes of grievances challenging the discipline or discharge of grievances by the
category of grievants’ behavior, as outlined above. Overall, forty percent of the grievances of bullies were sustained, and the
remaining sixty percent of the punishments (most often discharges) were upheld by the arbitrator. Those accused of violence or
threats were somewhat less likely to have their grievances sustained (thirty-eight percent), while the grievances by employees
accused of profanity or some other type of discourtesy, without any violence or threats, were somewhat more likely (forty-eight
percent) to have their grievances sustained. Among the forty-six sustained grievances, the arbitrator removed any punishment and
awarded full back pay with reinstatement for twenty-two percent of the grievants accused of bullying-related behavior, with full relief
slightly more common for those accused of violence or threats. An arbitrator rarely reduced a discharge to a warning, although this
result was provided equally regardless of the type of bullying behavior. Among the twenty-eight (of forty-six or sixty-one percent) of
grievants who were reinstated with some punishment imposed by the arbitrator, both term suspensions and reinstatement with no
back pay were slightly more common among those who engaged in profanity or some other type of discourteous behavior. Imposition
of a specific term of suspension was more common for both types of bullies, compared to reinstatement with no back pay.
Interestingly, only one grievant who engaged in violence or threats was transferred as a condition of reinstatement.

Because arbitrators are charged with interpreting a policy or CBA, almost all awards identify an employer-initiated work rule or a rule
in a contract clause (referenced collectively as “rules” here) that had been violated by the grievant. Of the 114 awards reviewed, sixty-
seven (fifty-nine percent) referenced a rule against threats or violence, and forty-four (thirty-eight percent) referenced some other
work rule related to bullying, such as the use of profanity or a discourtesy to coworkers, while only one specifically referenced a no-
bullying rule. Some awards referenced more than one type of rule, while only four awards did not specify a work rule that was
violated. To better understand these outcomes, we engaged in an analysis of arbitrators’ reasoning under just-cause principles. In
addition, we discuss whether the arbitrator’s review of a bully’s discipline adequately takes the interests of the target into

1. Application of Just-Cause Principles
This review of arbitration awards concerning grievants accused of bullying reflects variations in the influence of the seven tests for just
cause. The first and second tests concerning the employee’s forewarning or foreknowledge of the disciplinary consequences of his
conduct and the relationship between the employer’s rule and the operation of the business and employee performance were often
considered. Regarding the third, fourth, and fifth tests, while a lack of evidence that the grievant engaged in the alleged conduct often
led to the grievance being sustained, the conduct of the investigation itself was rarely influential. Under the sixth test, the arbitrator
sometimes considered whether the employer applied its policies against bullying evenhandedly and without discrimination. Perhaps
most influential was the seventh test, concerning mitigating and aggravating circumstances, showing whether the degree of discipline
administered was appropriate.

In applying the first test of just cause, the provision of forewarning to the employee, arbitrators in these grievances by accused bullies
often noted whether the work rule or contract provision related to bullying behavior provided notice to employees that such behavior
could result in discharge. This “notice” is an important component of just cause under general arbitration principles and was
mentioned in a majority of the awards. This approach was upheld by a federal court reviewing an arbitrator’s award that reinstated a
hospital technician who had been discharged for workplace violence, in which the court accepted the arbitrator’s reasoning that,
despite the hospital’s zero-tolerance policy, the applicable CBA did not state that a violation would result in discharge. [ 166] The
court explained that “[t]he arbitrator arguably grounded his opinion in the terms of the contract . . ., which require just cause for firing
and allow for progressive discipline and mandate that any discipline be applied in a considered, not arbitrary, fashion.”[ 167]

Notice was often discussed as partial justification for upholding discharge as the discipline for bullying behavior. Of the eighty-one
grievants charged with threats or violence, forty-three (fifty-three percent) of the awards noted that the contract provision or work rule
provided notice that discharge was a possible discipline for such behavior, while thirty-seven did not discuss whether the rule
provided such notice. Of the thirty-three grievants charged with other bullying related behavior, fifteen (forty-six percent) of the awards

noted that employees were notified that discharge was a potential punishment for such behavior. Thus, the notice provision of the first
test of just cause played an important role in arbitrators’ decisions.

A related aspect of the first test is whether the behavior of which the grievant is accused fits the definition of the problematic behavior
provided in the notice. Surprisingly, most arbitrators gave little attention to defining what behavior constitutes a threat or other
bullying-related behavior as defined by the CBA, given the ambiguity surrounding what behavior constitutes bullying. Arbitrators often
failed to discuss whether the employer’s policies provided a sufficiently clear definition of prohibited conduct. Only 9 out of 114 (eight
percent) of the awards included such a discussion. In one award, however, the arbitrator applied some objective criteria to determine
whether or not the grievant’s statements could be “reasonably considered to be threatening, harassing, intimidating or violent” as
prohibited in the parties’ contract.[ 168] The arbitrator, relying on a federal appellate case,[ 169] considered five evidentiary factors to
determine whether the grievant’s words should be considered a threat.[ 170]

The second test of just cause requires some relationship between the rule allegedly violated by a grievant and the employer’s
interests, as discussed above. In the awards reviewed, arbitrators discussed the reasonableness of those work rules in 58 out of 114
(fifty-one percent) of the awards concerning grievants charged with bullying-related behavior. In charges of violence or threats,
arbitrators found the rule to be reasonable in all but 4 of those awards. For example, one arbitrator noted the reasonableness of a
work rule proscribing “fighting, inciting fighting, threats and abusive language,”[ 171] and a second award upheld a discipline based in
part on the reasonableness of a city’s progressive discipline policy that prohibited “abusive or offensive language or gestures toward
subordinates, [or] other employees.”[ 172] Similarly, an arbitrator justified the discharge of an employee who engaged in verbal
threats in part because

[a] zero tolerance policy of workplace violence is a work rule that is reasonably related to the orderly, efficient and safe operation of
the Company’s business. The Company has a duty to provide a safe workplace for its employees and cannot tolerate threats of harm
and physical altercations between its employees.[ 173]

Rules were sometimes found to be reasonable even if the rule did not clearly define the violence or threats that were prohibited, such
as a work rule simply prohibiting “threatening, bullying, or intimidating or intentional” comments.[ 174] Thus, the second test of just
cause also played an important role, with arbitrators generally finding the employers’ rules related to bullying and violence to be

The third, fourth, and fifth tests of just cause related to the quality of the employer’s investigation. Of these, it is the fifth test regarding
the evidence that was commonly cited in reviewed awards. Arbitrators often considered the sufficiency of the evidence showing that
the alleged bully engaged in the behavior at issue. Compared to IIED claims discussed above, a bully’s discipline under an employer
policy or CBA may be upheld if he engaged in prohibited behavior, regardless of his intent. As a method of dispute resolution,
arbitrators often engaged in an analysis of the evidence of the alleged bullying behavior, demonstrating the fact-intensive “he said,
she said” nature of many of these claims.[ 175] In addition, claims of bullying by a supervisor are often misinterpreted as performance
issues.[ 176] Many arbitrators weigh the credibility of the grievant compared to the other witnesses who provide information about the
bullying-related behavior that led to the discipline or discharge in question.[ 177] It has been suggested that the relaxed evidentiary
rules common to arbitration hearings result in the admission of information that could benefit grievants alleging discrimination, but
no specific claim has been made regarding its benefit to alleged bullies.[ 178]

In this review of awards concerning alleged bullies, the arbitrator weighed and found the evidence sufficient in forty-five of eighty-one
(fifty-six percent) of the awards concerning grievants charged with violence or threats, compared to eleven (fourteen percent) of the
awards where the evidence was insufficient, and twenty-five (thirty-one per cent) awards which did not discuss the sufficiency of the
evidence. Of the thirty-three grievants charged with use of profanity or some other discourtesy, the arbitrator found the evidence to be
sufficient in seventeen (fifty-two percent) of the awards, and insufficient in just four (twelve percent ) of the awards, and did not
discuss the weight of the evidence in the other thirty-four percent of the awards. The vital role of the arbitrator in interpreting the facts
is illustrated in an award in which the grievant’s annoying and insensitive comments were found to not be prohibited by an employer
policy or work rule against “threatening, bullying or intimidating” behavior, but a later statement about a coworker intentionally hurting
himself did violate the rule.[ 179]

Not surprisingly, for all of the types of misconduct, if the evidence was insufficient to establish that the bullying behavior occurred or
that it violated a policy, then the grievance typically was sustained. In contrast, objective evidence that the bullying occurred often
sufficed to uphold the harasser’s discipline. For example, testimony of the grievant and another witness provided clear and convincing
evidence to uphold lesser discipline of an employee who was discharged for fighting because he poked and pushed a coworker
during an altercation.[ 180]

Arbitrators also often make factual inferences from the evidence presented. For example, a statement by the grievant about shooting
people to get management’s attention was sufficient to establish a “clear and unmistakable threat” made by the grievant. [ 181] One
arbitrator went so far as to consider “the frequent news reports about violence in the workplace” in determining whether the bullying
employee’s words reasonably tended “to threaten or intimidate another employee.”[ 182]

Like sufficiency of the evidence, the sixth test of just cause calling for consistent enforcement of a work rule or CBA provision is an
important principle in applying a just-cause standard.[ 183] Disparate enforcement of an employer’s policies is a “matter of
fundamental fairness,” according to one arbitrator.[ 184] Therefore, it is not surprisingly that twenty-eight percent of the awards
concerning bullying considered past enforcement of a rule against bullying-related behavior. If the rule had not been enforced
consistently against another employee, as in twenty-four of the awards (twenty-one percent), the arbitrator sometimes sustained the
grievance, as in twelve out of twenty-four (fifty percent) of these awards.

An employer’s consistent enforcement of rules and assessment of discipline for employees who engage in similar misconduct
supports findings of just cause, “unless a reasonable basis exists for variations in the assessment of punishment (such as different
degrees of fault, or mitigating or aggravating circumstances affecting some but not all of the employees).”[ 185] Arbitrators of
grievances by accused bullies followed a similar approach. For example, one arbitrator reduced a threeday suspension to a written
warning for a faculty member, where the dean involved in the exchange of emails with the grievant also used profane language but
only received a written warning.[ 186] Similarly, the grievance of a grievant was sustained, and her discharge was reduced to a five-
day suspension, where the other employee involved in the altercation was given a five-day suspension.[ 187]

This influence of consistent imposition of discipline can make it difficult for an employer to justify disciplining an employee who has
engaged in bullying-related behavior that has been tolerated in the past. For example, discipline was deemed too harsh a punishment
for a grievant who had used inappropriate language, where seven other employees had not been discharged for similar conduct in
the past.[ 188] However, some arbitrators have recognized that an employer has the authority to prospectively enforce a rule that has
not been fully enforced in the past, such as the award that upheld the discharge of an employee for making physical contact with a
coworker, despite the employer’s alleged failure to enforce the rule against fighting in the past.[ 189]

If the past incidents are not considered comparable by the arbitrator, then the employer is still free to interpret a work rule in line with
other just-cause principles.[ 190] Arbitrators have compared the conduct of the grievant to the other employee who engaged in
somewhat similar behavior and would deny the grievance if the grievant’s conduct was determined to be more serious or injurious.
For example, the discharge of a grievant was upheld based on use of offensive language toward subordinates, even though past
usage of similar language by a subordinate toward a supervisor did not result in discharge, based on “enough differences in the
circumstances.”[ 191] In ten of the awards, the arbitrator found that other employees had been treated similarly in the past, also
supporting the dismissal of six of those grievances.

Like consistent enforcement of a work rule, progressive discipline principles are often incorporated in a CBA and enforced by
arbitrators.[ 192] Progressive discipline requires both substantive and procedural due process, and the punishment “should fit the
crime.”[ 193] Under a policy of progressive discipline, an employer might lack just cause to discharge an employee who has engaged
in bullying-related behavior for the first time. For example, a university was required to meet with a faculty member who was
suspended in part based on workplace violence to determine the appropriate length of suspension under the principles of
progressive discipline.[ 194] Progressive discipline policies can also support the employer’s imposition of discipline, as in an
arbitrator’s decision to uphold the discharge of an employee who committed additional bullying behavior after the imposition of a last-
chance agreement for similar behavior.[ 195]

Despite notions of progressive discipline, arbitrators in some of the awards reviewed upheld a discharge for first-time behavior if the
severity of the grievant’s behavior justified discharge. Among the thirtyeight (thirty-three percent of 114) awards in which progressive
discipline principles were discussed, the arbitrator found that progressive discipline was followed in thirty (seventy-nine percent) of
those awards. In the eight awards where the arbitrator found that progressive discipline was not followed, the discharge was still
upheld in five out of eight of those awards. For example, the discharge of a grievant was upheld based on a first offense, where the
arbitrator noted that it was not unusual to discharge an employee at that workplace for a first offense of harassment.[ 196]

These decisions demonstrate that, while traditional factors of just cause, such as the sufficiency of the evidence, can sometimes
influence an arbitrator’s decision to reinstate, other factors such as adherence to progressive discipline principles and prior consistent
enforcement can support the discipline which was imposed. Thus, an employer seeking arbitral approval of discipline imposed on a
bully will need to ensure not only that sufficient evidence supports the accusation of bullying, but that progressive discipline has been
followed, if appropriate, and that any rules against bullying behavior have been enforced consistently in the past. In addition,
outcomes are often influenced by the seventh test of just cause, regarding mitigating and aggravating circumstances, discussed more
fully in the next section.

2. Impact of Mitigating & Aggravating Circumstances
Under the seventh test of just cause, arbitrators determine the appropriateness of the punishment imposed on bullies. This
consideration of both mitigating and aggravating circumstances[ 197] is an important determinant in addressing workplace bullying
because these factors often affect the employer’s determination regarding a proven bully’s removal from the workplace.
Characteristics of the grievant that can either be mitigating or aggravating include job tenure, past performance or discipline, behavior
of others that may have instigating the grievant’s misconduct, and a grievant’s disability. Overall, arbitrators considered mitigating or
aggravating circumstances in fifty-six out of 114 (forty-nine percent) of the awards addressing bullying-related behavior by the

Some arbitrators considered a mitigating or aggravating factor that applied to a particular grievant, combined with the other just-cause
principles discussed above. For example, the discharge of an employee who lightly pushed a coworker who was also engaged in
“escalating” behavior was reduced to a three-day suspension based on the absence of any prior discipline, combined with the lack of
notice of disciplinary consequences for violence in the workplace and the relative lack of severity of the behavior.[ 198]

Table 2 (see Appendix) outlines the consideration of mitigating or aggravating circumstances in addressing the appropriateness of the
discipline for different types of bullying-related behavior by a grievant. Job tenure of the grievant was the most common reason to
reduce or remove the grievant’s discipline. Of the thirty-four cases in which tenure was considered, the grievance was sustained in
twenty cases (fifty-nine percent). In an extreme example, an arbitrator reversed the discharge of a bullying employee with forty-six
years of service without previous incidents of violence.[ 199] Similarly, an employee of twenty-eight years was returned to work after
more than a year, without back pay, after throwing juice in the face of a coworker during a verbal dispute, with the arbitrator
commenting that her “almost thirty ( 30) years of work earns consideration.”[ 200] A long job tenure does not necessarily protect a
bully’s employment, however. For example, one arbitrator refused to reduce the discharge of an employee under a work rule
prohibiting use of abusive language, threat of bodily harm, and intimidation of a coworker based on his clean lengthy job tenure,
because to do so would be a clear example of an arbitrator “brandishing his chosen form of punishment for that of management.”[
201] In contrast, short job tenure can be considered an aggravating factor.[ 202]

Like seniority, the grievant’s work performance was influential in a significant number of awards, more often acting as a mitigating
factor rather than an aggravating factor. In the fifteen cases in which the arbitrator cited good job performance, the grievance was
sustained eight times, or fifty-three percent of the time. Threatening behavior of a teacher, for example, was insufficient to support his
discipline, in part because he had positive performance evaluations and was “accomplished in many fields of study and an
enthusiastic teacher.”[ 203] Similarly, an employee’s discharge for making a threatening remark was overturned based in part on his
“work record of professionalism, kindness, happiness, helpfulness and dedication.”[ 204] In another example, a grievant’s hard work
and dependability combined with the absence of any prior allegations of physical aggressiveness were mitigating factors for a
grievant who pushed a coworker despite his unofficial reputation as being difficult to work with.[ 205]

Like seniority, performance will not always protect a bully’s employment. For example, a positive performance record of ten years of
great work and attendance was insufficient to reduce the penalty for a grievant who violated an employer’s workplace-violence
policy, where the arbitrator noted that “it is not the arbitrator’s role to substitute his judgment for that of management.”[ 206] Past
performance issues can support the employer’s decision to discipline a grievant, but an arbitrator may still reduce a discharge to
lesser discipline. For example, erratic behavior associated with a teacher’s alcohol consumption was referenced in connection with
the imposition of a long-term suspension (reduced from discharge) based on his prior inappropriate behavior, also while drinking.[

The grievant’s past misconduct, or lack thereof, was also considered in about half of awards. Where the grievant had no history of
prior discipline, the grievance was sustained in seven out of ten cases (seventy percent). But when previous discipline was
considered, the grievance was sustained in only six of eighteen (thirty-three percent) of cases. If a grievant has engaged in a
“detrimental behavioral pattern,” for example, the arbitrator is more likely to uphold discharge as a discipline, such as the dismissal of
a grievance filed by an employee who had been discharged for inappropriate language after two prior incidents of similar behavior.[
208] Note that some CBAs may prevent an arbitrator from considering previous misbehavior prior to a certain time in determining
whether the employer had just cause.[ 209] In contrast, a grievant was reinstated after an alleged physical and verbal confrontation,
despite her alleged history of routinely engaging in both verbal and physical aggressive, abusive, and confrontational behavior over
her fifteen-year tenure, in large part because she had no prior documented discipline for such behavior.[ 210]

It is interesting to note that a grievant’s past misbehavior or even discipline, often for similar behavior, was considered in many of the
awards that considered the circumstances surrounding the bullying behavior by the grievant. This aligns with the observation that, in
harassment claims, arbitrators may be reluctant to uphold discharge as the discipline for a first offense, even under a “zero tolerance”
policy.[ 211]

By focusing so much attention on the mitigating circumstances presented by the bully, however, arbitrators may be doing little to
prevent future bullying-related behavior by that same worker. While some mitigating factors may be good predictors of future
behavior, such as past, related misconduct, the seniority and work performance factors may not be an accurate predictor of whether
the grievant will engage in similar misbehavior in the future. At the same time, an arbitrator’s consideration of aggravating factors
related to the bullying behavior at issue may be a good predictor of future predilection to bully.

3. Interests of Targets
Arbitration of grievances of bullies may not give sufficient voice to the target of the bullying during the arbitration process. As one
expert observed, any ADR process used to address bullying “should include significant emphasis on the effects of the
bullying/mobbing on the victim/target by both the organization and the perpetrators.”[ 212] While targets may be witnesses in
arbitration hearings, they typically have no input into the settlement or request for relief in the grievance/arbitration process. A union
may have a voice in the process if arbitration occurs under the CBA, but the union likely represents the accused bully rather than the
target in that process. The union’s duty of fair representation to the accused bully can influence its consideration of the target’s
interests in the outcome of the arbitration, even if the target is also a union member, if she has not filed a grievance. While the
employer may be seeking to avoid potential liability by disciplining the alleged bully, this interest does not necessarily equate to
choosing the outcome that is best for the targeted employee. Therefore, it is important to consider whether an arbitrator takes the
target’s interests into account when resolving the grievance of an alleged bully.

This review finds that arbitrators only give limited attention to the interests and concerns of the bullying target in applying just-cause
principles to those situations. In forty-six of the 114 (forty percent) awards where the alleged bully was discharged, the arbitrator
sustained the grievance and ordered the return of the grievant to work, albeit often after a suspension of some length. In only sixteen
of all the awards reviewed, however, did the arbitrator discuss the interests of the target of the bullying behavior. And in only five of
those sixteen awards was the grievance denied (e.g., where the grievant’s question about whether he needed to “start shooting
people” instilled fear in his coworker,[ 213] and where the grievant’s comments about coworkers’ national origin made them feel
“uncomfortable”).[ 214] In upholding the discharge of one bullying employee, the arbitrator pointed out that the grievant’s threatening
comments “clearly affected [the coworker] in a negative manner” and that the discharge was part of “an effort to promote a more
harmonious workplace.”[ 215] Similarly, another arbitrator discussed how threats can be a “distraction” that makes the target a “less
efficient worker.”[ 216]

Other arbitrators treated the victim’s interests as a type of mitigating factor, as in the award reducing the discharge of a grievant
charged with making threats to a five-day suspension where the victim “did not feel threatened.”[ 217] Similarly, another arbitrator
reduced a discharge of a grievant whose comments were “annoying and perhaps insensitive,” where the targeted coworker only felt
“irritate[d].”[ 218] Thus, in eighteen awards, the arbitrator considered the interests of the victim or target but still ordered the employer
to return the grievant to work.

4. Grievances of Targets
This review of arbitration awards revealed only seven cases out of the total of 135 awards that were initiated by the targets of
bullying. Several of them were accused of bullying behavior as well, potentially making them both a target and a perpetrator. The
shortage of reported arbitration awards may indicate an unwillingness of bullying targets to file grievances to address bullying. It may
also stem from the fact that many employers have no policy about bullying, or have a policy that is not subject to the grievance
procedure. However, virtually all CBAs allow for the use of the grievance procedure to challenge the imposition of discipline or
discharge, meaning that those who are disciplined for bullying have a near-automatic right to file a grievance. Another potential
reason for the small number of cases could be that those arbitration awards may be unreported in a public forum.

Of the seven awards in which the grievant alleged that she was the target of bullying, four alleged that the grievant was the target of
threats, while three alleged the use of profanity or other discourteous words towards the grievant. In five of the seven awards, the
grievant who alleged that she was a target of bullying had been discharged and alleged that she had been bullied as part of her
defense. Of those five awards, three of those grievant/targets were reinstated with some punishment less than discharge. For
example, one targeted grievant was reinstated but was still given a “final written warning” for using “gross profanity” with a coworker
during a confrontation in which the coworker also used profanity and engaged in “somewhat threatening behavior,” where the grievant
was on the last step of progressive discipline, whereas the coworker had no previous discipline record and had only been given a
written warning.[ 219]

The grievances of the remaining two targeted grievants were dismissed, upholding their discharges. For example, the discharge of
one grievant was upheld even though he alleged that his threats of gun violence towards coworkers were in response to the racial
harassment of him, despite the arbitrator’s recognition that the employer failed to investigate the allegation of harassment, because
the employer conducted a “fair and thorough investigation” into the grievant’s threats.[ 220]

In the remaining two awards, where the target was not discharged, the grievance was dismissed. One arbitrator failed to accept
grievant’s allegation that she was constructively discharged, despite evidence of threats she had received.[ 221] The second
arbitrator hearing a claim of a targeted grievant who was not discharged found evidence to support the grievant’s claim that her
supervisor engaged in “hostile and abusive behavior” that was threatening to her and others, beyond behavior that could be attributed
to “management style.”[ 222] Even so, the arbitrator dismissed the grievance alleging a violation of the agency’s “Violence in the
Workplace” policy because the agency reacted to the threats by counseling the abusive supervisor, implementing a performance
appraisal process, and requiring his attendance at two managerial skill programs, which modified his behavior.[ 223] The arbitrator
concluded that “the remedial actions taken by the Agency have resolved the problem, and nothing further is warranted.”[ 224] This
award, although only one example, demonstrates the potential limitations on relying on arbitrators to adjudicate the claims of alleged
victims of bullying behavior, particularly when the bully is a supervisor.

While arbitrators may not be well-equipped or empowered to hear grievances of the targets of bullying, the principles of just cause
can lead to appropriate results that will reduce bullying in the workplace. If an employer’s policy notifies its employees that bullying
behavior will not be tolerated, and that rule is related to the employer’s interests and is enforced consistently, then arbitrators will rely
on that policy to uphold the discipline imposed on a bully by the employer. An arbitrator applying his or her fact-finding skills can
make a fair determination as to whether the grievant’s conduct violated those policies. Lastly, an arbitrator’s consideration of
mitigating and aggravating circumstances may accurately predict future behavior of a proven bully, at least where those
circumstances are related to that behavior.

Overall, the application of just-cause analysis to grievances filed by harassers and bullies provides some insight into how such
behavior can be addressed in the workplace. These arbitration awards focus more on the provision of general notice to employees,

with most failing to devote any significant attention to a clear definition of prohibited bullying-related behavior. Instead, arbitrators
spend significant time determining whether the grievant actually engaged in the alleged behavior, based on credibility determinations
and weighing of conflicting evidence. This highlights the need for employers to create policies that clearly identify acceptable and
unacceptable behaviors.

IV. Comparison of Arbitration and Litigation of Bullying Claims
Sections II and III above address how judges and arbitrators respond to claims of workplace bullying. Both of these approaches have
significant limitations. But we believe that, currently, arbitration is more likely to meet the needs of the targets of bullying. As
discussed above, successful litigation is hampered by the lack of national legislation prohibiting workplace bullying. Typically, claims
are filed alleging assault, battery, or IIED. Often, only the most extreme cases of bullying result in litigation. The target faces
significant hurdles in establishing intent to injure or cause harm or to prove that the behavior is extreme or outrageous. In addition, the
target incurs legal expenses. Even if they win, targets may not be satisfied with the outcome. Targets are often most interested in
bringing the bullying to an end and preventing it from occurring in the future. But litigation does not offer injunctive relief. Nor does it
typically hold the employer liable for the behavior, and so the employer has no obligation to prevent future occurrences. Finally,
litigation does not typically provide accommodation in the employment setting-such as reassigning a bullying supervisor or coworker
to a location away from the target. For all these reasons, we believe that litigation is currently an avenue that is unlikely to meet the
needs of the targets of bullying. If new legislations prohibiting workplace bullying were to be adopted, this could change.

In contrast, while arbitration also has limitations, it has a number of advantages as well. One of the major current limitations of
arbitration is that many employers do not have policies that effectively prohibit workplace bullying. Some employers have no policies
at all. Some have policies that do not clearly definite unacceptable behavior and so are difficult to enforce. Others have policies that
are aspirational and provide no enforcement mechanisms at all. Arbitrators are limited to enforcing contract provisions as they are
written and cannot amend policies based on their own judgment. Thus, while litigation is limited nationwide by a lack of anti-bullying
legislation, arbitration is limited on an employer-by-employer basis, depending on the effectiveness of the particular policy.

Just as litigation might find in favor of an accused bully, so too, arbitration might sustain the grievance of an accused bully. In both
cases, this outcome might embolden bullies to continue their objectionable behaviors. And, in both cases, it might discourage future
targets from filing claims. However, in the case of arbitration, the consistent application of the seven tests of just cause can guide an
employer who seeks to eliminate bullying, by helping to clarify rules and boundary conditions for using discipline as a tool. This may
or may not help an individual target of bullying, but it can help to prevent future occurrences of bullying in the workplace.

Arbitration has some advantages that litigation does not. One is cost. In labor arbitration, a grievant typically does not incur any legal
costs personally. The union provides an advocate for a disciplined employee, although the union’s role may be conflicted if the target
is also represented by the same union. Second, arbitration can deal with workplace issues, like bullying, that are not covered by law.
Third, some arbitrators, as discussed below, can provide a more creative solution to the issue. Fourth, in arbitration, the target does
not have to prove intent of the bully to harm. Instead, the decision is based on whether the evidence establishes that the behavior
occurred, regardless of intent. Fifth, unlike litigation, arbitration holds employers liable for the offending behavior in the workplace.
The employer has the power to stop current bullying and prevent it in the future, and the prospect of losing repeated arbitration cases
potentially can motivate the employer to take action and work to create a bully-free work environment.

Finally, for reasons discussed above, there are few published arbitration decisions based on the claims of a target. However, it must
be noted that all the cases discussed here-even the large number that were based on the accused bully challenging their discipline or
discharge- have at their foundation an underlying claim by a target. The target complained, and management investigated and then
disciplined the accused bully. The bully then grieved their discipline. In this sense, although these arbitration cases are not based on
the claim of the target, it is the target’s initial complaint that starts the dispute resolution process. In this indirect sense, arbitration
does address the complaints of the targets. And, while such information is not publicly available, it would be instructive to know what
percentage of discipline or discharge cases for bullying are accepted by the alleged bully and allowed to stand. Such acceptance may
occur because the union or the grievant believes that they are likely to lose the case in arbitration. The role of both the union and the
employer in this process could be clarified by clearer guidance in a CBA or employer policy regarding what constitutes bullying
behavior and what the appropriate discipline should be, including whether both the bully’s characteristics and the target’s interests
should be considered.

For all these reasons, we believe that the arbitration process is currently superior to litigation for the goal of reducing workplace
bullying. Both of these options would be significantly enhanced if legislation prohibiting workplace bullying were to be passed. That
would provide plaintiffs an effective avenue of recovery in the courts. Arbitration could be made more effective by consideration of the
following recommendations to support the prohibition of workplace bullying.

V. Recommendations and Conclusion
The persistence of bullying in the workplace calls for a new approach by both employers and the adjudicatory bodies which address
such behavior. Currently, the slight possibility of a successful tort claim against a bully or an employer that allows bullying to occur is
insufficient to reduce bullying in the workplace. A bullying-free workplace could be promoted by legislation to require anti-bullying
policies, or to make it easier for targets to brings claims. It may be possible for targets of bullying to bring claims against their
employers under an arbitration program designed to enforce anti-bullying policies or collective bargaining language. When a
substantial number of such claims by targets become publicly available, we recommend that future research analyze whether they
provide adequate relief for targets.

Our review of existing arbitration awards concerning the grievances of accused bullies provides insight into arbitrators’ effectiveness
in reviewing the discipline imposed on bullies by their employers. This review shows that arbitrators’ interpretation and enforcement of
employers’ policies against bullying behavior can provide an opportunity for consequences that will effectively address workplace
bullying. But these policies are only effective if they clearly prohibit bullying behavior and if they are enforced. Arbitrators who are
empowered to interpret and apply such policies should adhere to clear guidelines for appropriate behavior in those policies. In
addition, our review shows that arbitrators can adopt creative approaches to ensure that workplace bullying does not continue.

Accommodations for targets of bullying offer an effective approach to addressing bullying in the workplace. A minority of courts
require a broad range of accommodations for employees who develop a disability as the result of being targeted by bullying or
harassment. If arbitrators were to include similar solutions in addressing bullying, targets of bullying would enjoy more opportunities to
remain and be productive in their workplaces. We know that bullying behaviors are “concrete, widespread, systemic, destructive, and
avoidable,” which supports “political and judicial reform.”[ 225] Until that reform occurs, creative solutions through arbitration to
address bullying as violations of employer polices and CBAs may be the best alternative to make workplaces safe.

A. Creative Remedies to Address Bullying
The awards of some arbitrators addressing bullying-related behavior by grievants provide a broader approach to appropriate
remedies for such behavior. For example, to protect a target into the future, an arbitrator may order that bullying behavior stop, even if
committed by a supervisor rather than a member of a bargaining unit.[ 226] Conversely, by placing conditions on a grievant’s return to
work, the arbitrator could address the concerns of both the victim and the employer in situations where the bullying-related behavior
was insufficient under just-cause standards to support the grievant’s discharge. For example, arbitrators have conditioned the
reinstatement of a grievant on participation in the employer’s employee assistance program (EAP)[ 227] or a “substance use and
anger management evaluation” when deciding if a grievant is “fit to return to duty” after a suspension with no back pay.[ 228]
Similarly, another arbitrator ordered that a grievant who had posted “extremely offensive language and racial slurs” participate in an
anger management class at his own expense prior to his reinstatement after a suspension without back pay.[ 229]

Before being returned to work, proven bullies are sometimes required to provide medical documentation to support their
reinstatement by an arbitrator.[ 230] In particular, bullies with mental health issues that may have contributed to their bullying behavior
have been required to establish their readiness to return to work without bullying others. For example, the discharge of one grievant
with bipolar disorder who was accused of cursing at his supervisor could only be reversed if he stated his intention to regularly take
his medication and submitted assurances from his doctor that he is “able to return to work” and understands the importance of his
medication.[ 231] Similarly, arbitrators have reinstated bullying grievants, but allowed the employer to require periodic mental
examinations to assure the employer that the grievants are mentally and physically fit to resume working.[ 232]

Arbitrators also have dismissed the grievances of targets where the employer has executed reasonable responses to the bullying-
related behavior against a grievant. For example, an arbitrator dismissed the grievance of a target who was bullied by her supervisor,
where the employer placed the alleged bully on a 360-degree appraisal and evaluation program, required him to meet weekly with his

director, and attend both executive coaching sessions and conflict- resolution training, which proved to be effective.[ 233] The
arbitrator explained that, in response to the bullying behavior, the employer “acted quickly, aggressively and effectively in putting forth
a remedial action program that ultimately lead [sic] to his changed behavior.”[ 234] These approaches parallel the courts’ responses
to requests for accommodations by targets of bullying.

Rather than allowing employers to avoid accommodations for targets of bullying, courts should require the provision of a “normal”
workplace as an accommodation. The EEOC has advised that “[i]n some circumstances, supervisors may be able to adjust their
methods as a reasonable accommodation by, for example, communicating assignments, instructions, or training by the medium that
is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail).”[ 235] One group of experts
recommends, for example, that human resources professionals can avoid direct confrontation with a bullying supervisor by
recharacterizing their behavior as “inappropriate management” to open up a discussion about “‘more appropriate’ ways of behaving.”[
236] Follow-up counseling of the bully can also help to alleviate the behavior, at least in less serious instances.[ 237]

Accommodations for targets of bullying should be based on a goal of tolerating only the “normal” stresses of a workplace,[ 238] not a
workplace where bullying is expected and tolerated. Employers should allow the target of bullying by a supervisor or a coworker to
transfer away from a bully as an accommodation, unless the employer can demonstrate that her transfer would cause the employer
an undue hardship.[ 239] Such an approach would equate protection from more bullying to preventing exposure to toxic chemicals,
because both can cause or aggravate a disability.[ 240] If arbitrators were empowered and inspired to adopt these creative solutions
to workplace bullying, both targets and employers would benefit.

B. Preventative Policies
An arbitrator’s review of the disciplinary consequences for bullies directly relies on the employer’s policies prohibiting bullying
behavior. Policies adopted by employers or incorporated in CBAs should define bullying behavior clearly and ensure that bullies are
appropriately sanctioned.[ 241] As one expert stated, “[T]he most powerful form of shaping or extinguishing behavior is through the
establishment of clear expectations, modeling appropriate behavior and aligning recognition and reward with the standards set.”[ 242]
Bullying should be prohibited regardless of whether the target belongs to a group protected against discrimination. As one expert
pointed out, it “doesn’t make sense” to disregard bullying behavior that is not directed at a target because of her membership in a
protected class.[ 243] Employers have begun to adopt policies that prohibit bullying behavior along with discriminatory harassment.[
244] For example, Fulton County, Georgia, has adopted an anti-bullying policy based on the model Healthy Workplace Bill.[ 245]
Similarly, the Association of Corporate Counsel has recommended that employers “consider establishing a policy that prohibits
workplace bullying either by creating a new policy or by expanding the employer’s current harassment policy.”[ 246]

Some employers may be concerned that adoption of antibullying policies will create an exception to employment at will in favor of
alleged bullies.[ 247] However, if employers have a genuine interest in addressing bullying, adoption of clear and concrete workplace
policies will support their discipline of bullies, as shown by this review of arbitration awards enforcing such policies.

To be effective, organizational policies and procedures to address bullying should include a “detailed description of its specific
objectives outlining both the individual and the shared responsibilities of the employer and its employees.”[ 248] Policies should
include specific examples of both “acceptable and unacceptable” behaviors.[ 249] For instance, a manager’s “style” should not
include “placing employees in a state of fear of injury.”[ 250] Clear policies make it more difficult for employers to excuse a bully’s
behavior by saying they did not know it was unacceptable.[ 251] Employers’ policies also should define bullying precisely and “declare
its unacceptability,”[ 252] including specific levels of discipline for different levels of bullying behavior. Such clarity not only
discourages bullying, but also protect alleged bullies against unfair discipline.

Clearer policies also will avoid conflict with the National Labor Relations Act’s protection of concerted activity.[ 253] An employer’s
civility rule can constitute an unfair labor practice if it “explicitly restricts” communication among employees concerning terms and
conditions of employment.[ 254] Thus, employers should adopt policies that are not vague or overbroad.[ 255] Under a clear policy,
employers can continue to discipline bullies even if the bullying behavior might otherwise be categorized as concerted activity, at least
when the behavior includes insubordination, physical contact, or threats.[ 256] Clear policies also lead to more consistent application
and enforcement, which can help employers avoid discrimination claims by the bully.[ 257]

Effectiveness, including the encouragement of reporting, is promoted by a policy with a “detailed description of the procedures used
to file, investigate, and resolve a bullying complaint in a timely manner.”[ 258] Policies on corrective action for bullies should “ensure
that all organizational members understand the actions that should take place if bullying occurs.”[ 259] Punitive measures “send a
clear signal” to the bully and others in the organization about the unacceptability of bullying behavior.[ 260] Employer policies on
bullying should also outline a procedure for reporting by targets or observers.[ 261] Reporting targets and observers should be
assured of their job security through a concrete and enforceable “anti-retaliation provision and assurances of timely investigations,
due process, an appeals process, and confidentiality.”[ 262]

An employer policy to address bullying also should provide for implementation of corrective action where warranted.[ 263] As one
expert noted, “[P]olicies will not succeed in preventing workplace harassment and bullying if they are not properly enforced.”[ 264] In
the related area of preventing harassment, for example, human resources consulting firms advise employers to administer “discipline
that is prompt, consistent, and proportionate to the severity of the harassment,” and would even evaluate supervisors and managers
based on implementation of “metrics for harassment response and prevention.”[ 265] Similarly, the Society for Human Resource
Management (SHRM) has suggested that employers seeking to address harassment should take “appropriate action to remediate or
prevent the prohibited conduct from continuing.”[ 266]

Potential bullies “need to have a reason to fear real consequences.”[ 267] Thus, an employer’s policy should specify a “hierarchy of
bad behaviors,” with “proportionate corrective action based on how bad the conduct is,” and less severe discipline for conduct that
falls into a “grey area.”[ 268] In general, the intervention to address bullying should be tailored to the specific organization’s needs
and resources.[ 269] Policies to address bullying should outline penalties for those employees who violate these policies,[ 270]
providing notice to employees that any violation of the policy may result in discipline, up to and including discharge.[ 271] For
example, using the analysis of IIED claims as a guide, an isolated instance nonviolent bullying may not warrant discharge, whereas a
more pervasive or violent form of bullying might.

Not all employers adopt or enforce anti-bullying policies. Some experts have recognized the need for employers to consider the
appropriateness of their responses to harassment,[ 272] which suggests that a similar review of appropriate responses would help
prevent bullying behavior. Questions of enforcement of policy are left to the employer in an unorganized workplace, but the union
and the applicable CBA play a significant role in a unionized workplace.

C. Collective Bargaining
CBA provisions can be negotiated to protect employees against abusive supervision,[ 273] as well as protection against bullying by
coworkers or other third parties.[ 274] In a CBA, a union can negotiate for a fair process and secure advantage as a repeat player in
that process. [ 275] In fact, collective action to address bullying by both supervisors and others can be an important means of
workers’ collectivism.[ 276] While assuring the fairness of the process for both the accused and targets, collective bargaining presents
an opportunity to address and eradicate bullying behaviors in the workplace, based on employers’ and unions’ common interest in
providing a safe and productive place for employees to work.[ 277] Unionized, targeted employees may not always trust their union
to handle claims of workplace bullying, particularly if the bully is also a union member, but targets also have recognized that “[u]nions
are more necessary than ever to protect worker health and safety. Employers’ power must be checked.”[ 278] In fact, a Workplace
Bullying Institute survey found that employees believed that if unions lost the right to bargain for working conditions, more bullying
could be expected.[ 279]

Both parties to a CBA will benefit if policies against bullying are discussed during contract negotiations. Policies against bullying will
be more effective if employees have a voice in their creation.[ 280] Inclusion of anti-bullying provisions in a CBA not only protects
employees from unfair discipline, but also against mistreatment by both supervisors and coworkers.[ 281] Under most CBA’s, an
employee cannot file a grievance against another employee, but a typical policy would allow an employee to file a grievance against
management for allowing the bullying to continue-regardless of whether the bullying was committed by a supervisor or a coworker.
Such protections help address the power imbalance between workers and management.[ 282] In addition, a union’s negotiation of fair
arbitration processes can alleviate some of the concerns associated with employment arbitration outlined above. Along with unions,
worker organizations have begun to include addressing workplace harassment in their agendas,[ 283] which can and should be
expanded to address bullying as well.

Like the recommendations for employer policies outlined above, a CBA’s grievance process is only effective and fair if the CBA
specifies which bullying behaviors are prohibited.[ 284] Such protections can include protection against abusive supervision as well
as bullying by coworkers. For example, an agreement between two unions and the Commonwealth of Massachusetts protected
against abusive supervision but also requires employees to show “mutual respect” and states that bullying is “unacceptable and will
not be tolerated.”[ 285] Clarity regarding the prohibited conduct and the accompanying punishment, as well as consistent
enforcement of such a policy, supports more consistent and enforceable discipline in the future.[ 286] As one arbitrator explained, an
employer’s failure “to exercise adequate control results in behavior which it considers to be reprehensible only in degree but not in
kind, an employee may not be as severely disciplined as if the Employer diligently and uniformly” enforced the policy in question.[
287] Our review of awards also demonstrates that more specific language can benefit accused bullies whose conduct does not rise to
the level of the specific prohibited conduct.

Anti-bullying CBA provisions should, like an employer’s antibullying policy, “give a clear notice to its employees that the type of
conduct involved here has been found to be a violation . . . and subject to severe discipline.”[ 288] Even if a CBA provision is not
labeled “antibullying,” CBAs could include protections against bullying by supervisors in a section on workplace safety or just-cause
protection. Our review of arbitration awards demonstrates how parties have adopted various guidelines for workplace conduct
applicable to bargaining unit members through provisions against physical or verbal abuse. A CBA can also include protections for
the target of bullying, including the ability to avoid future bullying if the bully remains at work, heightened scrutiny of discipline against
a target who has reported bullying, and other protections against retaliation for filing a complaint.[ 289]

To support a culture that does not condone bullying behavior, parties to a CBA should agree upon the appropriate level of
punishment for various types of bullying behavior. For example, a physical assault likely would warrant a more severe punishment
than the use of discourteous language. The parties should also consider the other factors used by some courts hearing IIED claims,
such as the level of authority of the bully over the target and the continuity of the bullying, in categorizing punishment for different
bullying behaviors. The parties to a CBA should specifically negotiate if and when mitigating or aggravating circumstances will be
considered in determining the appropriate response to bullying behavior. For example, parties to a CBA can decide whether job
tenure or past performance should be part of a just-cause determination in setting the discipline to be imposed on a bully. If the
parties decide that mitigating or aggravating circumstances should be considered at least for some types of bullying behavior, those
situations and the circumstances should be clearly defined.[ 290] Such specificity regarding appropriate responses to bullying can
help alleviate the concern that arbitration will lead to inappropriate reinstatement of proven bullies, while still protecting the interests of
employees accused of bullying.

By considering creative and more explicit policies and CBA provisions to address bullying, employers and unions can help address
the persistence of such behaviors in the workplace. Some arbitrators have adopted creative remedies to assure that a bully who
returns to work will likely not continue bullying behavior. Employers and unions can adopt guidelines for arbitrators that require
consideration of such safeguards before returning a bully to work. In addition, allowing for accommodations can help to address the
concerns and interests of the target of such behavior. More broadly, employers or the parties to a collective bargaining agreement can
agree to more specific descriptions of prohibited behavior and appropriate levels of punishment to put employees on more specific
notice than provided by many “zero tolerance” policies. Empowering arbitrators to enforce these more specific prohibitions against
bullying will address the harm that results from bullying behavior, while still protecting workplace job security process rights.

1. See infra notes 173-74 and accompanying text for further explanation of just cause.

2. Gerald Sauer, Arbitration Is a Flawed Forum That Needs Repair, Law360 (Feb. 6, 2020, 4:01 PM),
[] (experts estimating that, by 2024, almost eighty-three percent of private, nonunionized employees in
United States will be subject to mandatory arbitration).

3. Tutorial 2-What It Is, WORKPLACE BULLYING INST. (2020),

4. Suzy Fox & Lamont E. Stallworth, Building a Framework for Two Internal Organizational Approaches to Resolving and Preventing
Workplace Bullying: Alternative Dispute Resolution and Training, 61 CONSULTING PSYCH. J.: PRAC. & RSCH. 220, 224 (2009).

5. Sarah E. Morris, Tackling Workplace Bullying in Tort: Emerging Extreme and Outrageous Conduct Test Averts Need for Statutory
Solution, 31 ABA J. LAB. & EMP. L. 257, 260 (2016).

6. James E Bartlett & Michelle E Bartlett, Workplace Bullying: An Integrative Literature Review, 13 ADVANCES IN DEVELOPING
HUM. RES. 69, 70 (2011).

7. E. Christine Reyes Loya, Low-Wage Workers and Bullying in the Workplace, 14 HASTINGS RACE & POVERTY L.J. 231, 233

8. Stacy A. Hickox & Michelle Kaminski, Measuring Arbitration’s Effectiveness in Addressing Workplace Harassment, 36 HOFSTRA
LAB. & EMP. L.J. 293, 294 (2019); Carrie G. Donald & John D. Ralston, Arbitral Views of Sexual Harassment: An Analysis of
Arbitration Cases, 1990-2000, 20 HOFSTRA LAB. & EMP. L.J. 229, 301 (2002); Robert Perkovich & Anita M. Rowe, “What Part of
‘Zero’ Don’t You Understand?”: The Arbitration of Sexual Harassment Discipline and “Zero Tolerance” Policies, 36 WILLAMETTE L.
REV. 749, 762-69 (2000).

9. EQUAL EMP. OPPORTUNITY COMM’N, EEOC-NVTA -2017-2, Promising Practices for Preventing Harassment (Nov. 21, 2017), []; Joanna L.
Grossman, The Culture of Compliance: The Final Triumph of Form over Substance in Sexual Harassment Law, 26 Harv. Women’s
L.J. 3, 3 (2003).

10. See, e.g., Johnson v. City Univ. of New York, 48 F. Supp. 3d 572, 576 (S.D.N.Y. 2014) (dismissing complaint where treatment not
alleged to be because of membership in any protected group).

11. Loya, supra note 7, at 241-42; David C. Yamada, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile
Work Environment Protection, 88 Geo. L.J. 475, 503 (1999); Jerry Carbo, Strengthening the Healthy Workplace Act-Lessons from
Title VII and IIED Litigation and Stories of Target Experiences, 14 J. WORKPLACE RTS. 97, 100 (2009).

12. Susan Harrington, Samantha Warren & Charlotte Rayner, Human Resource Management Practitioners’ Responses to Workplace
Bullying: Cycles of Symbolic Violence, 22 ORGANIZATION 368, 369 (2015).

13. GARY NAMIE, WORKPLACE BULLYING INST., 2017 U.S. WORKPLACE BULLYING SURVEY 1 (2017),; Loya, supra note 7, at 234.

14. NAMIE, supra note 13, at 12.

15. Id. at 13; see also GARY NAMIE & RUTH F. NAMIE, THE BULLY-FREE WORKPLACE 73 (2011) (stating that when bullying is
reported to employers, fifty-three percent of employers did nothing, and forty percent conducted a biased or inadequate investigation).

16. Loya, supra note 7, at 235; Morten Birkeland Nielsen & Ståle Einarsen, Outcomes of Exposure to Workplace Bullying: A Meta-
Analytic Review, 26 WORK & STRESS 309, 312-13 (2012).

17. Bartlett & Bartlett, supra note 6, at 77-78; GARY NAMIE, WORKPLACE BULLYING INST., THE WBI WEBSITE 2012 INSTANT
POLL D-IMPACT OF WORKPLACE BULLYING ON INDIVIDUALS’ HEALTH 1-2 (2012),; William Martin & Helen LaVan, Workplace Bullying: A Review of
Litigated Cases, 22 Emp. Resp. & Rts. J. 175, 179-80 (2010).

18. Gary Namie, The Challenge of Workplace Bullying, 34 EMP. RELS. TODAY 43, 46 (2007).

19. NAMIE, supra note 17, at 3.

20. Christine Porath & Christine Pearson, The Price of Incivility, HARV. BUS. REV., Jan.-Feb. 2013, at 114, 117 (2013); Charles
Chekwa & Eugene Thomas, Jr., Workplace Bullying: Is It a Matter of Growth? 8 J. DIVERSITY MGMT. 45, 47 (2013).

BNA 2017).

accessed Nov. 13, 2017).

23. See NAMIE, supra note 13, at 18.

24. Loya, supra note 7, at 236-40.

25. David C. Yamada, Emerging American Legal Responses to Workplace Bullying, 22 Temp. Pol. & Civ. Rts. L. Rev. 329, 341-42
(2013); Loraleigh Keashly & Karen Jagatic, North American Perspectives on Hostile Behaviors and Bullying at Work, in BULLYING &
Hoel, Dieter Zapf & Cary L. Cooper eds., 2d ed. 2011).

26. Gary Namie, Ruth Namie & Pamela Lutgen-Sandvik, Challenging Workplace Bullying in the United States: An Activist and Public
Communication Approach, in BULLYING & HARASSMENT IN THE WORKPLACE, supra note 25, at 447, 450.

27. Morris, supra note 5, at 261; Loya, supra note 7, at 236.

28. George L. Blum, Annotation, Liability for Workplace Bullying That Does Not Involve Class-Based Discrimination, 27 A.L.R.7TH
art. 3, §2 (2017).

29. Susan L. Nardone & James J. LaRocca, Bullying in the Workplace, N.J. Law., Dec. 2014, at 30, 31.

30. Bartlett & Bartlett, supra note 6, at 75; Michael G. Harvey, Joyce T. Heames, R. Glenn Richey & Nancy Leonard, Bullying: From
the Playground to the Boardroom, 12 J. LEADERSHIP & ORG. STUD. 1, 2-3 (2006); see also TERESA A. DANIEL & GARY S.
41 (2d ed. 2016) (noting that bullying causes losses of $300 billion in increased medical costs, workers’ compensation charges, lost
productivity absenteeism, and turnover).

31. Bartlett & Bartlett, supra note 6, at 76; Ellen Pinkos Cobb, Workplace Bullying Protections Differ Globally, SOC’Y FOR HUM.
RES. MGMT. (June 24, 2014),
globally.aspx [].

32. Keashly & Jagatic, supra note 25, at 59.

33. Mogens Agervold & Eva Gemzoe Mikkelsen, Relationships Between Bullying, Psychosocial Work Environment and Individual
Stress Reactions, 18 WORK & STRESS 336, 342-45 (2004); Helge Hoel & Cary L. Cooper, Working with Victims of Workplace

Bullying, in GOOD PRACTICE IN WORKING WITH VICTIMS OF VIOLENCE 101, 101 (Hazel Kemshall & Jacki Pritchard eds.,
2000); Michelle R. Tuckey, Sergio Chrisopoulos & Maureen F. Dollard, Job Demands, Resource Deficiencies, and Workplace
Harassment: Evidence for Micro-Level Effects, 19 INT’L J. STRESS MGMT. 292, 293-96 (2012).

34. Fox & Stallworth, supra note 4, at 232-37.

35. Gary Namie & Ruth Namie, U.S. Workplace Bullying: Some Basic Considerations and Consultation Interventions, 61
CONSULTING PSYCH. J.: PRAC. & RSCH. 202, 214 (2009).

36. Maureen Duffy, Preventing Workplace Mobbing and Bullying with Effective Organizational Consultation, Policies, and Legislation,
61 CONSULTING PSYCH. J.: PRAC. & RSCH. 242, 258 (2009).

37. Joyce Thompson Heames, Michael G. Harvey & Darren Treadway, Status Inconsistency: An Antecedent to Bullying Behavior in
Groups, 17 INT’L J. HUM. RES. MGMT. 348, 355-58 (2006).

38. Harvey, Heames, Richey & Leonard, supra note 30, at 6; Heames, Harvey & Treadway, supra note 37, at 358.

39. Denise Salin, Organisational Responses to Workplace Harassment: An Exploratory Study, 38 PERS. REV. 26, 30 (2009).

40. Harrington, Warren & Rayner, supra note 12, at 370.

41. NAMIE, supra note 13, at 14; see also NAMIE & NAMIE, supra note 15, at 73 (reporting that fifty-three percent of employers did
nothing, and forty percent conducted a biased or inadequate investigation).


43. Salin, supra note 39, at 39.

44. Keashly & Jagatic, supra note 25, at 60; Denise Salin & Helge Hoel, Organisational Causes of Workplace Bullying, in BULLYING
& HARASSMENT IN THE WORKPLACE, supra note 25, at 227, 230.

45. Harvey, Richey, Heames & Leonard, supra note 30, at 8-9.

46. David Yamada, Workplace Bullying and the Law: A Report from the United States, in JAPAN INST. FOR LAB. POL’Y &
TRAINING REPORT NO. 12, WORKPLACE BULLYING AND HARASSMENT 165, 166 (2013), []; see, e.g., McCann v.
Tillman, 526 F.3d 1370, 1378-79 (11th Cir. 2008) (racially derogatory comments failed to establish severe and pervasive harassment).

47. Dan Calvin, Note, Workplace Bully Statutes and the Potential Effect on Small Business, 7 OHIO ST. ENTREPRENEURIAL BUS.
L.J. 167, 180 (2012); see also Martha Weisel, Bullying in the Workplace: Not Every Wrong Has a Legal Remedy, 67 Lab. L.J. 520,
522 (2016) (noting that allegations of IIED “rarely, if ever, are successful in the context of the employment relationship”).

48. See Marina Sorkina Amendola, Intentional Infliction of Emotional Distress: A Workplace Perspective, 43 VT. L. REV. 93, 120
(2018) (situations of bullying often “fall between the cracks of . . . IIED claims”).

49. See infra discussion of intent and harm at notes 69-99 and accompanying text.

50. See Jean C. Love, Discriminatory Speech and the Tort of Intentional Infliction of Emotional Distress, 47 WASH. & LEE L. REV.
123, 148-58 (1990) (review of intentional infliction of emotional distress decisions which provided for damages but no injunctive relief).

51. David S. Ardia, Freedom of Speech, Defamation, and Injunctions, 55 WM. & MARY L. REV. 1, 15 (2013).

52. Equal Emp. Opportunity Comm’n v. KarenKim, Inc., 698 F.3d 92, 98-101 (2d Cir. 2012); 42 U.S.C. § 2000e-5(g)(1)(injunctive relief
appropriate where employer “has intentionally engaged in or is intentionally engaging in such unlawful employment practice charged
in the complaint”).

53. KarenKim, Inc., 698 F.3d at 99-100; see, e.g., Lewis v. Am. Sugar Ref., Inc., No. 14-cv-02302, 2018 U.S. Dist. LEXIS 139223, at
*8-9 (S.D.N.Y. Aug. 15, 2018) (denial of injunctive relief not abuse of discretion without evidence of high potential for future

54. Allee v. Medrano, 416 U.S. 802, 810-11 (1974).

55. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).

56. See infra decisions referenced at notes 58-83 and accompanying text.

57. See, e.g., People v. Williams, 29 P.3d 197, 203 (Cal. 2001) (mens rea required for criminal assault charge); Tevis v. Spare Time,
Inc., No. C074938, 2017 BL 369767, at *15-16 (Cal. Ct. App. Oct. 16, 2017) (one outburst not establishing outrageous misconduct
directed at her).

58. RESTATEMENT (SECOND) OF TORTS, §§ 13, 18, 21 (Am. L. Inst. 1965).

59. Raess v. Doescher, 883 N.E.2d 790, 794 (Ind. 2008); see also Banziger v. City of Franklin, No. 1:17-cv-00755-JMS-DML, 2017
U.S. Dist. LEXIS 150848, at *6-7 (S.D. Ind. Sept. 18, 2017) (rejecting motion to dismiss assault claim based on angrily pointing a
finger in another’s face).

60. Raess, 883 N.E.2d at 794-95.

61. David C. Yamada, Workplace Bullying and American Employment Law: A Ten- Year Progress Report and Assessment, 32
COMP. LAB. L. & POL’Y J. 251, 272 (2010).

62. See William M. Martin, Yvette P. Lopez & Helen N. LaVan, What Legal Protections Do Victims of Bullies in the Workplace Have?,
14 J. WORKPLACE RTS. 143, 153 (2009) (finding a success rate of 2.2% among IIED claims); see, e.g., Guthrie v. Conroy, 567
S.E.2d 403, 408-09 (N.C. Ct. App. 2002) (bully’s conduct not “atrocious, and utterly intolerable in a civilized community”).

63. Weisel, supra note 47, at 522-23; Loya, supra note 7, at 243-44.

64. Yamada, supra note 61, at 257; see, e.g., Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 66 (Tex. 1998) (claim
dismissed without intent to cause severe emotional distress); Garcia v. Randolph-Brooks Fed. Credit Union, No. SA-18-CV-00978-
OLG, 2019 U.S. Dist. LEXIS 64747, at *14 (W.D. Tex. Apr. 16, 2019) (no liability for IIED based on “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities”).

65. Keashly & Jagatic, supra note 25, at 53.

66. See, e.g., Standard Fruit & Vegetable Co., 985 S.W.2d at 65.

67. Yamada, supra note 25, at 332.

68. RESTATEMENT (SECOND) OF TORTS § 46 (AM. L. INST. 1965); see, e.g., Kearney v. Orthopaedic & Fracture Clinic, No. A14-
1835, 2015 Minn. App. Unpub. LEXIS 905, at *17 (Minn. Ct. App. Sept. 8, 2015) (insensitive and unpleasant bullying not outrageous
or atrocious); Arnold v. Thermospas, 863 A.2d 250, 254 (Conn. Super. Ct. 2004) (yelling & threatening not outrageous, but physical
restraint could be); Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003) (noting “mere insults, indignities, threats, annoyances, petty
oppressions” not outrageous).

69. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999); see also Van Stan v. Fancy Colours & Co., 125 F.3d 563, 569 (7th Cir.
1997) (insensitive method of discharge of person with mental illness not outrageous); Turnbull v. Northside Hosp., 470 S.E.2d 464,
466 (Ga. Ct. App. 1996); Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994) (dismissing claim based on “mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities”).

70. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (AM. L. INST. 1965) (“Complete emotional tranquility is seldom attainable
in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people.”); see, e.g,
Jimenez v. CRST Specialized Transp. Mgmt., 213 F. Supp. 3d 1058, 1065-66 (N.D. Ind. 2016) (IIED claim dismissed because any
contact was “momentary and minor” despite questions of fact remaining whether bully pushed target in chest with enough force to
cause him to move backwards); McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (7th Cir. 1997) (noting that “isolated and
brief incident” of yelling and refusal to reassign target is not extreme and outrageous); White v. Monsanto Co., 585 So. 2d 1205, 1211
(La. 1991) (setting aside damages based on momentary flare of supervisor’s temper); Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th
Cir. 1991) (yelling and screaming by supervisor not outrageous).

71. Amendola, supra note 48, at 119.

72. Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L. REV.
1, 16 (1988).

73. St. Pierre v. E. Me. Med. Ctr., No. 1:12-cv-0265-NT, 2013 U.S. Dist. LEXIS 141324, at *19-20 (D. Me. Sept. 30, 2013).

74. Kearney v. Orthopaedic & Fracture Clinic, P.A., No. A14-1835, 2015 Minn. App. Unpub. LEXIS 905, at *17-18 (Minn. Ct. App.
Sept. 8, 2015); see also Groth v. Grove Hill Med. Ctr., P.C., No. 3:14-CV-01563, 2015 U.S. Dist. LEXIS 92106, at *15-17 (D. Conn.
July 15, 2015) (coworker’s loud and abusive language, fabrication of reason for discharge not establishing IIED).

75. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex. 1999).

76. Sousa v. Rocque, No. 3:11-cv-1839-WWE, 2012 U.S. Dist. LEXIS 149419, at *16 (D. Conn. Oct. 17, 2012).

77. See, e.g., DeLorco v. Waveny Care Ctr., Inc., No. 3:16-CV-01594, 2018 U.S. Dist. LEXIS 145148, at *29-33 (D. Conn. Aug. 27,
2018) (IIED claim dismissed where target experienced anxiety and fear without sufficient intensity and duration of harm even where
physically threatening acts occurred).

78. Arnold v. Thermospas, Inc., 863 A.2d 250, 254 (Conn. Super. Ct. 2004); Burke v. Connecticut, No. MMXCVD65000409S, 2010
Conn. Super. LEXIS 282, at *10-24 (Conn. Super. Ct. Feb. 2, 2010) (court refused to strike claim of employee who was shoved and
kicked); Turner v. Farnia, No. CV075007479, 2010 Conn. Super. LEXIS 2088, at *24-25 (Conn. Super. Ct. Aug. 17, 2010) (no
dismissal of claim by employee who was hit in face, head, and jaw).

79. Honaker v. Smith, 256 F.3d 477, 491 (7th Cir. 2001).

80. Brown v. Kouretsos, No. 15C11076, 2016 U.S. Dist. LEXIS 77727, at * 14-15 (N.D. Ill. June 15, 2016).

81. Honaker, 256 F.3d at 491; GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999); see also Bridges v. Winn-Dixie Atlanta, Inc.,
335 S.E.2d 445, 448 (Ga. Ct. App. 1985) (employer-employee relationship may produce “a character of outrageousness that
otherwise might not exist”); Wilk v. Abbott Terrace Health Ctr., Inc., No. CV065001328S, 2007 Conn. Super. LEXIS 2220, at *33
(Conn. Super. Ct. Aug. 15, 2007); Brown v. Hearst Corp., No. 3:14-cv-1220-VLB, 2015 U.S. Dist. LEXIS 111512, at *24 (D. Conn.
Aug. 24, 2015) (claims not dismissed where abusive supervisors had “actual or apparent authority” over the target, or “power to
affect” target’s interests).

82. See Charest v. Sunny-Aakash, LLC, No. 8:16-CV-2048-T-30JSS, 2016 U.S. Dist. LEXIS 135251, at *13 (M.D. Fla. Sept. 30, 2016)
(relentless pattern of threats, harassment, and inappropriate sexual behavior ); Johnson v. Thigpen, 788 So.2d 410, 414 (Fla. Dist. Ct.
App. 2001) (persistent acts of verbal abuse combined with offensive, unwelcome physical contact); Vernon v. Med. Mgmt. Assocs. of
Margate, Inc., 912 F. Supp. 1549, 1559-60 (S.D. Fla. 1996) (offensive, non-negligible physical contact and persistent verbal abuse
and threats of retaliation can establish IIED); Benton v. Simpson, 829 A.2d 68, 71 (Conn. App. Ct. 2003) (claim based on six to nine
insulting, offensive remarks); Schoen v. Freightliner LLC, 199 P.3d 332, 341-42 (Or. Ct. App. 2008) (five months of verbal harassment
and demeaning treatment).

83. Cabaness v. Thomas, 232 P.3d 486, 500 (Utah 2010), modified by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897, 905
n.35 (Utah 2018).

84. Amendola, supra note 48, at 100, 112.

85. Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 34 (5th Cir.1992); Hawkins v. PepsiCo, Inc., 203 F. 3d 274, 282 (4th Cir.

86. Austin, supra note 72, at 7.

87. Boston v. U.S. Steel Corp., 816 F.3d 455, 467 (7th Cir. 2016).

88. Amendola, supra note 48, at 113-14; see, e.g., Melendez v. Figler, No. 161439/2015, 2018 N.Y. Misc. LEXIS 830, at *11, *14
(Sup. Ct. Mar. 5, 2018) (bullying behavior committed “solely for personal reasons,” “clearly was not committed in furtherance” of
employer’s interests.)

89. Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493-94 (Tex. Ct. App. 2002); see also Goolsby v. Kroger LP, No. 3:15-CV-0631-
D, 2016 U.S. Dist. LEXIS 1398, at *5 (N.D. Tex. Jan. 7, 2016) (claim against employer dismissed based on absence of evidence that
bully’s conduct fell within scope of his general authority).

90. Bagent v. Blessing Care Corp., 862 N.E.2d 985, 992, 994 (Ill. Ct. App. 2007) (citing RESTATEMENT (SECOND) of Agency § 228
(Am. L. Inst. 1958)).

91. Partipilo v. Jewel Food Stores, Inc., No. 16C4450, 2017 U.S. Dist. LEXIS 63739, at *18 (N.D. Ill. Apr. 27, 2017).

92. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617-18 (Tex. 1999); see also Amendola, supra note 48, at 108-15 (summarizing
decisions on employer liability).

93. Pollard v. DuPont, 412 F.3d 657, 665 (6th Cir. 2005); Estrada v. First Transit, Inc., No. 07-cv-02013-WYD-KMT, 2009 U.S. Dist.
LEXIS 122363, at *43-44 (D. Colo. Mar. 6, 2009); Dossat v. F. Hoffman-La Roche Ltd., 600 F. App’x 513, 514 (9th Cir. 2015).

94. Curran v. JP Morgan Chase, N.A., 633 F. Supp. 2d 639, 641 (N.D. Ill. 2009); Jimenez v. Thompson, 264 F. Supp. 2d 693, 696
(N.D. Ill. 2003).

95. Olson v. Bristol-Burlington Health Dist., 863 A.2d 748, 753 (Conn. App. Ct. 2005).

96. Perodeau v. City of Hartford, 792 A.2d 752, 769 (Conn. 2002); McCalla v. Yale Univ., No. 3:17-CV-1044, 2017 U.S. Dist. LEXIS
177297, at *7 (D. Conn. Oct. 26, 2017).

97. Brown v. Kouretsos, No. 15C11076, 2016 U.S. Dist. LEXIS 77727, at *18 (N.D. Ill. June 15, 2016); Frogley v. Meridian Joint Sch.
Dist. No. 2, 314 P.3d 613, 624-25 (Idaho 2013).

98. Frogley, 314 P.3d at 62425.

99. RESTATEMENT (SECOND) OF AGENCY § 213 (AM. L. INST. 1958); Haverly v. Kaytec, Inc., 738 A.2d 86, 91 (Vt. 1999); see
also Saine v. Comcast Cablevision of Ark., Inc., 126 S.W.3d 339, 342 (Ark. 2003) (claim must show that “employer knew or, through
the exercise of ordinary care, should have known that the employee’s conduct would subject third parties to an unreasonable risk of

100. Haverly, 738 A.2d at 91.

101. Kenneth R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793 (App. 1997).

102. Saine, 126 S.W.3d at 342.

103. Med. Assurrance Co. v. Castro, 302 S.W.3d 592, 597 (Ark. 2009).

104. Melendez v. Figler, No. 161439/2015, 2018 N.Y. Misc. LEXIS 830, at *13 (Sup. Ct. Mar. 5, 2018).

105. Jaber v. First Merit Corp., 81 N.E.3d 879, 892 (Ohio Ct. App. 2017).

106. Faragher v. Boca Raton, 524 U.S. 775, 788 (1998).

107. Lemon v. Williamson Co. Schs., No. M2018-01878-COA-R3-CV, 2019 Tenn. App. LEXIS 468 at *7-20 (Sept. 23, 2019).

108. Yamada, supra note 61, at 273.

109. Cabaness v. Thomas, 232 P.3d 486, 504 (Utah 2010), modified by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897, 905
n.35 (Utah 2018). But see Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1197 (10th Cir. 2015) (plaintiff failed to identify specific
provisions of code of conduct that created enforceable obligation of employer to its employees).

110. Cabaness, 232 P.3d at 504.

111. Yamada, supra note 46, at 172.

112. See, e.g., Cole v. Chandler, 752 A.2d 1189, 1195-96 (Me. 2000) (worker’s compensation blocks IIED claim even if mental
distress was caused by intentional acts of coworkers); Hamilton v. Sanofi-Aventis U.S., Inc., 628 F. Supp. 2d 59, 64 n.3 (D.D.C. 2009)
(worker’s compensation covers injuries “directly traceable” to conditions of employment).

113. Hamilton, 628 F. Supp. 2d at 63.

114. See, e.g., Newman v. District of Columbia, 518 A.2d 698, 705-06 (D.C. Ct. App. 1986) (IIED claim grounded on alleged
discrimination based on sexual orientation not preempted by exclusivity provision of worker’s compensation statute); King v. Kidd,
640 A.2d 656, 663-64 (D.C. Ct. App. 1993) (IIED claims related to sexual harassment not preempted by worker’s compensation

115. See, e.g., Brown v. Nutter, McClennen & Fish, 696 N.E.2d 953, 956 (Mass. App. Ct. 1998). But see Silvestris v. Tantasqua Reg’l
High Sch., No. 13-P-0248, 2013 Mass. App. Unpub. LEXIS 1233, at *2 (Dec. 31, 2013) (IIED claim barred by worker’s compensation
statute where employee who caused harm was acting within course of employment).

116. See, e.g., McCrea v. D.C. Police & Firefighters Ret. & Relief Bd., 199 A.3d 208, 213 (D.C. Ct. App. 2019) (mental illness claims
that are the result of workplace sexual harassment not compensable as injuries under the workers’ compensation system).

117. Occupational Safety and Health Act (OSHA) of 1970 § 5, 29 U.S.C. § 654; RESTATEMENT OF EMP. L. § 4.05 (AM. L. INST.

118. MINN. STAT. §§ 1.50, 609.72 (2019).

119. Fran Sepler, Workplace Bullying: What It Is and What to Do about It,” J. COLLECTIVE BARGAINING IN THE ACAD., Issue 10,
2015, art. 42, at 8, [] (citing Absey v. Echosphere LLC, No. 62 CV-10-
6691, 2012 Minn. Dist. LEXIS, at *10 (Jan. 17, 2012)).

120. Patricia Meglich-Sespico, Robert H. Faley & Deborah Erdos Knapp, Relief and Redress for Targets of Workplace Bullying, 19
EMP. RESPS. & RTS. J. 31, 38 (2007); Yamada, supra note 11, at 521.

121. Yamada, supra note 61, at 259, 274; Susan Harthill, The Need for a Revitalized Regulatory Scheme to Address Workplace
Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act, 78 UNIV. CIN. L. REV. 1250, 1270-71

122. Harthill, supra note 121, at 1305.

123. See, e.g., Samantha Jean Cheng Chu, The Workplace Bullying Dilemma in Connecticut: Connecticut’s Response to the Healthy
Workplace Bill, 13 CONN. PUB. INT. L.J. 351, 354-55 (2014) (discussion of Connecticut’s resistance to adopting some form of the
Healthy Workplace Bill).

124. David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8 EMP. RTS. & EMP. POL’Y J. 475, 477 (2004); id. at
517-21 (containing the Model Healthy Workplace Bill).

125. Id. at 518-19.

126. Id. at 520.

127. See id. at 518-20 (providing detailed definitions of terms related to prohibited conduct and describing employer responsibility as
the need to “exercise[] reasonable care to prevent an correct promptly any actionable behavior” in the form of an affirmative defense).

128. David Yamada, Workplace Bullying and the Law: U.S. Legislative Developments 2013-15, 19 EMP. RTS. & EMP. POL’Y J. 49,
52-54 (2015).

129. Rickey E. Richardson, Reggie Hall & Sue Joiner, Workplace Bullying in the United States: An Analysis of State Court Cases, 3
COGENT BUS. & MGMT. 1, 4 (2016); Carly B. Plaskin, Sexual Harassment Training in California Must Now Include the “Prevention

of Abusive Conduct”-AB 2053, NAT’L L. REV. (Feb. 5, 2015),
california-must-now-include-prevention-abusive-conduct-ab []; Op. Tenn. Att’y Gen. No. 15-01 (Jan. 6,
2015), [ /RWL6-MHVC].

130. Stacy A. Hickox & Angela Hall, Atypical Accommodations for Employees with Psychiatric Disabilities, 55 AM. BUS. L.J. 537, 563

131. 42 U.S.C. § 12101.

132. Id. § 12112(b)(5)(A); Myers v. Cuyahoga Cnty., 182 F. App’x 510, 516 (6th Cir. 2006).

133. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2) (2020).

134. Noah D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent,
109 COLUM. L. REV. 1357, 1387-89 (2009).

135. Hickox & Hall, supra note 130, at 555-57 (2018); Debbie N. Kaminer, Mentally Ill Employees in the Workplace: Does the ADA
Amendments Act Provide Adequate Protection?, 26 HEALTH MATRIX 205, 243 (2016); see, e.g., Bradford v. City of Chicago, 121 F.
App’x 137, 140 (7th Cir. 2005) (no transfer as accommodation to avoid stress); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 581 (3d Cir.
1998) (request to be transferred from individual causing employee stress is unreasonable as matter of law under ADA).

136. Boldini v. Postmaster Gen., 928 F. Supp. 125, 131 (D.N.H. 1995).

137. Whalen v. City of Syracuse, No. 5:11-CV-0794, 2014 U.S. Dist. LEXIS 95835, at *20 (N.D.N.Y. July 15, 2014).

138. Austin, supra note 72, at 4.

139. Hickox & Hall, supra note 130, at 564-65; Susan Stefan, “You’d Have to Be Crazy to Work Here”: Worker Stress, the Abusive
Workplace, and Title I of the ADA, 31 Loy. L.A. L. REV. 795, 801 (1998).

140. Hickox & Hall, supra note 130, at 553-54.

141. See infra Part III. B. for a discussion of just cause.


143. Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, 11 EMP. RTS. &
EMP. POL’Y J. 405, 411 (2007).

144. Morton Gitelman, The Evolution of Labor Arbitration, 9 DEPAUL L. REV. 181, 187 (1960).

145. Id.

146. Id. at 189.

147. Fox & Stallworth, supra note 4, at 227, 231.

148. W. Mark C. Weidemaier, From Court-Surrogate to Regulatory Tool: Re-Framing the Empirical Study of Employment Arbitration,
41 UNIV. MICH. J. L. REFORM 843, 866 (2008).

149. Id. at 868.

150. N.Y.C. Transit Auth. v. Phillips, 75 N.Y.S.3d 133, 137 (App. Div. 2018).

151. Id. at 137-38.

152. Jean R. Sternlight, Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where to, #MeToo?, 54
HARV. CIV. RTS.-CIV. LIBERTIES L. REV. 155, 179 (2019).

153. David Horton & Andrea Cann Chandrasekher, Employment Arbitration After the Revolution, 65 DEPAUL L. REV. 457, 479

154. Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 CALIF. L. REV. 1, 56 (2019).

155. Richard A. Bales, Normative Consideration of Employment Arbitration at Gilmer’s Quinceañera, 81 TULANE L. REV. 331, 347
(2006); David Sherwyn, Samuel Estreicher & Michael Heise, Assessing the Case for Employment Arbitration: A New Path for
Empirical Research, 57 STAN. L. REV. 1557, 1560 (2005).

156. Ariana R. Levinson, What the Awards Tell Us about Labor Arbitration of Employment-Discrimination Claims, 46 UNIV. MICH.
J. L. REFORM 789, 837 (2013).

157. Sherwyn, Estreicher & Heise, supra note 155, at 1581.

158. Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self- Regulation, 105 COLUM. L. REV. 319, 337 (2005).

159. Michael Elkon, When Employees Solve Problems with Their Fists, FISHER PHILLIPS (Oct. 1, 2014), [].

160. Michael Z. Green, Debunking the Myth of Employer Advantage from Using Mandatory Arbitration for Discrimination Claims, 31
RUTGERS L.J. 399, 454-58 (2000).

161. Sternlight, supra note 152, at 183.

162. Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment
Arbitration Awards, 29 MCGEORGE L. REV. 223, 237 (1998).

163. Sternlight, supra note 152, at 188.

164. Enter. Wire Co. v. Enter. Indep. Union, 46 Lab. Arb. Rep. (BL) 359, 361-62 (1966) (Daugherty, Arb.).

165. Id. at 363-64.

166. Pocono Med. Ctr. v. SEIU Healthcare Pa., No. 3:10-cv-1334, 2011 U.S. Dist. LEXIS 76109, at *14-15 (M.D. Pa. July 14, 2011).

167. Id.

168. Exide Techs. v. Int’l Bhd. of Elec. Workers, Local 700, 129 Lab. Arb. Rep. (BL) 857, 860-61 (2009) (Walker, Arb.).

169. Metz v. Dep’t of Treasury, 780 F.2d 1001, 1002 (Fed. Cir. 1986).

170. Exide Techs., 129 Lab. Arb. Rep. (BL) at 861.

171. Huntington Ingalls Indus. v. Teamsters Local 991, 136 Lab. Arb. Rep. (BL) 723, 729 (2016) (Wayland, Arb.).

172. City of Piqua v. AFSCME Ohio Council 8, Local 984, 137 Lab. Arb. Rep. (BL) 1888, 1893 (2017) (Goldberg, Arb.).

173. Huntington Ingalls Indus., 136 Lab. Arb. Rep. (BL) at 729.

174. Ameron Haw. v. Haw. Teamsters & Allied Workers, Local 996, 132 Lab. Arb. Rep. (BL) 134, 145 (2013) (Brown, Arb.).

175. Harrington, Warren & Rayner, supra note 12, at 375.

176. Id. at 377.

177. KOVEN & SMITH, supra note 142, at 311-13.

178. Levinson, supra note 156, at 822.

179. Ameron Haw., 132 Lab. Arb. Rep. (BL) at 144.

180. Ecolab Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, Local 124, 128 Lab. Arb. Rep. (BL) 922, 924 (2010) (Kravit, Arb.).

181. Almatis, Inc. v. United Steelworkers, Local 14465, 136 Lab. Arb. Rep. (BL) 1240, 1244 (2016) (Nicholas, Arb.).

182. U.S. Steel Corp. v. United Steelworkers, Local 1299, 136 Lab. Arb. Rep. (BL) 325, 328 (2014) (Bethel, Arb.).

183. KOVEN & SMITH, supra note 142, at 371-77.

184. Ohio Power Co. v. Util. Workers Union of Am., Local No. 111, 129 Lab. Arb. Rep. (BL) 1753, 1759 (2011) (Fullmer, Arb.).

185. Emp. Redacted v. Educ. Ass’n Redacted, 2015 Lab. Arb. Rep. Supp. (BL) 199271 (2015) (Glazer, Arb.).

186. Id.

187. Huntington Ingalls Indus. v. Teamsters Local 991, 136 Lab. Arb. Rep. (BL) 723, 730 (2016) (Wayland, Arb.).

188. Safeway, Inc. v. United Food & Com. Workers, Local 1496, 135 Lab. Arb. Rep. (BL) 473, 478-79 (2015) (Landau, Arb.).

189. See, e.g., Dana Driveshaft Mfg., Inc. v. United Auto Workers, Local 1765, 137 Lab. Arb. Rep. (BL) 1817, 1823 (2017) (Belkin,
Arb.) (employer could choose to enforce rule that was negotiated and known to grievant).

190. See, e.g., W. Rock Co. v. United Steel, Paper & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, Local
498, 136 Lab. Arb. Rep. (BL) 229, 231 (2016) (Heekin, Arb.) (past incidents of violence or threats not “directly comparable”); U.S.

Steel Corp. v. United Steelworkers, Local 1299, 135 Lab. Arb. Rep. (BL) 325, 327 (2014) (Bethel, Arb.) (distinguishing threat made by
another employee).

191. City of Piqua v. AFSCME Ohio Council 8, Local 984, 137 Lab. Arb. Rep. (BL) 1888, 1896 (2017) (Goldberg, Arb.).

192. See generally KOVEN & SMITH, supra note 142, at 453-66.

193. Id. at 454.

194. Fac. Ass’n Redacted v. Emp. Redacted, 2015 Lab. Arb. Rep. Supp. (BL) 195304 (2015) (Burdick, Arb.).

195. Green Diamond Res. Co. v. Int’l Ass’n of Machinists & Aerospace Workers, IAM Local Lodge W98, 135 Lab. Arb. Rep. (BL) 753,
756 (2015) (Gentile, Arb.).

196. Emp. Redacted v. UAW Local Redacted, 2016 Lab. Arb. Rep. Supp. (BL) 205126 (2016) (Roumell, Arb.).

197. KOVEN & SMITH, supra note 142, at 463-67.

198. Arrow Gear Co. v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. 8, 127 Lab. Arb. Rep. (BL) 1370, 1375 (2010) (Cohen,

199. W. Rock Co. v. United Steel, Paper & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, Local 498, 136
Lab. Arb. Rep. (BL) 229, 230 (2016) (Heekin, Arb.).

200. Pa. Elec. Co. v. Util. Workers Union of Am., Local 180, 130 Lab. Arb. Rep. (BL) 543, 552 (2012) (Paolucci, Arb.).

201. Almatis, Inc. v. United Steelworkers, Local 14465, 136 Lab. Arb. Rep. (BNA) 1240, 1245 (2016) (Nicholas Arb.).

202. See, e.g., Armstrong World Indus. United Steelworkers, Local 461, 129 Lab. Arb. Rep. (BL) 232, 237 (2011) (Smith, Arb.) (noting
grievant’s “short service needs to be considered”).

203. Individual Grievant Redacted v. Emp. Redacted, 2015 Lab. Arb. Rep. Supp. (BL) 199061 (2015) (Stutz, Arb.).

204. Union Redacted v. Emp. Redacted, 2016 Lab. Arb. Rep. Supp. (BL) 205116 (2016) (Stutz, Arb.).

205. Arrow Gear Co. v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. 8, 127 Lab. Arb. Rep. (BL) 1370, 1374-75 (2010) (Cohen,

206. Eaton Corp. v. United Autoworkers, Local 2262, 137 Lab. Arb. Rep. (BL) 1869, 1875 (2017) (Belkin, Arb.).

207. Educ. Ass’n Redacted v. Emp. Redacted, 2014 Lab. Arb. Rep. Supp. (BL) 165847 (2014) (Shaller, Arb.).

208. Safeway, Inc. v. UFCW Local No. 1564, 132 Lab. Arb. Rep. (BL) 1605, 1607 (2013) (Nicholas, Arb.); see also Emp. Redacted v.
Teamsters Local Redacted, 137 Lab. Arb. Rep. (BL) 1344, 1350 (2017) (Whelan, Arb.).

209. See, e.g., McQuay Int’l v. Sheet Metal Workers’ Int’l Ass’n, Local 480, 132 Lab. Arb. Rep. (BL) 574, 579 (2013) (Tidwell, Arb.)
(previous misconduct was “older than the CBA allows to be considered”).

210. Emp. Redacted v. Commc’n Workers of Am. Dist. Redacted, 2017 Lab. Arb. Rep. Supp. (BL) 200886 (2017) (Barnard, Arb.).

211. KOVEN & SMITH, supra note 142, at 472.

212. Duffy, supra note 36, at 258.

213. U.S. Steel Corp. v. United Steelworkers, Local 1299, 135 Lab. Arb. Rep. (BL) 325, 328 (2014) (Bethel, Arb.).

214. SEIU Local Redacted v. Emp. Redacted, 2017 Lab. Arb. Rep. Supp. (BL) 200693 (2017) (Siegel, Arb.).

215. Almatis, Inc.v. United Steelworkers, Local 14465, 136 Lab. Arb. Rep. (BL) 1240, 1245 (2016) (Nicholas, Arb.).

216. Superior Beverage Grp. v. Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 377, 127 Lab. Arb. Rep.
(BL) 1710, 1721 (2010) (Franckiewicz, Arb.).

217. Huntington Ingalls Indus. v. Teamsters, Local 991, 136 Lab. Arb. Rep. (BL) 723, 730 (2016) (Wayland, Arb.).

218. Ameron Haw. v. Haw. Teamsters & Allied Workers, Local 996, 132 Lab. Arb. Rep. (BL) 134, 142 (2013) (Brown, Arb.).

219. Durham Sch. Servs. Co. v. Teamsters, Local 270, 130 Lab. Arb. Rep. (BL) 1153, 1158, 1162 (2012) (Toedt, Arb.).

220. Aleris Int’l Inc. v. United Steelworkers, Local 9443-01, 138 Lab. Arb. Rep. (BL) 659, 669-70 (2018) (Weatherspoon, Arb.).

221. City of Detroit v. Police Officers Ass’n of Mich., 137 Lab. Arb. Rep. (BL) 1495, 1503-04 (2017) (Obee, Arb.).

222. Fed. Emergency Mgmt. Agency v. Am. Fed’n of Gov’t Emps., Local 4060, 137 Lab. Arb. Rep. (BL) 757, 764 (2017) (Saunders,

223. Id. at 766.

224. Id.

225. Austin, supra note 72, at 51.

226. Levinson, supra note 156, at 841.

227. Emp. Redacted v. Union Redacted, 2016 Lab. Arb. Rep. Supp. (BL) 199484 (2016) (Glazer, Arb.).

228. Educ. Ass’n Redacted v. Emp. Redacted, 2014 Lab. Arb. Rep. Supp. (BL) 165847 (2014) (Shaller, Arb.).

229. Emp. Redacted v. Union Redacted, 2015 Lab. Arb. Rep. Supp. (BL) 199038 (2015) (Jordan, Arb.).

230. Levinson, supra note 156, at 840.

231. Schnucks Mkts. v. United Food & Com. Workers, Local 655, 131 Lab. Arb. Rep. (BL) 1087, 1090-91 (2012) (Gear, Arb.).

232. See, e.g., Save Mart Supermarkets v. UFCW Union, Local 8 Golden State, 126 Lab. Arb. Rep. (BL) 1018, 1022 (2009) (Riker,

233. Fed. Emergency Mgmt. Agency v. Am. Fed’n of Gov’t Emps., 137 Lab. Arb. Rep. (BL) 757, 761, 766 (2017) (Saunders, Arb.).

234. Id. at 766.


236. Harrington, Warren & Rayner, supra note 12, at 383.

237. Salin, supra note 39, at 29.

238. Peeler v. Boeing Co., No. C14-0552RSL, 2015 U.S. Dist. LEXIS 147791, at *7 (W.D. Wash. Oct. 30, 2015); findings of fact,
conclusions of law at 2016 U.S. Dist. LEXIS 24744, at *21 (W.D. Wash. Feb. 29, 2016).

239. Ryan v. Shulkin, No. 1:15-CV-02384, 2017 U.S. Dist. LEXIS 202467, at *28 (N.D. Ohio Dec. 8, 2017); Tevis v. Spare Time, Inc.,
2017 BL 369767, at *21-22 (Cal. Ct. App. Oct. 16, 2017).

240. Zatz, supra note 134, at 1389.

241. Namie, supra note 18, at 49; Loya, supra note 7, at 251; GARY NAMIE, WORKPLACE BULLYING INST., THE WBI WEBSITE

242. Sepler, supra note 119, at 12.

243. Martin Berman-Gorvine, Consistently Enforce Policies to Stop Bullying, DAILY LAB. REP. (BL) (Jan. 4, 2017, 4:32 PM), [].

244. Kerri Lynn Stone, Floor to Ceiling: How Setbacks and Challenges to the Anti-Bullying Movement Pose Challenges to Employers
Who Wish to Ban Bullying, 22 TEMP. POL. & CIV. RTS. L. REV. 355, 364-65 (2013).

245. Yamada, supra note 25, at 343.

246. Carol R. Gibbons, Rodney A. Satterwhite & Latoya C. Asia, Don’t Get Pushed Around: What Employers Should Do to Address
Bullying Behavior in the Workplace, ASS’N OF CORP. COUNS. DOCKET, Apr. 2010, at 84, 90; see also Stone, supra note 244, at
365; Renee L. Cowan, “Yes, We Have an Anti-Bullying Policy But.:” HR Professionals’ Understandings and Experiences with
Workplace Bullying Policy, 62 Commc’n Stud. 307, 314 (2011).


248. Namie, Namie & Lutgen-Sandvik, supra note 26, at 463.

249. Reggie Hall & Sue Lewis, Managing Workplace Bullying and Social Media Policy: Implications for Employee Engagement, 1
ACAD. BUS. RSCH. J. 128, 135 (2014); Stone, supra note 244, at 367.

250. Elkon, supra note 159.

251. Martin Berman-Gorvine, HR Plays Crucial Role in Easing Workplace Conflict, DAILY LAB. REP. (BL) (July 7, 2017, 4:29 PM), [].

252. Namie, supra note 18, at 49.

253. Joseph Ambash & Melanie Webber, Fisher Phillips, Taking the Bully by the Horns Webinar (Sept. 19, 2017) (recording link
available, [ -M33G]).

254. Stone, supra note 244, at 374-75; see, e.g., Martin Luther Mem’l Home, Inc., 343 N.L.R.B. 646, 647 (2004) (rule prohibiting
“abusive or profane language” not unlawful on its face).

255. Christopher Alvarez, “Civil” War at the Workplace: Enforcing Civility Rules in Light of Federal Roadblocks, FISHER PHILLIPS
(June 30, 2017),

256. Stone, supra note 244, at 376; see, e.g., St. Margaret Mercy Healthcare Ctrs., 350 N.L.R.B. 203, 204 (2007) (concerted activity
loses protection if violent or “of such serious character as to render the employee unfit for further service).

257. Berman-Gorvine, supra note 243.

258. Meglich-Sespico, Faley & Knapp, supra note 120, at 35, 39; Maarit Vartia & Stavroula Leka, Interventions for the Prevention and
Management of Bullying at Work, in BULLYING & HARASSMENT IN THE WORKPLACE, supra note 25, at 359, 365.

259. Bartlett & Bartlett, supra note 6, at 81.

260. Salin, supra note 39, at 29.

261. Stone, supra note 244, at 367.

262. Id.

263. See, e.g., UNISON, HARASSMENT AT WORK, A UNISON GUIDE 19-20 (2016),
help/knowledge/discrimination/bullying-and-harassment[] (scroll down to Resources and click on the
linked pdf, “Harassment at Work”); id. at 28-34 (containing a draft policy).

264. Loya, supra note 7, at 252.


266. Why Your HR Department Can’t Stop Sexual Harassment, DAILY LAB. REP. (BL) (Oct. 30, 2017, 9:56 AM),[].

267. Martin Berman-Gorvine, When Anti-Harassment Policy Isn’t Enough, Fix Corporate Culture, DAILY LAB. REP. (BL) (Nov. 24,
2017, 8:05 AM),

268. Jonathan Segal, Construing a Continuum of Harassing Behaviors, Daily Lab. Rep. (BL) (Jan. 22, 2017, 5:30 AM), [].

269. Vartia & Leka, supra note 258, at 375.

270. Hall & Lewis, supra note 249, at 135.

271. Alvarez, supra note 255; Stone, supra note 244, at 367.

272. Chris Opfer, Weinstein Saga Has Business Leaders Calling Their Lawyers, BLOOMBERG L. (Oct. 20, 2017, 6:59 AM), [https://perma

273. Yamada, supra note 61, at 271.

274. Dan Calvin, Workplace Bullying Statutes and the Potential Effect on Small Business, 7 OHIO ST. ENTREPRENEURIAL BUS.
L.J. 167, 172 (2012).

275. Ann C. Hodges, Employee Voice in Arbitration, 22 EMP. RTS. & EMP. POL’Y J. 235, 242 (2018); Sarah Rudolph Cole, Let the
Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees’ Statutory Discrimination Claims, 14 LEWIS &
CLARK L. REV. 861, 863 (2010).

276. David Beale, An Industrial Relations Perspective of Workplace Bullying, in BULLYING & HARASSMENT IN THE
WORKPLACE, supra note 25, at 283, 288.

277. Yamada, supra note 46, at 174.

BULLYING 1 (2011), download /unions-and-workplace-bullying/?


280. Charlotte Rayner & Duncan Lewis, Managing Workplace Bullying: The Role of Policies in Bullying & Harassment in the
Workplace: Developments, in BULLYING & HARASSMENT IN THE WORKPLACE, supra note 25, at 327, 330-31; Vartia & Leka,
supra note 258, at 365.

281. Austin, supra note 72, at 46.

282. Beale, supra note 276, at 290.

283. See, e.g., Adam Chandler, Perspective, The Fast-Food Industry’s Dismal Labor Practices Are Just the Tip of the Iceberg, WASH.
POST (June 3, 2019),
iceberg [].

284. Meglich-Sespico, Faley & Knapp, supra note 120, at 35.

285. Yamada, supra note 46, at 174-75.

286. See, e.g., Equistar Chems. v. Int’l Union of Operating Eng’rs, Local 399, 126 Lab. Arb. Rep. (BB) 1480, 1496-97 (2009)
(Goldstein, Arb.) (general atmosphere including horseplay supported reduction of discharge to thirty-day suspension).

287. Id. at 1496.

288. Sara Lee Foods v. Int’l Union of Operating Eng’rs, Local 101-S, 128 Lab. Arb. Rep. (BL) 129, 137 (2010) (Pratte, Arb.).

289. See, e.g., Emp. Redacted v. Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO, Local Redacted, 2017 Lab. Arb. Rep. Supp. (BL)
200677 (2017) (Horowitz, Arb.).

290. Rayner & Lewis, supra note 280, at 335.

Table 1: Outcomes of Grievances Filed by Bullies Who Were Discharged

Type of
by Grievant

Total No. of
Grievances by

No./% of

Punishment Vacated
in Sustained
Grievances (no./%)

Reduced to

Reduced to

with No Back
Pay (no./%)

Violence or

81 31/81 (38%) 7/31 (23%) 4/31 (13%) 12/31 (39%) 6/31 (19%)


33 15/33 (45%) 3/15 (20%) 2/15 (13%) 7/15 (47%) 3/15 (20%)

Total 114 46/114

10/46 (22%) 6/46 (13%) 19/46 (41%) 9/46 (20%)

Table 2: Consideration of Mitigating and Aggravating Circumstances

Type of
Behavior by

Awards Considering
Any Circumstances

Job Tenure (no./% of
awards considering


Past Discipline/

Behavior of

Disability of

Violence or

44/81 (54%) 26/44 (59%) 11/44 (25%) 21/44 (48%) 11/44 (25%) 3/44 (7%)


12/33 (36%) 8/12 (67%) 5/12 (15%) 7/12 (58%) 0/12 (0%) 1/12 (8%)

Total 56/114 (49%) 34/56 (61%) 16/56 (29%) 28/56 (50%) 12/56 (21%) 4/56 (7%)


By Stacy A. Hickox and Michelle Kaminski

Source: ABA Journal of Labor & Employment Law, Oct2021, Vol. 35 Issue 3, p399, 50p
Item: 154686141

Do you need help with this or a different assignment? We offer CONFIDENTIAL, ORIGINAL (Turnitin/LopesWrite/SafeAssign checks), and PRIVATE services using latest (within 5 years) peer-reviewed articles. Kindly click on ORDER NOW to receive an A++ paper from our masters- and PhD writers.

Get a 15% discount on your order using the following coupon code SAVE15

Order a Similar Paper Order a Different Paper