Most employers know by now that they must take steps to prevent and penalize harassment and discrimination based on race, gender, religious beliefs, disability, and other protected categories. But “anti-bullying” may sound like a concept that belongs in junior high or high school, and not in a business.
Employment lawyers know (and often have to explain to their non-lawyer friends) that “hostile work environment” is a legal term of art referring to a subset of discrimination based on protected categories – not a catchall term that makes it illegal for a coworker or a boss to be a complete jerk. As long as your boss is an “equal-opportunity” jerk, he or she may call you an “idiot,” curse you out, and demand that you answer 2am texts, without breaking any laws. And traditionally, especially in high-pressure industries and fields, companies looked the other way.
But this may be changing. Many employers have begun to realize the effects of verbal abuse, intimidation, and sabotage in the workplace. Managers that foster such miserable environments can cause depression, digestive issues, and even PTSD in their subordinates. These effects, in turn, lead to decreased productivity and higher turnover.
A Swedish study in 2012 found that not only did targets of bullying experience higher instances of depression, but so did bystanders who observed the bullying behavior. https://workplacebullying.org/multi/pdf/witness-depression.pdf. Bullies included “people who belittle, humiliate, and threaten their coworkers,” and even observing bullies in action caused employees’ observations, fears, and expectations to change. So, according to the study, “bullying is not simply an interpersonal issue but is an organizational dynamic that impacts on all who are exposed – whether primarily or secondarily.”
Moreover, workplace bullying that does not start as harassment on the basis of race, gender, or disability, often crosses that line over time. And, because an office culture that includes bullying can lead to physical and mental disabilities, people who are fired or pressured to quit because their panic attacks are affecting their productivity could easily claim their firing was on the basis of their disability.
Therefore, employers would be wise to take bullying seriously – both between “equal” coworkers and from all levels of management. Company executives and human resources managers who think their organization is bully-free because they don’t see it may want to take a closer look. The Workplace Bullying Institute’s 2017 survey (https://www.workplacebullying.org/wbiresearch/wbi-2017-survey/) yielded some potentially surprising results:
- 19% of US workers have been bullied in the workplace – almost 1 in 5.
- Another 19% have seen bullying in the workplace
- 61% of US workers are aware of bullying in their workplace.
Complaining to the employer or to coworkers often backfires:
- 60% of coworker reactions are harmful to targets, and
- 71% of employer reactions are harmful to targets.
Perhaps it is not surprising, then, that 29% of workplace bullying victims remain silent.
So, to find out if your company has a bullying problem, you may need to go outside your doors – or even your company’s doors – to find a law firm or consultant to assist in conducting an anonymous investigation, and to help advise you as to what to do when you receive the results. Ignoring the problem will only make it worse, and can expose your company to liability.
No US state bans workplace bullying – yet. However, the Healthy Workplace Campaign (HWC) is pushing for anti-bullying laws, including laws that would allow bullied employees to sue their employers. According to the HWC, workplace bullying is “repeated health-harming mistreatment of one or more persons (the targets) by one or more perpetrators: abusive conduct that takes one or more of the following forms:
- Verbal abuse, or
- Threatening, intimidating or humiliating behaviors (including nonverbal), or
- Work interference – sabotage – which prevents work from getting done, or
- Some combination of one or more.
HWC claims that workplace bullying leads to lost productivity and increased instances of illnesses ranging from hypertension and depression to PTSD. Employers contend that these categories of behaviors are incredibly broad and would be nightmarish to enforce. Further, such changes could entirely upend the cultures of workplaces in which a “thick skin” and “sharp elbows” are seen as a virtue. Perhaps for that reason, no state has yet outlawed bullying that is not protected-class based.
However, California has passed a law requiring employers to provide training on workplace bullying beginning January 1, 2020. California Assembly Bill 2053 added anti-bullying training to existing discrimination and harassment training requirements.
Specifically California employers must “include prevention of abusive conduct” in their anti-harassment training. California Labor Code section 12950.1(b). The new law defines “abusive conduct” as:
[C]onduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
In light of this new law, your company should be actively seeking out training and legal advice regarding workplace bullying. Our experienced employment lawyers can assist you in navigating this evolving area of the law.
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