By now, you have probably heard about an expletive-filled tirade unleashed by actor Tom Cruise on the set of the seventh Mission Impossible installment, of which Cruise is both star and producer. Cruise was reportedly upset that two crew members stood too close to each other at one point, violating the strict distancing guidelines in place to prevent COVID-19 transmission. Claiming to be concerned about the impact of his project's success on the continuation of film and television production throughout the industry, Cruise went on for about three minutes, in very angry and, arguably, abusive manner. But, from an employment law perspective, was it illegal?
We get a lot of calls from employees who have been bullied at work, and who want to know if they have a claim for harassment as a result. Unfortunately, under California law, bullying on its own is usually not illegal. An employee no longer needs to show that harassment was “severe” or “pervasive”; as of 2019, California has adopted a standard first authored by Justice Ruth Bader Ginsburg which requires only “that the harassment so altered working conditions as to make it more difficult to do the job.” But not any type of harassment is illegal; it is still a product of anti-discrimination laws, so harassment is only prohibited when it is based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
So, what about bullying of employees in general, which did not have a discriminatory motive? While not illegal per se, bullying that results in physical or emotional harm to the employee may give rise to liability in the following ways:
Worker's Compensation. If an employee is physically or psychologically injured by bullying at work, by a supervisor or anyone else, this may give rise to a claim against the employer's worker's compensation insurance (which every employer in California is required to maintain). For psychological injuries, it must be sufficient to cause disability or the need for medical treatment, and be diagnosed in accordance with generally accepted psychiatric criteria. (Labor Code sec. 3208.3.)
Disability Accommodation. Employers covered by the Fair Employment and Housing Act (FEHA)—those with at least five total employees—must make reasonable accommodation for any known physical or mental disability of an employee. (Gov't Code sec. 12940(m).) An employee who is suffering mental distress or any other adverse physical or mental condition as a result of bullying should obtain a diagnosis and recommendation from a medical provider and share that information with the employer. By law, if the condition is caused by workplace bullying and likely to get worse if the bullying continues, the employer will have a duty to take action to prevent further harm. This includes engaging cooperatively with the employee, in what is referred to as the “interactive process,” to determine how the employee's needs can be reasonably and effectively accommodated. (Gov't Code sec. 12940(n).)
A “disability” includes any physical or mental impairment that limits a major life function, such as working—and it can include stress, anxiety, sleep deprivation, and other symptoms commonly experiences as a result of bullying or other abusive treatment at work.
Intentional Infliction of Emotional Distress. This is the most difficult to prove, even if found to be an exception to worker's compensation coverage (generally the exclusive remedy to compensate an employee for a workplace injury). For a claim of intentional infliction of emotional distress, a person must show that the conduct was outrageous, meaning that was “so extreme as to exceed all bounds of that usually tolerated in a civilized community”; that the conduct was intended to cause emotional distress, or recklessly disregarded the likelihood that emotional distress would result; and that the emotional distress was severe, meaning that “no reasonable man in a civilized society should be expected to endure it.” Courts have specifically found that “mere profanity, obscenity, or abuse” do not generally entitle the victim to recovery.
In addition, employees have a right to disclose information about their working conditions and may not be fired, disciplined, or otherwise retaliated against for doing so. So an employee who does not personally suffer physical or emotional injury as a result of the bullying can still complain about it or report it to government authorities or to news organizations, as a way of discouraging the behavior and preventing other employees from being harmed. (Labor Code sec. 232.5.) Employees also have a right to report suspected violations of law to supervisors or government authorities (Labor Code sec. 1102.5) and to make complaints to the employer or any government agency about suspected health and safety violations (Labor Code sec. 6310). Employers cannot retaliate against a “whistleblower” under any of these laws.
If the conditions are bad enough, the employee may resign and claim constructive termination. This requires that the employee was subjected to working conditions that violated public policy, and which were so intolerable that any reasonable person in that situation would feel they have no alternative except to resign. Whether bullying and non-discriminatory harassment are considered to be against public policy in California is an open question, but the law appears to be moving in that direction.
As for the Mission Impossible 7 crew—assuming, for purposes of this analysis, that they were filming in California—anyone who suffered serious stress or anxiety as a result of Cruise's abusive rant should document their symptoms and seek medical advice and treatment. Those with recognizable psychiatric injury could file claims for worker's compensation. They and others may report their symptoms to the production company and ask for reasonable accommodations, e.g., that Cruise be trained and instructed not to treat the employees on set in such a way. Under some circumstances, a leave of absence or other restriction of work hours may also be an appropriate accommodation, when necessary to prevent further physical or mental harm to the employee. It would be difficult to prove intentional infliction of emotional distress in this scenario, since Cruise claims to have acted for the sake of worker safety and the overall well-being of his industry, and because employees in film and television production have historically been expected to tolerate similar conduct by Cruise and other untouchable divas.
Still, it bears reminding that no one has the right to abuse or bully any employee, and that no employee should tolerate such treatment. Owners and supervisors who take advantage of their position to mistreat subordinates are causing serious harm, all the more so because the employee is dependent upon his or her job for the ordinary necessities of life. Whether your boss is famous or not, if you are being bullied at work, you can and should stand up for yourself.
Our firm offers case evaluation at no charge and advice to current employees at a reasonable hourly rate. If you have been fired and would like to know if you have a case, the consultation is free.