Bullying in the Workplace: Will Your Workers Be Able To Sue You For Bullying?
The word “bully” often conjures up images from the mid-1980’s classic Back to the Future in which mousey George McFly is hounded and humiliated by the Goliath-sized alpha male named Biff Tanner. I can still hear the taunting words of Biff echoing through the 1950’s cafeteria: “Hello McFly. Anybody home, McFly?” And who could help but cheer when George gets up the guts to sock Biff in the face at the high school sock hop? This quintessential form of bullying and other less overt forms of intimidation exist not only in the schoolyard but also in the workplace.
Savvy human resources professionals are generally aware that employers can get into hot water when sexual harassment is left unchecked or when an employee is harassed based on their religion, age, gender, or political affiliation.
State legislatures across the country have been considering whether employers should add to the list of litigation fodder. In a state capital near you, bullying in the workplace may emerge as a new private cause of action for victimized employees. This article provides the lay of the land in the area of workplace bullying legislation and also gives you tips to stay ahead of the game.
Anti-Bullying Legislation on the Horizon
During the last decade, new trends in workplace bullying management have evolved into anti-bullying legislation. Certain provinces of our northern neighbor, Canada, have outlawed “psychological harassment” in the workplace. Similar protection also exists in Australia, Ireland, Sweden, and the United Kingdom. Back in the U.S.A., 16 states (Nevada, Illinois, Utah, New Jersey, Washington, New York, Vermont, Oregon, Montana, Connecticut, Hawaii, Oklahoma, Kansas, Missouri, Massachusetts, and California) have flirted with anti-bullying laws. In the past seven years, these states have considered but not passed bills that would create a private right of action for workplace bullying.
In May 2010, the New York State Senate passed its version of anti-bullying bill. The bill was tabled by the House for consideration in 2011. According to Senator George Onorato, Chair of the Labor Committee,
Workplace bullying, abuse and harassment bring with them a variety of very serious human and economic costs. . . Abusive behavior can cause grievous harm to employees who are the victims of it, leading to all manner of health problems and, often, forcing them to leave their jobs to escape it. In addition, it costs employers in terms of lost employee productivity, and other workplace problems. By taking aim at abusive work environments, this legislation will protect employees from inappropriate behavior and help our businesses to become more productive and successful.
Thus, New York will be one to watch during the legislative session next year.
Is Bullying In My Workplace?
You may be thinking, “My company does not need to worry about bullying in the workplace because there are no Biff-like characters in our place of business.” According to a 2008 survey, however, 75% of employees surveyed had been affected by workplace bullying either as victims or witnesses. Similarly, the National Institute of Occupational Safety and Health surveyed over 500 private companies and reported that 25% experienced at least one bullying incident in the previous year. The prevalence of bullying in the workplace may be attributed to the fact that bullying encompasses non-aggressive forms of intimidation.
Consider a modern-day cinema “classic,” Office Space. In Office Space, a somewhat sleazy supervisor, Bill Lundberg, repeatedly ignores and isolates an admittedly odd and less popular employee named Milton. Eventually, Lundberg removes Milton from his cubical and relocates him to a storage area in the basement to toil among the mice. Although Lundberg never yells at Milton or publicly humiliates him, Milton could make a case that he has been the victim of bullying.
Defining Hostile Bullying and Intimidation at Work
Bullying is sometimes defined as the repeated and unreasonable actions of an individual or group directed toward another individual or a small group with the intent to intimidate the target(s) thereby creating a health and safety risk for the employee(s). Bullying boils down to a power dynamic in which the bully habitually disempowers the target employee. It may occur between supervisor and subordinate or between co-workers. Typical bullying behavior may include :
– False accusation of “errors” made by target.
– Nonverbal displays of intimidation (e.g., staring, glaring).
– Undermining the target’s opinions in a public setting.
– Exclusion or social isolation.
– Displaying apparently uncontrolled mood swings.
– Creating a separate set of rules and standards for the target.
– Failing to recognize quality work by the target.
– Spreading malicious rumors about the target.
Checklist for Employers
Although workplace bullying is not currently illegal in the United States, you can stay ahead of the game by consulting the checklist below:
1) Review your anti-harassment policies.
2) Consider whether bullying behavior is encompassed within your anti-harassment policy.
3) Educate your managers and supervisors about bullying behavior and how to handle employee complaints.
4) Consider incorporating this sample workplace bullying policy.
Example of Bullying in the Workplace
Company X considers workplace bullying unacceptable and will not tolerate it under any circumstances.
Workplace bullying is behavior that harms, intimidates, offends, degrades or humiliates an employee, possibly in front of other employees, clients, or customers. Workplace bullying may cause the loss of trained and talented employees, reduce productivity and morale and create legal risks.
Company X believes all employees should be able to work in an environment free of bullying. Managers and supervisors must ensure employees are not bullied. Company X has grievance and investigation procedures to deal with workplace bullying. Any reports of workplace bullying will be treated seriously and investigated promptly, confidentially and impartially.
Company X encourages all employees to report workplace bullying. Managers and supervisors must ensure employees who make complaints, or witnesses, are not victimized. Disciplinary action will be taken against anyone who bullies a co-employee. Discipline may involve a warning, transfer, counseling, demotion or dismissal, depending on the circumstances. The contact person for bullying at this workplace is:
Davis Wright Tremaine LLP
1. Fisher-Blando, Judy, Aggressive Behavior: Workplace Bullying and Its Effect on Job Satisfaction and Productivity.
2. Borrowed from the Washington State Department of Labor and Industries. Report #87-2-2008. (April 2008).
3. From the Workplace Bullying Institute (www.workplacebullying.org)
4. Borrowed from the Washington State Department of Labor and Industries. Report #87-2-2008. (April 2008).
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