Workplace Bullying: What Should an Employer Do?
By: MARY M. KRAKOW
April 2006
When employees complain that a colleague frequently glares at them and gives them the "silent treatment," thus interfering with work production and decreasing department morale, what is an employer to do? What if one employee complains that others in her department repeatedly exclude her from lunch and other social outings? Or, what if employees complain that their supervisor speaks to them in a loud, gruff, and intimidating tone of voice because, as he says, "That's just how I talk"?
These types of behavior, if severe enough, may constitute "workplace bullying." Reminiscent of junior high school, bullying is not uncommon in the workplace. These behaviors can result in decreased production, low morale, and even increased turnover. Still, most employers and employees would agree that people cannot be forced to like or even always to be civil to one another. So, when should an employer take action regarding "bullying" behaviors and what should that action include?
The Universe of Bullying: Unlawful Harassment and Other Bad Behavior
To answer these questions, we first need to review the kinds of behavior that fall within the broad category of "workplace bullying." The universe of workplace bullying can be divided into two parts:
- Bullying behaviors that are unlawful under federal and state anti-discrimination and harassment laws, and
- Bullying behaviors that are not covered by such laws and, for lack of a better term, will be referred to here as generic workplace bullying.
As to the first type of bullying behaviors, most employers know that state and federal civil rights laws prohibit discrimination and harassment against employees because of their legally-protected status - sex, race, national origin, color, religion, sexual orientation, age, disability, etc. Employers have a legal obligation to prohibit and promptly correct unwelcome conduct or communication that could be regarded as harassment based on legally protected status including, for example, bullying behavior that denigrates or demeans individuals based on sex, race, national origin, color, religion, sexual orientation, age, disability, etc.
Employers meet these obligations in part by implementing and distributing a "harassment prevention" policy with specific examples of prohibited sexual and other unlawful behavior that sets forth an effective complaint procedure. Employers also should train supervisors, managers, and employees on harassment awareness and prevention.
When an employee reports bullying behavior that implicates protected-class status, the employer must ensure that a prompt, thorough, and impartial investigation is conducted. The investigator must be neutral and competent, have a thorough knowledge of harassment law, and interview the complaining party, the accused, witnesses, and others who may have relevant information.
Through the investigation, the employer must determine what happened and take prompt and appropriate corrective action. Usually this includes discipline of the offender proportionate to any bad behavior, correction of negative effects of the bad behavior, written responses to both the bad actor and the complaining party, and follow-up check-ins with the complaining party to ensure that no further bad behavior is occurring.
Harassment v. Bullying
In contrast, generic workplace bullying involves behaviors not covered by anti-discrimination and harassment laws because they do not implicate a protected-class status. Generic workplace bullying does not use discriminatory words or actions and does not single out individuals because of their sex, race, national origin, color, religion, sexual orientation, age, disability, etc. Instead, it is targeted at anyone or everyone, without regard to the target's status.
Behaviors that can fall within generic workplace bullying vary widely but typically include repeated speech or physical conduct that a reasonable person would find threatening, intimidating, or humiliating. A single act typically does not constitute generic workplace bullying, unless it is especially severe and egregious.
No Federal or State Statute Currently Prohibits Generic Workplace Bullying
No federal or state statute currently prohibits generic workplace bullying, but several states are considering such laws.
A grassroots effort in New York is attempting to have the state legislature enact "The Healthy Workplace Bill." The bill is described as "a model act to provide legal redress for targets of workplace bullying, abuse, and harassment, without regard to protected class status." The bill would make employers vicariously liable for "abusive conduct" in the workplace, including "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." The bill would allow employees to sue employers and obtain reinstatement, removal of the offending party from work, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney's fees.
Several other states have considered workplace bullying laws, including Oregon, Washington, and Oklahoma. None has passed.
Such legislation likely would generate increased employment litigation and costs to employers. Some worry that routine disputes or everyday disagreements could easily escalate into costly and disruptive lawsuits. Such legislation also could hinder management's ability to supervise and hold employees accountable without fear of legal action. It is the rare supervisor or manager who has not been accused of being a generic type of "bully" (employees typically use the word "harassment") after legitimately disciplining a poor performer or behavior problem.
Even without a state or federal statute specifically prohibiting generic workplace bullying, employees may seek recovery when they have been subjected to such behavior. One such available common law claim is "intentional infliction of emotional distress." In Minnesota, this claim allows employees to recover for intentional or reckless conduct that is extreme and outrageous and that has caused severe emotional distress. The legal requirements for "extreme and outrageous conduct" and "severe emotional distress" were established by the Minnesota Supreme Court in 1983 in Hubbard v. United Press Int'l. The high standards of proof set by the Court for this claim appropriately demonstrate that employers may not be held liable for every incident of bad behavior or employee emotional distress, as these can be highly subjective and easily alleged.
So What Should Employers Do?
Even without a federal or state statute prohibiting generic workplace bullying, employers cannot afford to ignore such behavior because of its negative effects on the work environment and productivity.
Just as employers need to implement harassment prevention policies, they also should adopt a general code of conduct. This would establish the company's commitment to a respectful workplace and encourage employees to report violations. But the policy should not include a promise of progressive disciplinary action, such as an oral or written warning or suspension, before termination. Employers should train managers and supervisors to recognize and appropriately address generic workplace bullying.
When an employee complains that any type of inappropriate behavior has occurred, employers should treat the complaint seriously. The employer should ask sufficient questions to determine whether the complaint involves an allegation of potentially unlawful harassment, which raises legal obligations for the employer, or instead involves generic bad behavior or bullying. Even if the complaint does not involve legally protected status such as sex or race, the employer still may need to thoroughly and impartially investigate to learn the facts and determine if corrective action is necessary. The employer should not, however, label the behavior as "harassment," "bullying," or otherwise. Any label could later be used against the company in a legal action. The employer should share complaint and investigation information only on a "need-to-know" basis to avoid potential defamation claims.
If an employee is engaging in bad behavior or bullying that harms the workplace, the employer should take action. This may include disciplinary action, up to and including termination, or remedial measures such as training to help the employee change the behavior. Unless the accuser is also found to have engaged in inappropriate behavior, the employer should not take any negative action against the accuser.
Employers with questions regarding how to address inappropriate workplace behavior - whether unlawful harassment or generic workplace bullying - should contact employment counsel.