HR Management & Compliance

Workplace Antibullying Legislation: Friend or Foe?

By BLR Senior Editor Chris Ceplenski
Just My E-pinion

Workplace bullying is the hot new area for HR managers, and antibullying legislation is in the air. Does it make sense? Can you fight bullying? A BLR senior editor tackles these questions and more., the website for the National Coordinators of U.S. State Legislative Initiatives to Stop Workplace Bullying, notes that 13 states have now introduced (some more than once) antibullying legislation since 2003. In 2007 alone, eight states introduced such bills, which would hold employers accountable (“vicariously liable”) for workplace bullying.

These bills generally prohibit employers from subjecting an employee to an abusive work environment. As an example, Washington State’s proposed antibullying legislation defines an “abusive work environment” as one in which “an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.” Abusive conduct “may include, but is not limited to, 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.”

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The Workplace Bullying Institute believes that the critical defining characteristic of workplace bullying is that it harms the health of the targeted individual.

The Institute maintains that health endangerment distinguishes bullying from routine office politics, teasing, roughhousing, prickliness, incivility, and boorishness. It contends that bullying can cause high blood pressure, digestive problems, and loss of sleep, as well as stress-related health diseases, such as general anxiety disorder, clinical depression, and post-traumatic stress disorder.

What recourse do bullied employees have? Generally, none. While federal (and most state) fair employment laws prohibit practices that discriminate on the basis of age, race, color, gender, national origin, religion, and disability, there is little recourse for an individual who endures abusive treatment unrelated to one of these protected characteristics. While employees can bring employers to court claiming intentional infliction of emotional distress, such “generic” cases of workplace abuse rarely result in liability for employers.

So, is antibullying legislation a good thing? As an editor with a primary audience of HR professionals and employers, I probably should argue that these laws would open up floodgates of litigation; that the definition of “abuse” used in such laws is too broad and will allow for too many frivolous claims; and that hypersensitive employees who don’t like being criticized by their supervisor will cry “bully.” will tell you what’s being paid right in your state for hundreds of jobs. Try it free and get a free special report. Read more

However, over my years of researching and writing about employment law cases, I’ve written too often about individual employees who endured unfathomable emotional abuse at the workplace–while HR professionals and employers who knew about the situation did nothing.

Failing at Our Jobs

HR professionals who are aware of bullying and allow it to continue are failing at more than just their job. They are failing the employees who suffer the psychological and physical effects of such abuse.

Will there be frivolous lawsuits if antibullying legislation is enacted? Sure. No one can stop an employee from bringing a baseless lawsuit. But that does not mean that employers and HR professionals should be spared the responsibility of training managers and supervisors not to engage in behavior that leads to a hostile and unproductive workplace—which, in my opinion, is marked by the type of conduct these antibullying bills seek to prohibit.

Furthermore, the bills offer an affirmative defense, similar to the one provided by the Supreme Court regarding sexual harassment.

That is, an employer could probably avoid liability if it could show that it “exercised reasonable care to prevent and to promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.” What it comes down to is this: As long as employers do the right thing, they can avoid liability.

Finally, do you really want supervisors and managers working for you who mistreat your talented employees? Don’t you want a workplace free from abuse, particularly if it creates a happier, healthier—and ultimately more productive—workforce? I think the proposed antibullying laws create a trade-off that benefits employees and employers alike. And that’s my e-pinion. What’s yours?

Will antibullying legislation work?