Preventing workplace bullying: Start with training and a good policy

by Sue Woods

Generally, workplace bullying can be defined as repeated unreasonable actions directed toward an employee or a group of employees that are intended to intimidate, degrade, or humiliate. In some cases, workplace bullying may involve misuse or abuse of power by supervisors or managers. In other cases, it may involve a group of coworkers targeting another worker, which is frequently referred to as “mobbing.”

Legislative bills that propose to address workplace bullying often contain a more detailed definition of unacceptable conduct. For example, in California’s antibullying training law, “abusive conduct” is defined as the conduct of an employer or an employee, with malice, that a reasonable person would find hostile, offensive, and unrelated to the employer’s legitimate business interests. It could include verbal abuse, verbal or physical conduct that is intimidating, threatening, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. Proposed bills in other states have differing definitions of abusive workplace conduct.

Effects of workplace bullying

According to a 2011 survey by the Society for Human Resource Management (SHRM), 51 percent of responding organizations reported incidents of bullying in their workplaces. Twenty-seven percent of employees surveyed by the Workplace Bullying Institute in 2014 reported a current or past direct experience with abusive conduct at work. A 2006 study of U.S. workers found that 41.4 percent of respondents reported experiencing psychological aggression at work in the previous year. Those numbers are significant, indicating that workplace bullying is alive and well in U.S. companies.

Many thousands, if not millions, of U.S. employees are apparently feeling the potential mental and physical effects of bullying, which can include:

• Withdrawal from work and increased use of sick time;
• Sleep and digestive disturbances;
• Reduced self-esteem;
• Excessive or uncontrollable crying;
• Increased depression and stress;
• Anxiety or panic attacks;
• High blood pressure; and
• Post-traumatic stress disorder (PTSD).

The effects of workplace bullying are felt not just by the victims of the bullying but also by the organization itself. Some potential effects on your company may include:

• High employee turnover, resulting in increased recruiting, hiring, and training costs;
• Low productivity as workers lose motivation and take more breaks or sick time;
• Drain on the HR staff and supervisors having to deal with bullying incidents and lost productivity; and
• Bad publicity and damage to your reputation as word gets out that bullying takes place at your organization.

The negative effects of bullying result in a significant drain on an organization’s time, resources, and finances. But because it hasn’t been explicitly deemed “illegal,” companies have been slow to address workplace bullying.

Unlawful harassment vs. bullying

You may be thinking, “Wait, isn’t workplace harassment already illegal? Why do we need to address bullying separately?” It’s true that both federal and state employment laws prohibit harassment and subject employers to liability for failing to prevent, investigate, and remedy it in the workplace. However, at present, harassment is unlawful only if it’s based on the victim’s status as a member of a protected class. In other words, the individual must suffer harassment based on his race, gender, religion, age, or another protected characteristic.

Workplace bullying goes beyond unlawful harassment because it relates to abusive conduct that’s intimidating or humiliating but not based on a protected status. Think of the awkward, antisocial employee who is repeatedly taunted by the physically fit guys, who push him around, lock him in the storeroom, and make him the butt of humiliating jokes. Or perhaps the worker whose manager constantly and openly calls her “idiot,” “stupid,” “lazy a__,” and “worthless.” That type of bullying is not currently prohibited by law. But numerous initiatives to change that have been introduced.

State initiatives to prevent workplace bullying

For more than a decade, groups such as the Workplace Bullying Institute and the Healthy Workplace Campaign (HWC) have promoted efforts to address workplace bullying and convince state legislators to introduce bills making it unlawful. Over the years, 25 states have proposed legislation to address workplace bullying. While progress has been slow, the effort seems to be making some limited headway.

In 2009, Nevada became the 16th state to consider some version of an antibullying bill with an attempt to modify the state’s civil rights code to include abusive conduct as a type of prohibited employment practice. Introduced by then Assemblyman (now Senator) Tick Segerblom, a Democrat, the bill got some cosponsors but ultimately died in committee. Segerblom reintroduced the bill in 2011, but it again didn’t go anywhere.

In 2006, Hawaii passed a senate concurrent resolution urging Hawaii employers to develop and implement standards of conduct and policies for managers and employees to reduce workplace bullying and promote healthful and safe work environments. Although the resolution lacked any legal force, it was a first step for Hawaii’s legislature in emphasizing the importance of addressing bullying in the workplace.

More recently, laws requiring antibullying training have taken hold in a couple of states. As we’ve already mentioned, in 2014, California passed its law adding antibullying training to its mandated sexual harassment training for employers beginning this year. Just this March, Utah passed a similar training bill that applies only to state agencies (not private employers). Effective July 1, 2015, Utah’s “Workplace Abusive Conduct Amendments to Promote a Healthy Workplace” law mandates that state agency employees participate in training every other year to identify and prevent abusive conduct.

Washington state legislators have introduced numerous antibullying bills since 2004. Although none has passed yet, the Washington State Department of Labor & Industries publishes an eight-page document titled “Workplace Bullying and Disruptive Behavior: What Everyone Needs to Know,” which includes a sample workplace bullying policy.

Numerous other states have considered antibullying laws, but to date, none has passed a law prohibiting such workplace conduct or providing employees with a private right to sue because they are being bullied at work.

Other countries protect employees against bullying

The United States isn’t the first country to try to legislate workplace bullying. In fact, we are way behind some countries in offering workers protection from abusive conduct in the workplace.

According to the HWC, Sweden has had an antibullying law since 1994. Other countries, including England (1997), France (2001), Australia (2005), and Ireland (2007), have followed suit. Quebec passed such a law in 2004, and additional Canadian provinces enacted antibullying legislation in 2007, 2010, and 2011. In most cases, these laws are expressed as a matter of workplace safety and health.

Does OSH Act cover workplace bullying?

Because other countries deal with bullying as a matter of workplace safety and health, you might wonder whether the U.S. Occupational Safety and Health Act (OSH Act) already covers workplace bullying. In 2011, the Occupational Safety and Health Administration (OSHA) implemented an antibullying policy to cover its own employees, but the agency hasn’t otherwise set specific standards imposing a legal duty on employers to prohibit or respond to bullying.

Under the OSH Act’s General Duty Clause, employers have a duty to provide a workplace that is free from recognized hazards that are likely to cause serious physical harm or death to employees. We aren’t aware of any cases in which workers have attempted to allege a violation of the OSH Act based on bullying conduct, but it isn’t outside the realm of possibility.

Potential claims based on bullying

Despite the lack of explicit federal or state laws prohibiting abusive workplace conduct that isn’t based on a protected characteristic, employers should be aware that other types of claims could be raised as a result of bullying.

To the extent that an employee suffers a physical or mental injury or illness as a result of bullying at work, he could make a workers’ compensation claim. In addition, depending

on the nature of the bullying and the position/title of the bully, abusive conduct could support claims such as intentional infliction of emotional distress; intentional interference with an employment contract; negligent hiring, retention, or supervision; battery; and assault.

Tips to prevent workplace bullying

Even though your state may not have a law against workplace bullying yet, it’s a sound employment practice to take steps to prevent and address abusive conduct in your organization. Get beyond labeling behavior as legal or illegal, harassment or bullying. If potentially harmful unprofessional behavior is occurring at your place of business, you need to ask questions, conduct a thorough and timely investigation, and take steps to stop any misconduct.

To help your organization be proactive in preventing bullying, consider taking the following steps:

• Implement a stand-alone antibullying policy, or incorporate the subject of bullying into your antiharassment policy or code of conduct.
• Train all employees on your policy, including your zero tolerance for workplace bullying.
• Train supervisors and managers on how to recognize bullying and what to do if it occurs.
• Offer employees numerous avenues for reporting bullying and ways to get help, both internally and through an employee assistance program or outreach agency.
• Be inclusive so that all employees feel comfortable speaking up and participating in company projects and activities.
• Treat complaints of bullying behavior seriously, and launch a workplace investigation.

Workplace bullying is an ongoing problem that can affect your reputation and bottom line, so don’t wait for legislation or a lawsuit before enacting proactive measures to prevent it.

Sue Woods is an attorney with Holland & Hart LLP in the firm’s Denver, Colorado, office. She may be contacted at sbwoods@hollandhart.com.

• Colorado Employment Law Letter
  Excerpted from Colorado Employment Law Letter written by attorneys at the law firm of Holland & Hart LLP. COLORADO EMPLOYMENT LAW LETTER is intended only to inform, but not to provide legal advice, and recipients should seek professional advice with regard to specific applications of the information. Contact attorneys at Holland & Hart.