On April 23, 2019, Governor Bill Lee signed a bill that extends protection from some legal claims associated with workplace bullying to all Tennessee employers. Employers that adopt an anti-bullying policy that conforms to the law will be immune from lawsuits alleging intentional or negligent infliction of mental anguish due to the abusive conduct of employees.

In 2014, Tennessee adopted an anti-bullying statute, the Healthy Workplace Act. The act applied to only state and local government agencies. The amendment Governor Lee signed extends the definition of “employer” in the act to include private employers.

The Healthy Workplace Act does not create a new cause of action based on bullying in the workplace. Instead, it offers a legal incentive to encourage employers to adopt an anti-bullying policy. Employers that adopt a policy that complies with the act will be “immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.” (Tennessee courts use “mental anguish” and “emotional distress” interchangeably).

“Abusive conduct” is defined to include “repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets”; “verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace”; or “the sabotage or undermining of an employee’s work performance in the workplace.” Significantly, the act does not limit the definition of “abusive conduct” to conduct based on traditional protected classifications, such as race, age, or sex. The focus of an anti-bullying policy under the Healthy Workplace Act will be on the conduct, not the motivation for the conduct. In turn, the scope of the policy will necessarily encompass a very broad landscape of comments, gestures, and actions employees may engage in for any reason. One new source of bullying claims derives from forms of harassment not yet fully recognized under Tennessee law, such as harassment based on sexual orientation or gender identity.

The act provides all employers that choose to adopt an anti-bullying policy with two options to obtain the immunity protection. As passed in 2014, the act instructed the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) to publish a model anti-bullying policy. To comply with the act, employers can adopt this model policy. Alternatively, employers can draft their own policy provided it meets two requirements set out in the act: The policy must (1) assist employers in recognizing and responding to abusive conduct and (2) prevent retaliation against employees who report abusive conduct.

The amendment to the law leaves some questions unanswered. The statute does not expressly address whether an employer’s actual enforcement of an anti-bullying policy (as opposed to the mere adoption of a policy) will affect any grant of immunity. TACIR’s model policy goes beyond just a written policy and encourages employers to train employees and supervisors regarding the policy, set up an effective complaint procedure, promptly investigate claims, and take prompt and effective corrective action. TACIR’s model policy suggests that any grant of immunity will require more than a written policy. Employers with robust anti-harassment programs may recognize that the framework of their anti-harassment policies can provide a template for formulating an anti-bullying policy that is equivalent to TACIR’s model policy.

The amendment also does not address the interplay between this law and Tennessee’s workers’ compensation law, at least as it involves claims of negligent infliction of mental anguish. Tennessee courts have consistently held that the exclusive remedy provision of the workers’ compensation law bars claims of negligent infliction of emotional distress based on conduct in the workplace.

As employers consider revising or adopting anti-bullying policies to conform to Tennessee’s Healthy Workplace Act, it is important to recognize what this new law does not do:

• The Healthy Workplace Act does not mandate that employers adopt an anti-bullying policy.

• The bill does not create a new workplace bullying cause of action against employers that choose not to adopt an anti-bullying policy. Such employers simply remain subject to suit for long-recognized claims of negligent or intentional infliction of mental anguish.

• The statute does not appear to affect the existing protection employers have against claims of negligent infliction of mental anguish under the exclusivity provisions of the Tennessee Workers Compensation Act.

• The bill does not protect employers from harassment claims under federal and Tennessee statutes based on traditional protected classifications, such as sex, age, or disability. Under existing law, employers should still have in place effective anti-harassment policies and procedures.

Under existing Tennessee law, intentional infliction of mental anguish claims, in the absence of traditional sexual (or other) harassment claims, are uncommon and difficult for plaintiffs to establish. These claims require plaintiffs to prove three essential elements: (1) the conduct complained of must be intentional or reckless; (2) the conduct must be so outrageous that it is not tolerated by civilized society; and (3) the conduct complained of must result in serious mental injury. Tennessee courts have traditionally set a very high bar for what is considered outrageous conduct.

Employers may want to review their existing policies and consider the benefits of adopting an anti-bullying policy or modifying existing policies to take advantage of the limited immunity the Healthy Workplace Act offers. One important consideration when modifying any existing anti-bullying policies or adopting a new policy is the relative cost and benefit of committing to investigating and responding internally to a new breed of complaints from employees.