worked, constantly ridiculed Suttner,
made him lie on his stomach and clean
the establishment’s floor by hand, and
threw a cheeseburger at him when it was
not made to her satisfaction.
A witness stated that Suttner became
so upset by Branham’s treatment that he
would go outside and cry.
Other evidence indicated Suttner was
also being bullied at his high school.
According to sworn testimony, Suttner
was called humiliating names by fellow
students at the Glasgow County School
District. One witness said a lot of the kids
made fun of Suttner. The mother of one
of Suttner’s friends told the jury Suttner
spent much of his time trying to cope
with all of the bullying he suffered.
The stunning verdict
Following deliberations, the coroner’s
jury returned these findings:
1. Suttner’s death resulted from felony
involuntary manslaughter due to harassment.
2. Harley Branham was deemed the
principal in the cause of death.
3. Dairy Queen was deemed negligent
in training its employees in harassment prevention and resolution.
4. The Glasgow County School District
followed policies and procedures but
were nevertheless negligent in preventing bullying.
5. “…all of which caused Kenneth Sut-
Legal exposure: Lack of anti-
tner to take his own life.”
Essentially, the jury determined Sut-
tner committed suicide after being bul-
lied at school and work, with the princi-
pal blame resting squarely on Branham’s
shoulders. After the verdict was read,
Branham was arrested and charged with
second degree involuntary manslaughter
in Suttner’s death. She was booked before
being released on $25,000 bail.
bullying policies and procedures
Many organizations across America insti-
tuted anti-harassment policies, grievance
procedures and anti-retaliation standards
following the United States Supreme
Court’s rulings in the landmark Faragher
v. City of Boca Raton, 524 U.S. 775 (1998)
and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998) cases.
The Court’s decisions established a
standard where defendants and employers may avoid liability in certain lawsuits
brought pursuant to Title VII of the Civil
Rights Act of 1964 42 U. S. C. § 2000e et
seq. Title VII is a federal statute and one
of the major equal employment laws. It
renders discrimination on the basis of
race, color, sex, religion and national origin an unlawful employment practice.
To successfully raise the Faragher/El-lerth affirmative defense, the employer/
defendant must establish (1) it took reasonable steps to prevent and promptly
correct harassment in the workplace, and
(2) the aggrieved employee unreasonably
failed to take advantage of the employer’s
preventative or corrective measures.
To meet this burden of proof, the defendant will typically show it had established written policies and practices including a grievance procedure governing
harassment, which the plaintiff failed to
utilize, choosing instead to file litigation.
These written standards typically cite
more than one place where a complaint of
harassment may be directed, which is critical in cases where a senior staff member
in the employee’s chain of command is accused of harassment, as in the Ellerth case.
Kimberly Ellerth quit her job after
15 months as a salesperson for one of
Burlington Northern’s divisions. In her
lawsuit against her ex-employer, Ellerth
asserted she was subjected to ongoing
harassment by Ted Slowik, her former supervisor’s supervisor.
According to Burlington Northern’s
then-existing policy, Ellerth would have
been required to report the harassment
to her supervisor who would then report
the complaint to his or her supervisor. In
Ellerth’s case, the latter would have been
Slowik or the very person Ellerth said harassed her at work.
To avoid this type of situation, em-
ployers generally establish a protocol
which allows victims of harassment to
direct complaints to their immediate su-
pervisor, a human resources official, the
company president, an external source
or someone outside their chain of com-
mand. This standard has been applied to
harassment barred by other federal and
state laws, including age and disabili-
In accordance with established written
policies, victims of harassment, including
bullying based on illegal prejudice, may
be given notice of a place to go to report
such conduct and seek protection. But
what about bullying that has no relationship to the victim’s protected class status?
The psychology of bullying
Some of the reasons why people bully at
work or in school may bear little relation-
ship to a bias against others, and the triggers
may be traced to the bully’s personal life.
“There are individual warning signs that
frequently include a change in personal
circumstances (such as a divorce or other
unstable relationship), financial hardship,
health problems and alcohol or substance
abuse,” explains clinical psychologist Rob-
ert Tanenbaum, Ph.D., of Bala Cynwyd,
Pennsylvania, and member of the Work-
place Violence Prevention Institute’s Think
Tank of Willingboro Township, New Jersey.
These external issues are not left at the
employer’s door, but may creep in and af-
fect how the individual behaves at work.
“Perpetrators of bullying and workplace
violence tend to demonstrate high levels
of negative emotions and are prone to dis-
agree with colleagues,” says Tanenbaum.
Today’s bully may have been bullied
in the past and is now directing frustrations on others. According to Tanenbaum,
“Perpetrators often have a history of being bullied and exhibit personality traits
such as narcissism, anger, low self-esteem and vengefulness.” To minimize the
potential for hiring future bullies, an employer should consider how strongly a job
applicant ranks with respect to these traits on
pre-employment personality assessments.