Workplace Bullying: What’s the Employer’s Responsibility?

Zelle LLP

Over the past two decades, parents, schools, school boards and legislators have worked hard to address bullying in the classroom and on the playground.  In the workplace, which also sees its share of bullying behavior, there is less clarity and consensus about what can or should be done. While individual workplaces have made strides in stopping bullies, legislators have had a difficult time crafting laws that make bullying illegal.

Bullying – threats, name calling, demeaning behavior, shunning, and similar hostile behavior – is currently only illegal when the basis of the bullying is the victim’s protected class status.  If hostile behavior is directed at a worker because of age, sex, race, national origin, disability, or another protected status, it may be discriminatory and unlawful under federal, state or local anti-discrimination laws.  Bullying not related to the protected class status of the victim, however disruptive or unproductive, generally doesn’t violate the law.  Several states have attempted to enact The Healthy Workplace Bill aimed at stopping workplace bullying, but so far no states have actually passed the measure.

There are a number of reasons why anti-bullying legislation hasn’t become law, but the biggest is probably the difficulty lawmakers have creating (and agreeing on) a workable definition of workplace bullying.  What one employee considers appropriate work instruction or a statement of work rules might be considered hostile or demeaning by another employee.  A voice raised in frustration, or raised in order to be heard over ambient noise, could be perceived as threatening.  Even with a clear definition of bullying in place, the complexity and cost of litigating employee claims could be extraordinary. Courts have said for years that they don’t want to create or try to enforce a “general code of civility” in the workplace.  Anti-bullying legislation would effectively create a civility code, and enforcement of such laws would turn courts into the “super personnel department” they don’t wish to be.

The fact that workplace bullying is not unlawful unless based on protected class status doesn’t mean that it should be tolerated. We think employers should create and maintain a work environment in which bullying is unacceptable.  Here are some tips on how to do that:

  1. Make sure employees know who to talk to when problems arise.  Employers can use dispute resolution policies, employee tip lines, or other avenues of communication that help employees feel comfortable bringing issues forward.
  2. Leaders should model good behavior.
  3. Employees should be required to work cooperatively.  The National Labor Relations Board takes issue with employer attempts to create “civil” workplaces, asserting that those efforts could chill protected speech. That limitation should not discourage employers from requiring employees to be cooperative, however, or from requiring employees to avoid “threatening, intimidating, disrespect[ing] or assaulting a manager/supervisor, coworker, customer or vendor[.]”
  4. Train, train, train.  Employers should train all employees to identify and report inappropriate behavior.  Policies mean very little unless employees have an opportunity to ask questions about them, hear examples of what they mean, and see that the employer is committed to enforcement.  Remember, California requires employers to include the prevention of abusive conduct as a part of their mandatory sexual harassment training.  This mandatory component of California’s new law addresses behavior often involved in bullying, like intimidation, threats, and insults. 
  5. When a complaint crops up, investigate, then discipline when necessary.  Even if complaints have nothing to do with protected class status, employers should respond promptly and appropriately.  As with complaints of discriminatory harassment, complaints of bullying behavior should be investigated and, if behavior in violation of employer policies or behavior that negatively impacts the workplace is found to have occurred, appropriate disciplinary action should be taken.

Bullying behavior may not violate any current law, but with the unemployment rate at 5.3 percent, employers who tolerate it are likely to lose valuable employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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