The legal exposures of bullying claims

Special prosecutor April Wilson holds a photograph of Kenneth Suttner, January 31, 2017. (Photo: Timothy Tai/Columbia Daily Tribune)
On December 21, 2016, high school junior and Dairy Queen employee Kenneth Suttner, 17, of Glasgow, Missouri, put a gun to his head and squeezed the trigger. Suttner had been bullied at both work and school, and his death created a paradigm shift when a supervisor was criminally charged with involuntary felony manslaughter after a coroner’s jury deemed her responsible for causing the bullied worker to take his own life.

The jury also found that the employer of record and the school the deceased attended contributed to the tragedy.

Defending bullying claims

Claims arising from bullying may potentially invoke a duty to defend and potentially a duty to indemnify if there is a covered loss by the employment practices liability carrier (“EPLI”).

The duty to defend is greater than the duty to indemnify, and the carrier will generally be on the hook for defense costs even if the insurer prevails on the duty to defend issue. Defense counsel will typically be called to defend claims arising from negligent hiring or supervision causes of action. Other claims for actions such as assault, battery and false imprisonment may also include allegations of bullying.

Although claims will usually arise under the EPLI policy, other insurance coverages may also be implicated such as health, liability, and director and officer omissions coverages.

Related: Chubb is covering cyber bullying for U.K. policyholders

The coroner’s jury considered whether the school system and Suttner’s employer could be held liable for the actions of others. (Photo: Shutterstock)

The landmark Kenneth Suttner case

Howard County, Missouri coroner Frank Flaspohler was responsible for determining not only where and when, but how Suttner died. When a death is regarded as sudden with unknown cause or is violent or unnatural in nature, a coroner with jurisdiction over the body may order an inquest, and Flaspohler did “to bring attention to the seriousness of bullying.”

The Suttner inquest was open to the public and created a public record that involved “inquisition rather than accusation.” Additionally, the stated purpose of the Suttner inquest was “to investigate the causes that contributed to his death that may or may not include bullying,” according to the Fayette Advertiser and The Democratic-Leader newspaper.

April Wilson, Esq., was assigned as a special prosecutor to the matter and presented evidence to the six citizens comprising the coroner’s jury at the January 2017 proceeding. The evidence included testimony of witnesses who explained what they saw and heard prior to Suttner’s death.

Constantly ridiculed by supervisor

A former co-worker testified that Harley Branham, Suttner’s supervisor at the Dairy Queen restaurant where they worked, constantly ridiculed Suttner, made him lie on his stomach and clean the establishment’s floor by hand, and threw a cheeseburger at him when it was not made to her satisfaction.

A witness stated that Suttner became so upset by Branham’s treatment that he would go outside and cry.

Other evidence indicated Suttner was also being bullied at his high school.

According to sworn testimony, Suttner was called humiliating names by fellow students at the Glasgow County School District. One witness said a lot of the kids made fun of Suttner. The mother of one of Suttner’s friends told the jury Suttner spent much of his time trying to cope with all of the bullying he suffered.

The stunning verdict

Following deliberations, the coroner’s jury returned these findings:

Suttner’s death resulted from felony involuntary manslaughter due to harassment.

Harley Branham was deemed the principal in the cause of death.

Dairy Queen was deemed negligent in training its employees in harassment prevention and resolution.

The Glasgow County School District followed policies and procedures but were nevertheless negligent in preventing bullying.

“…all of which caused Kenneth Suttner to take his own life.”

Essentially, the jury determined Suttner committed suicide after being bullied at school and work, with the principal blame resting squarely on Branham’s shoulders. After the verdict was read, Branham was arrested and charged with second degree involuntary manslaughter in Suttner’s death. She was booked before being released on $25,000 bail.

Companies that do not have a written anti-bullying policy and reporting process may be held liable for bullying claims. (Photo: Shutterstock)

Legal exposure: Lack of anti-bullying policies and procedures

Many organizations across America instituted anti-harassment policies, grievance procedures and anti-retaliation standards following the United States Supreme Court’s rulings in the landmark Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) cases.

The Court’s decisions established a standard where defendants and employers may avoid liability in certain lawsuits brought pursuant to Title VII of the Civil Rights Act of 1964 42 U. S. C. § 2000e et seq. Title VII is a federal statute and one of the major equal employment laws. It renders discrimination on the basis of race, color, sex, religion and national origin an unlawful employment practice.

‘Reasonable steps to prevent and promptly correct harassment’

To successfully raise the Faragher/Ellerth affirmative defense, the employer/defendant must establish (1) it took reasonable steps to prevent and promptly correct harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures.

To meet this burden of proof, the defendant will typically show it had established written policies and practices including a grievance procedure governing harassment, which the plaintiff failed to utilize, choosing instead to file litigation.

These written standards typically cite more than one place where a complaint of harassment may be directed, which is critical in cases where a senior staff member in the employee’s chain of command is accused of harassment, as in the Ellerth case.

Kimberly Ellerth quit her job after 15 months as a salesperson for one of Burlington Northern’s divisions. In her lawsuit against her ex-employer, Ellerth asserted she was subjected to ongoing harassment by Ted Slowik, her former supervisor’s supervisor.

Establish a protocol for complaints

According to Burlington Northern’s then-existing policy, Ellerth would have been required to report the harassment to her supervisor who would then report the complaint to his or her supervisor. In Ellerth’s case, the latter would have been Slowik or the very person Ellerth said harassed her at work.

To avoid this type of situation, employers generally establish a protocol which allows victims of harassment to direct complaints to their immediate supervisor, a human resources official, the company president, an external source or someone outside their chain of command. This standard has been applied to harassment barred by other federal and state laws, including age and disability-based discrimination.

In accordance with established written policies, victims of harassment, including bullying based on illegal prejudice, may be given notice of a place to go to report such conduct and seek protection. But what about bullying that has no relationship to the victim’s protected class status?

A number of personal factors can spill over into the workplace, leading to some bullying behaviors. (Photo: Shutterstock)

The psychology of bullying

Some of the reasons why people bully at work or in school may bear little relationship to a bias against others, and the triggers may be traced to the bully’s personal life.

“There are individual warning signs that frequently include a change in personal circumstances (such as a divorce or other unstable relationship), financial hardship, health problems and alcohol or substance abuse,” explains clinical psychologist Robert Tanenbaum, Ph.D., of Bala Cynwyd, Pennsylvania, and member of the Workplace Violence Prevention Institute’s Think Tank of Willingboro Township, New Jersey.

These external issues are not left at the employer’s door, but may creep in and affect how the individual behaves at work. “Perpetrators of bullying and workplace violence tend to demonstrate high levels of negative emotions and are prone to disagree with colleagues,” says Tanenbaum.

Human and organizational costs of bullying

Today’s bully may have been bullied in the past and is now directing frustrations on others. According to Tanenbaum, “Perpetrators often have a history of being bullied and exhibit personality traits such as narcissism, anger, low self-esteem and vengefulness.” To minimize the potential for hiring future bullies, an employer should consider how strongly a job applicant ranks with respect to these traits on pre-employment personality assessments.

Allowing bullying to exist in a workplace comes with a high price tag and can be both quantitatively and qualitatively addressed. “There are human and organizational costs that are direct and indirect consequences of bullying,” Tanenbaum explains.

“The human costs include detriments to health and well-being such as psychological distress, depression, anxiety, exhaustion and anger. The organizational costs include employee burnout, absenteeism/sickness, decreased citizenship behavior, lower task performance and creativity, and lower job satisfaction. All of these outcomes can ultimately impact the company’s financial position and good will,” he adds.

Bullies often target individuals who are quieter, don’t look or dress like the majority of class or workers, or are viewed as being weaker. (Photo: Shutterstock)

Mitigating the risk

A bully might zone in on a target who is quiet, does not follow the favored sports team, dresses differently or is simply perceived to be weak.

Anti-bullying compliance is different from anti-harassment standards that involve membership in a protected class, and may in certain instances give rise to the affirmative defense in litigation.

Current anti-harassment policies and practices may not be enough to prevent bullying, communicate the organization’s position on bullying, and provide victims with a dedicated internal grievance procedure where they can take their complaints to.

A potential issue to mitigate bullying claims arises when insureds lack anti-bullying policies and procedures. Exposure exists in situations where the organization either lacks anti-bullying policies or procedures, or if they do have them and fail to follow their own standards as in the Kenneth Suttner case. For these reasons it is recommended that insurance applications specifically ask the potential insured if it has established anti-bullying policies and procedures.

Dr. Tanenbaum adds, “In many instances, developing standards for acceptable workplace behavior can go a long way to creating a healthy work environment. Importantly, careful and thoughtful hiring processes, including pre-employment psychological assessment to determine job suitability, can be highly cost-effective strategies for selecting the right person for the right job.”

Kathleen M. Bonczyk, Esq., is the founder of the Workplace Violence Prevention Institute’s Think Tank of Willingboro Township, N.J. For further information visit www.kathleenbonczykesq.com.

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