Many associate bullying with kids and schools. State laws, educational awareness campaigns and all-too-frequent tragedies focus our attention on the problem of school bullying. Much less attention is paid to workplace bullying. In fact, in telling my school-age child that there are bullies at some workplaces, her response was: “There are no bullies at work. It is just people complaining.” This misconception is common, and unfortunately extends to many employers. As a result, many employers don’t see the need to take a proactive stance against workplace bullying. Even employers who acknowledge the prevalence of bullying in the workplace often see no need to act because currently there are no federal or state laws that expressly make workplace bullying illegal. This inaction, however, can translate into missed opportunities and increased costs.
There is a strong business case for addressing workplace bullying. The issue presents a great platform for showcasing the employer’s culture and values in a positive way. Effectively dealing with workplace bullying also reduces a variety of hard and soft personnel costs. Finally, efforts to stop workplace bullying will lessen a company’s risk exposure to lawsuits.
Understanding workplace bullying is the first step. As the U.S. Supreme Court cautioned in the context of hostile work environment harassment cases, Title VII of the Civil Rights Act of 1964 is not a general civility code. Similarly, proscribing workplace bullying should not be viewed as an attempt to enforce a general civility code on employers and potentially increase the number of frivolous lawsuits by disgruntled employees. Rather, workplace bullying involves repeated, unreasonable actions directed toward an employee or group of employees that are intended to humiliate, intimidate or undermine the employee(s), and/or that create a risk to the health or safety of the employee(s). Bullying is status-blind, meaning that it is not directed to an employee or group of employees based on a protected class, such as race or sex, but may be directed at someone the bully feels threatened by or at someone the bully feels can’t or won’t fight back against any abuse or misuse of power. Sometimes, there may be no apparent rationale for the bullying, other than the bully’s desire to act like a bully. Bullying may be exhibited in many forms, such as shouting, threats, sabotaging another’s work, unwarranted criticism, verbal or physical abuse, exclusion of employee(s) and malicious gossip. While bullying is prevalent in the workplace, it often goes unreported out of fear of reprisal or concern that no action will be taken.
Once management understands what conduct may constitute workplace bullying, the next step is to design and implement a program that highlights the employer’s culture and values and demonstrates a zero tolerance for bullying. An effective program should start with a written policy prohibiting bullying and defining the conduct that the employer prohibits. The policy must have a procedure for reporting bullying, investigating complaints and taking disciplinary action against demonstrated instances of bullying. The program should also include training for all employees, with additional management training focused on identifying and stopping bullying. The training can be a platform for illustrating the employer’s commitment to a positive workplace environment and emphasizing the values and attributes the employer wants to promote among its workforce.
Taking a stand against workplace bullying also has a favorable impact on the bottom line. When bullying is effectively addressed, employers should realize a reduction in employee turnover and absences and a corollary uptick in employee morale, productivity, creativity and loyalty. Employers will benefit when employees feel comfortable suggesting new ideas, constructively challenging perceived problems or ineffective processes, and voicing concerns when a bully interferes with an employee’s ability to perform successfully.
Finally, addressing workplace bullying should lessen a company’s legal exposure. Many states have introduced legislation to prohibit workplace bullying, and employers can expect such laws to be enacted in the future. Meanwhile, victims of workplace bullying currently can assert various legal theories against an employer for bullying conduct. Depending on the state and the specific nature of the bullying conduct, employees can assert claims for intentional and/or negligent infliction of emotional distress, negligent hiring and/or retention, and/or defamation. Employees also may be able to avail themselves of workers’ compensation protection in certain cases. Accordingly, proactive employers will be in the best position to reduce the likelihood of such suits and to defend against any suits filed.
Workplace bullying is an unfortunate reality, and is not going away. Employers who confront such conduct in the workplace and take steps to address it will have more productive workers and reduced legal exposure—a win-win situation for all.
Debra S. Friedman is a labor and employment attorney at Cozen O’ Connor and can be contacted at email@example.com.