The Right to Complain about a Bully

A case reported by the BNA this morning caught my attention and the attention of  Michael Fox over at Jottings by an Employer's Lawyer.

In Street v. U.S.Corrugated, Inc.  (W.D. Ky 1.25.11), the company was having financial problems and brought in a "turn around specialist" (Greathouse) to manage.  "Unfortunately, Greathouse’s management style did not mesh well with some of the employees as he often yelled, used profanity, threw objects, made physical threats, and was generally difficult to work with." Six employees -five women and one man- complained about Greathouse's abusive behavior to a production manager.  One of the women also drafted a written complaint detailing the   abusive  behavior.  The complaints were relayed to the general manager and the CEO.  The "turn around specialist" was let go, a seeming victory for the plaintiffs.  However, five of the six who complained soon found that they too were out of jobs, purportedly due  to unsatisfactory job performance and outsourcing.

The plaintiffs made out claims of  (1) gender-based discrimination; (2) retaliation; (3) breach of expressed or implied contract; (4) promissory estoppel; (5) intentional infliction of emotional distress; (6) terroristic threatening; (7) libel; (8) slander; (9) defamation; (10) tortious interference with Plaintiffs’ ability to earn money; and (11) violation of the whistle-blower statute.  None survived summary judgment.

The BNA quotes and summarizes as follows:

   “The record here indicates that both men and women equally fell victim to Greathouse's abusive  

     management tactics,” Judge Joseph H. McKinley wrote. “Greathouse's actions were certainly 

     inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender. 

     Nothing in the record supports such a conclusion.”

     The plaintiffs also alleged they were terminated in retaliation for complaining about Greathouse's 

     alleged conduct, in violation of Title VII and the Kentucky Civil Rights Act. The court, however, ruled 

     that the plaintiffs did not engage in protected activity under Title VII or state law because their 

     complaints to management were not about suspected sex discrimination. Rather, the plaintiffs had 

     complained about Greathouse's alleged abusive treatment of all employees, male and female, the court 

     pointed out.

     “Plaintiffs obviously believed that Greathouse's conduct made their work environment a hostile one 

     and they opposed his presence at the factory and his intolerable management style,” McKinley wrote. 

     “However, Title VII only protects employees from retaliation for having opposed an employer's 

     unlawful actions, such as discrimination based on gender, age or race. There is no protection under  

     the act for employees who simply complain about the boss being a bully.” (emphasis supplied).

Fox, who opposes the enactment of anti-bullying laws, writes that this case will be used as an argument for the need of anti-bullying legislation.  Fox goes on to explain why he disagrees.

My thought is this: Although the plaintiffs "threw the book" at the employer and came away empty, there may already be a law on the books that would have protected them.  If they were employees covered under the NLRA (as opposed to supervisors, independent contractors, etc), "simply complaining about the boss being a bully" to each other would be protected under Section 7.