HR Management & Compliance, Learning & Development

Bullying in the Workplace: New Laws or Stronger Employer Policies?

Bullying in the workplace is an issue that 72 percent of Americans are aware of, according to a 2014 survey by the Workplace Bullying Institute. However, the institute believes not enough is being done to fight this problem because workplace bullying is not considered protected discrimination under federal employment law. So through its Healthy Workplace Campaign, the institute is lobbying to get its model “Healthy Workplace Bill” passed in U.S. state legislatures — 26 states have already introduced the bill and California’s governor signed a modified version into law on Sept. 9, 2014. The question is, though, aren’t employer policies sufficient to help fix the problem without the need for another law?

What Is Workplace Bullying?

WBI defines workplace bullying as: “repeated, health-harming mistreatment of one or more persons by one or more perpetrators” that includes “abusive conduct that is: threatening, humiliating or intimidating,” causes work interference or is considered verbal abuse.

Since the conduct is not fueled by protected characteristics, it cannot be considered discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 or the Americans with Disabilities Act. These laws only apply to those discriminated against because of age, disability, race, gender, national origin or religion. WBI claims the Healthy Workplace Bill would plug “the gaps in current state and federal civil rights protections” by not requiring plaintiffs to be members of these protected status groups.

However, one employer advocacy group believes a new law is unnecessary. Workplace bullying “can cause problems in the workplace around morale or productivity and should be prohibited through policies,” said Mike Aitken, vice president for government affairs for the Society for Human Resource Management. He added that many employers are already addressing workplace bullying “through education efforts, including anti-bullying and harassment policy language,” and that “encouraging training rather than creating a new civil rights statute,” is a better approach.

What Is the Healthy Workplace Bill?

Most people can’t get their hands on the actual language of the Healthy Workplace Bill — citing quality control as the reason, WBI only allows authorized “State Coordinators” to access that language in order to engage lobbyists and lawmakers. However, recently enacted legislation in California offers an example of the law’s provisions. The California law requires employers with 50 or more employees to provide at least two hours of training to all supervisory employees on preventing harassment, discrimination, retaliation and abusive conduct. Abusive conduct is defined as:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. Abusive conduct may include 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. A single act shall not constitute abusive conduct, unless especially severe and egregious.

WBI states on its website that it believes California’s new law is not enough to stop workplace bullying, as it does not encourage employers to act or face liability, relying solely on training.  A more comprehensive bill (S. 3863N) including both employer and employee liability was passed by the New York Senate Labor Committee on June 3, 2014. That bill will hold an employer vicariously liable for any violation committed by its employee, unless no adverse employment action was taken.

“People think if you pass a statute to prohibit activity, it solves the problem,” Aitken said. “It won’t curtail the bullying, but will open up an opportunity for lawsuits. In a lot of instances, the bullying activity is grounded in already prohibited discrimination.”

Laws Around the World

Workplace bullying legislation has been enacted in countries around the world, beginning with Sweden in 1994 and followed by Britain in 1997. France, Australia, Ireland and Canada adopted anti-bullying legislation within the first 10 years of the 21st century. Is the United States behind the curve? Aitken doesn’t think so, citing that our disability and discrimination statues are advanced, providing protection against most abusive conduct and reinforcing the need for employer policies.

SHRM believes that rather than passing laws, employers should adopt education efforts to learn how to prevent and deal with disruptive behavior that “distracts from a respectful workplace or effects morale,” said Aitken. Employers should be clear that “harassment behavior, whether protected or not, is unacceptable.” SHRM has partnered with a variety of groups to attempt to encourage employers to take a “proactive approach to preventing bullying in the workplace through educational efforts and workplace policies,” he added.

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