Currently 44 states have bullying statutes that apply to schools, says Michael Kaufman, a partner with Kaufman Dolowich Voluck & Gonzo in Woodbury, N.Y. "States are going to be addressing this" in the workplace also, he predicts. "It does look like there's going to be a trend."

According to the website of the Healthy Workplace Campaign, a grassroots movement that has pushed for the passage of a proposed anti-bullying statute in 20 states since 2001, only two—New York and Illinois—have actually seen the bill passed in at least one state house. Both those actions came last year.

Gerald Maatman Jr., a partner of Seyfarth Shaw in Chicago, believes passage in a significant number of states is a long way off. "At this point, we're up to 20 states or so that have passed laws outlawing discrimination on the basis of sexual orientation, but it's taken many, many years. And we have zero states that have passed workplace bullying laws," he reports.

Difficult To Define

What exactly is workplace bullying?

"It's very difficult to define," says Mason. "That's one reason why some of these bills have not passed."

In researching the topic, Mason and NU came across characteristics like repeated verbal abuse, work interference and sabotage in typical definitions of the term—language that is included in much of the proposed legislation as well.

"Consistently ignoring somebody—people have said that's bullying. Do I personally think it is? Actually, a lot of this stuff is so immature, it's crazy," Kaufman says.

More broadly, Kaufman says there are two types of workplace bullying in typical definitions—physical and psychological. Physical would include intimidating threats, pushing, shoving and invading a person's personal space. Psychological is mostly covert actions, such as joking, mocking that is intended to be harmful, or even staring at somebody in a hostile way.

Geslewitz says a lot of opposition to proposed state statutes comes from employers who ask where you draw the line. "How are you going to say if the complained conduct is truly abusive or if the situation is just an employee who is overly sensitive?"

For this reason, he says, proposed legislation often requires a plaintiff to produce a statement from a medical professional that the bullying treatment caused psychological or medical problems.

N.Y. Assembly Bill 4258, for example, says that a "competent physician [or] expert at trial" must support the presence of physical or psychological harm, but NU's review of bills from several states finds that this language is by no means universal.

In spite of attention being paid to bullying in the media—and according to Mason, by employers as well—Chartis has not seen many claims based on bullying allegations. "A few have come in where the catchphrase 'workplace bullying' was used in the body of the complaint, but we haven't seen it pled as a separate cause of action—because it really can't be," she says, referring to the absence of anti-bullying laws on the books.

Her experience corroborates the views of the lawyers who say bullying allegations currently come wrapped inside complaints primarily alleging violations of Title VII, which prohibits discrimination based on race, religion, sex or national origin and other federal and state laws regarding workplace discrimination and harassment.

Ed Moresco, vice president, Allied World U.S., doesn't see the need for specifically including the term in policies. "The vast majority of us feel bullying is covered under harassment already," he says. "That's why you don't see carriers running out to put bullying in there."

Tom Hams, managing director and EPLI national practice leader for Aon Risk Solutions in Chicago, agrees. He says there's been an evolution in policies over time, noting that they initially specified coverage for discrimination and sexual harassment, later broadening to encompass all types of harassment, often parenthetically referenced as "sexual or otherwise."

Looking out at the same landscape, Maatman observes, "It's the type of thing EPLI was designed to cover, although you'd probably see some exclusions or some policy definitions that would be crafted to address particular statutes."

COVERAGE QUESTIONS

As for litigation potential, Adeola Adele, EPLI product leader for Marsh's FINPRO group in New York, says even though no laws make bullying illegal in the workplace, "there's nothing stopping a plaintiff from alleging bullying in a complaint" and claiming intentional infliction of emotional distress.

That is why Marsh decided EPLI policies needed to be amended to specifically address workplace bullying. "We don't want an insurer to look at a complaint and say there's no statutory protection, therefore there's no coverage."

She concedes, however, that even without specific language addressing bullying, many policies would cover cases that had no allegations of protected-class discrimination.

"It depends on the policy you're looking at, but they all include 'other workplace torts,' 'other employment-related torts,' or 'workplace harassment.' So you can make an argument that a complaint alleging bullying should fall under one of those definitions.

"But we didn't want to have to make the argument. We wanted it to be crystal clear," she says, noting that after discussing the topic during a panel at the Risk and Insurance Management Society conference in 2008, four carriers agreed to add it by endorsement. More recently, Chartis and Zurich amended their base EPLI forms to include workplace bullying, according to Adele.

Bullying Vs. Harassment

Mason says Chartis expanded its Employment Edge EPLI policy to include workplace bullying because insureds were asking about it. With states continuing to introduce legislation, "it's a concern for our clients," she says. "If states start passing any of the proposals, or if a federal law gets passed, you are going to see a flood of claims. It's going to be a huge concern both for employers and carriers, and we will have to address that separately."

But in Adele's assessment, even a surge in claims won't present a massive problem. "As with any new law, you're going to get the initial flood of litigation. But even if you see frequency, the severity is not so great that underwriters are afraid," she says, noting that proposed state statutes cap damages at $25,000 or $50,000 and that such figures actually fall within the retentions of large insureds.