Jerks in the Workplace: The Legal Risks Created by Bullying

by Whitney Harmon and Joann Coston-Holloway

Bullying is the sexual harassment of 20 years ago:  Everybody knows about it, but nobody wants to admit it.”  –  Louis L. Maltby, President, National WorkRights Institute

Over the last decade, several states have introduced workplace bullying legislation that essentially allows employees to sue for harassment without requiring a showing of discrimination.  The reasoning behind such legislation suggests that companies should not allow “jerks” to control the workplace.  Legally, however, this presents a very tricky issue that could potentially change the face of U.S. employment law. Critics assert that the problem with anti-bullying laws is the lines are blurred regarding what constitutes “illegal bullying,” and such laws would open the floodgates for meritless lawsuits.

As an initial matter, bullying does not, in and of itself, violate Title VII or any other anti-discrimination laws. Although employees can bring hostile work environment claims, which may involve an element of bullying, these claims are brought in the context of harassment because of the victim’s membership in a protected category, such as race, sex, religion, or national origin.  To the contrary, anti-bullying laws would protect all workers, regardless of their membership in a protected class.  Several other countries have already enacted anti-bullying laws, and it is possible that the U.S. may be headed in the same direction.  As a matter of fact, Charges filed with the Equal Employment Opportunity Commission against legal sector employers for harassment and discrimination increased 8% between 2010 and 2011, reversing a trend that included years of decline.  The mere fact that harassment and discrimination claims are on the rise likely indicates that bullying is also on the rise in the legal industry.  An increase in Equal Employment Opportunity Commission Charges in other industries will likely follow the same trend.

What Is Workplace Bullying?

One problem lawmakers will face in enacting anti-bullying legislation will be actually defining what constitutes “illegal bullying.”  Workplace bullying has been defined as persistent, offensive, abusive, intimidating or insulting behavior or unfair actions directed at another individual, causing the recipient to feel threatened, abused, humiliated or vulnerable.  Workplace bullying typically takes place in the following forms:

  • Verbal abuse – shouting, name calling, swearing or malicious sarcasm;
  • Gossiping and/or spreading lies or rumors about workers;
  • Threats or intimidation;
  • Teasing – about appearance, life-style, habits, attitude, or private lives;
  • Ignoring or excluding workers;
  • Harsh or constant criticism;
  • Aggression;
  • Interference with work performance; and
  • Using technology for bullying.

All levels of employees within an organization has experienced bullying in the forms listed above, including employees against employers, supervisors against employees, employees against supervisors, employees against clients, and even clients against employees.

Based on a study conducted by SHRM, about half (51%) of organizations reported that there had been incidents of bullying in their workplace. Among those organizations that experienced incidents of bullying, nearly (73%) reported verbal abuse.  Additionally, 3 out of 5 organizations (62%) reported malicious gossiping and spreading lies/rumors about workers, and one-half (50%) reported threats or intimidation. Furthermore, according to a survey sponsored by the Workplace Bullying Institute in 2010, 35% of U.S. workers have experienced or witnessed bullying, 62% of bullies are men, and 38% are women.  The survey also concluded that men bully men more frequently than they bully women, and women usually bully other women.  Workers ages 30-49 are the most frequent targets for workplace bullying.

What are the Risks and Effects of Workplace Bullying?

First and foremost, workplace bullying can have a high economic cost for an employer.  Bullying cases lead to high employee turnover, higher healthcare costs, low productivity, absenteeism, low morale, and retaliation. Typically, employees that are a subject of bullying have physical and emotional problems, including but not limited to, anxiety, depression, headaches, insomnia, etc.  These employees also experience decreased morale, decreased trust, and decreased productivity. These factors either lead to increased concerns about workplace violence or leads to actual workplace violence. In fact, workplace violence is a major concern for employers currently, as evidenced by the overwhelming increase in the guns-at-work laws, which essentially allow employees to bring guns to work. The increase in the guns-at-work laws is due to the rapid influx of employee-related violence reported by many employers, which have led to injuries and even death in some cases, in workplaces across the U.S. The increase in workplace bullying, combined with an increase in laws allowing employees to bring guns to work, creates a legitimate concern for employer liability for claims arising from or related to a failure to provide a safe working environment.

Practical Tips to Minimize Workplace Bullying

In order to avoid workplace bullying, employers should take the following steps:

  • Implement a workplace bullying policy;
  • Implement a grievance process for investigating and addressing the allegations of bullying;
  • Monitor bullying behavior to make sure such behavior stops and does not continue or escalate; and
  • Conduct regular bullying prevention/awareness training and orientation programs.

Any steps undertaken by employers in an effort to control and minimize the risks associated with workplace bullying should be clearly communicated to employees so that employees are aware of the employer’s stance on workplace bullying. There are several ways to communicate this information to employees, including through: policies in the employee handbook, employee orientation, a company code of conduct, a company intranet or website, training, staff meetings, and even emails from HR or management.  Employers should also insure that employees have several reporting channels or mechanisms for reporting workplace bullying.  This can include the HR Department, the target employee’s direct supervisor, or the management level staff, employee relations representative within HR, a hotline or other reporting system, a union representative, if applicable.

Furthermore, when investigating workplace bullying, an employer should always follow the paper trail.  Employers should look for excessive grievances or sick leave requests and review exit interviews or EAP requests to determine if there is a pattern of bullying at the workplace. Employers should never ignore complaints to avoid the chance each complaint will further escalate. If necessary, employers can also monitor employees’ emails and voicemails, if there is legitimate access to these messages, to look for messages between the bully and the alleged bullying target.  Employers should also follow their typical investigation procedures and protocols, and remember to document everything! 

In a nutshell, employers in the U.S. should be on the lookout for anti-bullying laws on the horizon. In fact, employers should be proactive and start implementing anti-bullying policies and taking appropriate measures to ensure there is no bullying in the workplace. Regardless to whether anti-bullying laws are eventually enacted, bullying in the workplace is still a costly hindrance to employers’ bottom line and should be avoided.