Special from SHRM’s Legal and Legislative Conference
It’s true that there are no anti-bullying laws in the US, but that doesn’t mean that bullying can’t be the basis of a lawsuit, says attorney Allison West SPHR.
West, who is principal, Employee Practices Specialists in Pacifica, CA delivered her suggestions for dealing with bullying in the workplace at the SHRM Employment Law and Legislative Conference, going on this week in Washington. DC.
Brenda Boss Shows the Myth of No Anti-Bullying Laws
West offers Brenda Boss as the example of how lawsuits spring up around bullying.
Brenda boss:
- Pushed and shoved Emma Employee (assault and battery, potential OSHA violation),
- Locked her in the conference room (false imprisonment),
- Spread rumors about her performance (defamation),
- Deliberately left Emma’s written performance warning on the common area copier (invasion of privacy)
- Continuously yells at Emma in department–‐wide meetings, in the hallway and on the phone (intentional affliction of emotional stress).
So … Emma went to see Henry HR, and …
- Claimed she was suffering from a psychiatric injury from her bullying boss (workers’ compensation and FMLA),
- Requested an accommodation (ADA)
- Showed Henry evidence that Brenda changed her time sheets and is owed overtime for the past 18 months (FLSA/state wage and hour violations and penalties!)
And then … Emma said
- She informed Brenda she was pregnant and was told she would not get a promotion because she is “a breeder” (gender and pregnancy discrimination)
- After she complained in the company newsletter about her denial of promotion
- Brenda changed her work hours,
- Overtime was denied,
- She was excluded from training and
- She was the only one in the department who didn’t receive a bonus (retaliation)
Finally … Emma whimpered that
- She can no longer sleep
- She has stomach ailments
- She is now addicted to anti-depressants (more intentional infliction of emotional distress)
- Therefore she feels she has no choice but to resign (constructive discharge)
Don’t wait for laws to be passed to deal with bullying behavior.
How Management Rationalizes Bullying Behavior
Here are some typical responses from managers who receive complaints about bullying:
- Oh, that’s just Joe.
- You know how Betty is.
- If I ignore it, maybe it’ll go away.
- We’ve lived with it this long, we can tolerate it a bit longer.
- I have to think about the bottom line, don’t I?
- I’ll deal with it when the behavior really gets out of line.
- But, Joe/Betty are such good performers!
- I tried to get them to stop … but they just wouldn’t.
Bullying Is
Repeated, health‐harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:
- Verbal abuse
- Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating
- Work interference—sabotage–which prevents work from getting done.
Source: The Workplace Bullying Institute WBI, 360.656.6630
Bullying Isn’t
- Legitimate authority to control work and performance
- Providing constructive feedback
- Political correctness
- Setting reasonable goals
Fortunately, says West, managing employees isn’t bullying.
Can bullying be considered as creating an hostile work environment?
I would like to see more on subtle bullying between employees and managers who do nothing about it. Doesn’t have to be so obvious as the example above. We’ve got a custodian who pick and chooses which work he will complete and who he will do it for. To the boss, he can say he just needs more people. These are people who “slow” their work in order to “secure” their position. Or spreading rumors to other employees… etc.