• Be Aware of the Workplace Bully
  • October 9, 2008 | Author: Susan K. Lessack
  • Law Firm: Pepper Hamilton LLP - Berwyn Office
  • According a recent Zogby International survey, 37 percent of American workers have been bullied at work (www.workplacebullyinginstitute.org). Not surprisingly, the overwhelming majority (72 percent) of bullies are bosses.

    What is workplace bullying? It generally refers to harassment that is not necessarily based on an employee’s protected characteristic, such as gender or race. Like harassment based on a protected characteristic, bullying can affect adversely physical and emotional health. In fact, some researchers concluded that workplace bullying actually has more severe consequences on employees than sexual harassment. (www.medicalnewstoday.com, “Workplace Bullying More Harmful Than Sexual Harassment,” 10 Mar 2008). But, unlike harassment based on a protected class, bullying may not be prohibited by law.

    Thirteen states have proposed “healthy workplace” legislation, which prohibits workplace bullying. To date, none of those proposed statutes have passed. In general, this legislation prohibited employers from creating or permitting “abusive conduct” or an “abusive work environment.” The various statutes define “abusive conduct” broadly as conduct of an employer or another employee that a reasonable person would find hostile or offensive.

    If workplace bullying laws are enacted, employers will confront lawsuits raising legal issues that have been easily dismissed under the discrimination laws. For example, it is well-settled law in the discrimination context that discrimination laws do not impose a civility code on employers and that mean-spirited behavior in the workplace is usually not unlawful if it is not based on an employee’s protected class. Under the proposed workplace bullying laws, such behavior may be actionable. The proposed laws would invite courts and juries to scrutinize the way people treat each other at work. While a laudable goal, should respectful behavior in the workplace be legally required?

    The difficulty for employers is that different employees subjected to the same conduct will often perceive it differently; what one employee feels is bullying may not trouble another employee. Where is the line between a supervisor being demanding and being abusive?

    Certainly, employers should have policies that make clear that bullying behaviors are not tolerated. The employee handbook should emphasize that employees are to treat each other with respect. Employers also should encourage employees who feel bullied to report the conduct, much the same as discriminatory harassment complaints are handled. Bullying complaints should be treated seriously and be investigated. Depending on the results of the investigation, employers should take appropriate remedial actions, if warranted.

    As with other employment-related claims, employees who feel they are treated fairly are less likely to sue their employers.