By JODI SOKOLOWSKI
Buffalo Law Journal

Camille Hopkins says an anti-bullying bill now before the state Assembly will go a long way toward making her feel "safe" while she's at work.

A 20-year City of Buffalo employee, Hopkins said the bullying started shortly after she began her sex change from male to female five years ago. A planner in the city's community services department, she says supervisors asked her to use the toilet in an old janitor's closet during that transition period.

She says a city law expanding anti-discrimination protections to transsexuals, passed in 2002, has not been enough to shield her from abuse and bullying by co-workers.

"The very fact I exist upsets people," she said.

On the table

Hopkins and other supporters of Assembly bill A7801 say they're just looking for accountability for workplace behavior. If passed, the bill would make abusive conduct in the workplace unlawful when an employer is aware of the abuse but fails to make a good-faith effort to correct it.

"This law would help me ... . It would have to make them pay attention to some of my concerns," Hopkins said. "It will take the bully out of the workplace or tell them that their behavior is unacceptable (with discipline) from a small fine to termination."

A recent Zogby Poll found that nearly 50 percent of employees have experienced or witnessed workplace bullying. Still, several labor and employment attorneys say the proposed legislation is unlikely to pass.

"They're attempting to legislate civility in the workplace, and it's going down a slippery slope. What's abusive to one person is charm to another," said Ginger Schröder of Schröder Joseph & Associates, who defends companies from labor and employment claims. "I think this is absolutely ridiculous."

From logistical issues - such as the difficulty of producing documented proof of bullying and the possibility that the court system could be flooded with lawsuits - to theoretical ones, such as how to define bullying, labor and employment defense attorneys say the bill is unrealistic.

"I think it opens a Pandora's Box to allow lawsuits for really what could be a wide spectrum of behavior from bosses and subordinates," said Mark Molloy, a partner at Nixon Peabody's Buffalo office.

What is bullying?

While the bill defines bullying as what a "reasonable person" would consider to be bullying activity, attorneys say there's no fair, comprehensive way to delineate what is hostile or abusive conduct.

By that standard, lawyers say, bullying could potentially include bad performance appraisals from a boss or simply uncivil behavior, such as not holding a door open, from a co-worker. "Think about people who are particularly incapable of dealing with constructive criticism and (view) it as harassment," Schröder said.

Plaintiff's attorney Lindy Korn agrees that it's difficult to determine what constitutes bullying. But that's exactly why bullying has been hard to study and track, she said.

"You have to have people willing to come forth and say they have been bullied," said Korn, of the Law Office of Lindy Korn. "People feel ashamed or are vulnerable, so they don't like to admit that they've been bullied."

Mike Schlict said he was a target of bullying at his IT job at a local university when his supervisor failed repeatedly to pass his time sheets on to human resources.

"A lot of it is setting up the person to fail, being reprimanded for something minor or so it looks like you're being insubordinate," he said.

As a state coordinator for the lobbying group New York Healthy Workplace Advocates, Schlict will give workplace-bullying updates for the Buffalo Block Club Association at 7 p.m. Thursday, Oct. 25, at the Belmont Shelter, 1195 Main St., Buffalo.

While victims of bullying are not included as a class protected under the Civil Rights Act of 1964, the New York bill would open up the definition of harassment.

"There's a blurry line (as to) what's going to be the new bullying and the old harassment," Molloy said. "The old harassment is only illegal if directed toward a person who's a member of a protected group, whereas the new bullying would be illegal if directed to anybody."

Impact on employers

If the bill is passed, costs for everything from litigation to sensitivity training would hit companies.

"When a new law like this is passed, you always see a flood of test cases," Molloy said.

Employees who feel like they've been bullied could bypass their companies' complaint procedures and go straight to court.

"It's creating a potential to sue for anyone who feels any bit of workplace slight," Schröder said. "We're going to wrap everybody up in lawsuits whether they get along in the workplace. I think this is insanity."

James Grasso, a partner at Phillips Lytle LLP, said he doesn't see bullying as an "epidemic," but as a societal issue that should be left to individual companies to address.

"Bullying is a result of interpersonal conflict between two people," he said. "I don't think it's a proper allocation of government resources to try to regulate that."

A birthright, or a privilege?

While everybody would like to work in a pleasant and friendly environment, Grasso said, it's a privilege and not a right.

"A right connotes that the government should enforce it," he said. Local governments are slowly deciding what should be considered a workplace protection, he notes, citing New York City's recent expansion of workplace protections for battered women.

As for Hopkins, the City of Buffalo employee, she has filed numerous discrimination and harassment complaints only to be accused herself of unbecoming conduct, harassment and insubordination.

Hopkins sees those charges as unlawful retaliation. "I think this is part of the city's harassment," she said.

David Rodriguez, deputy corporation counsel, said the city would not comment specifically on Hopkins' claims. He points to a city policy that clearly prohibits workplace bullying.

"We have policies in place that provide a safe work environment for all employees and procedures for employees to register complaints," he said.

Proactivity is cheaper

Even if bullying isn't outlawed, the costs associated with it can be insurmountable, ranging from an unproductive workforce, health-care costs and sick time to low morale and high turnover.

"It's sad to think that you need a policy that says employees need to conduct themselves in a mature and professional manner at work, but in today's world it's probably a good idea to have a simple policy," said Grasso, who advises clients to follow through with an investigation for any type of complaint. "See if it can be corrected through counseling or corrective discipline. Or, if it's a severe incident, it usually results in immediate termination."

Lawyers say whether or not the bill is passed, companies should be re-examining their policies and updating their handbooks to address bullying.

"The idea is, employers should be sensitive to bullying," Molloy said. "Not only because of the potential law, but because it's the right thing to do."