The workplace case for providing anti-bullying training
Studies suggest that schoolyard bullies often become nasty co-workers or tyrannical bosses. Almost every state has laws addressing bullying in schools. Yet, no state has passed a law that outright bans bullying at work. Only California has come close.
Bullying in any setting causes stress to its victims and those who witness it. Co-worker and management bullying increases absenteeism and employee turnover, hurts companies’ reputations and makes it difficult to hire good talent.
If having a great place to work is not enough reason to address bullying, a recent study indicated that organizations led by bully bosses are dramatically less successful than those led by positive and respectful leaders. Innovation and profitability appear to be positively influenced when employees feel valued.
Where to draw the line
Bullying makes it more likely that an employer will get sued. And, it seems that the days are probably numbered when employers can defend against a lawsuit by arguing that the boss didn’t break the law, but is just a difficult person. The “he’s an equal opportunity jerk” argument often leads to costly, lengthy litigation.
Even employers willing to address bullying face the challenge of drawing the line between conduct that is bad for business and conduct that should be prohibited, either by policy or law.
Policies and laws generally define bullying as hostile, aggressive or unreasonable behavior directed at an individual for an improper purpose such as humiliation, exclusion or intimidation. This can be an unwieldy standard.
When does friendly workplace joking cross the line? How can a manager accomplish one of the most important functions of the job—honestly communicating dissatisfaction with an employee’s conduct or performance—without running the risk of being called a bully?
Often, the definition of workplace bullying includes making an employee’s work difficult, withholding resources to do the job or placing excessive demands on an employee. Almost every employee has experienced situations where work is too challenging and they are asked to do more with less. Should stress be enough to claim bullying?
Those who advocate that bullying laws are unnecessary sometimes point out that most behavior that is egregious enough to meet a standard definition of bullying is likely unlawful anyway.
Bullying behavior related to an employee’s gender, race, ethnicity, national origin, religion, age, sexual orientation and disabilities will almost certainly fit under a federal or state anti-discrimination or anti-harassment law. Physical threats and touching could constitute assault or battery. Conduct so malicious, intrusive and demeaning that it causes emotional harm may be addressed by laws on defamation, invasion of privacy and infliction of emotional distress.
Best practices from California
The difficulty in defining bullying and making a meaningful distinction between bullying and a demanding workplace may well be why anti-bullying workplace laws have not been passed.
It is probably why even in a progressive state like California—the only one to try to legislatively address workplace bullying—the response has been merely to require training.
For years, California has mandated sexual harassment training and education for all supervisors every two years. Beginning in 2015, employers with 50 or more employees were also required to address abusive conduct.
“Abusive conduct” is action taken by a manager or co-worker in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. Under the California law, 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
- The gratuitous sabotaging or undermining of a person’s work performance.
The law specifically provides that a single act is not abusive conduct, unless especially severe and egregious.
What employers can do
Policies that address bullying can be helpful. It is important, however, that these policies are clearly distinct from the company’s policies addressing unlawful discrimination and harassment.
Any bullying policy should be drafted carefully so the employer does not take on responsibilities not imposed by law.
Taking a cue from California, training should be a key component to avoiding the dangers caused by workplace bullying.
Supervisors should be trained on how to communicate and manage performance in a direct and constructive manner. HR should be empowered to address conduct that is not just unlawful, but that undervalues or undermines employee morale. Just as important, employees must have multiple constructive avenues through which to air their grievances without fear that they will be shut down or suffer retaliation.
Shirley Lerner and Kerry Middleton advise clients out of Littler Mendelson’s Minneapolis office. Contact Shirley at email@example.com and Kerry at firstname.lastname@example.org.