By Rachael Zichella

Mirroring legislative and regulatory measures in Europe, Canada, and elsewhere, U.S. States have begun to consider legislation to address “workplace bullying.”

According to a 2007 poll released by the Employment Law Alliance (“ELA”), 44% of American workers feel they have worked for a supervisor or employer whom they considered abusive. The poll, which was conducted by the Philadelphia-based Reed Group, and surveyed 1,000 workers, also indicates that:

• 55% reported being yelled at by a boss or witnessed a boss yelling at a co-worker;
• 50% were personally insulted or witnessed a boss personally insult co-workers,
• 45% were demeaned or embarrassed in person or over e-mail or witnessed a co-worker being demeaned or embarrassed by a boss in person or over e-mail;
• 40% were the target of rumor-spreading or the sharing of confidential information or witnessed such behavior,
• 17% endured or witnessed inappropriate physical contact, and
• 11% were physically threatened or witnessed a physical threat made against a co-worker.

According to the ELA poll, educated workers (those with some college or a college degree) are more likely to have been a victim of abuse by their presumably well-educated supervisors or employers (47% responded that they’d been the target of abuse) than their less-educated counterparts (34%).

Research also shows that employees are not the only ones who suffer at the hands of a bullying boss – companies get hurt, too. High turnover, excessive absenteeism, low productivity and the increased cost of health care for stress-related disorders or ailments in affected employees can eat away at a company’s bottom line.

What is bullying?

There does not appear to be a commonl definition of workplace bullying. The late Tim Field wrote on the U.K. website Bully OnLine:

Bullying is persistent unwelcome behaviour, mostly using unwarranted or invalid criticism, nit-picking, fault-finding, also exclusion, isolation, being singled out and treated differently, being shouted at, humiliated, excessive monitoring, having verbal and written warnings imposed, and much more.

Model legislation proposed in some U.S. states suggests this definition:

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.

According to the Canada Safety Council:

A workplace bully subjects the target to unjustified criticism and trivial fault-finding. In addition, he or she humiliates the target, especially in front of others, and ignores, overrules, isolates and excludes the target. . . . Regardless of specific tactics, the intimidation is driven by the bully's need to control others.

A European Union Framework Agreement uses the terms “harassment and violence” to describe workplace bullying. It defines those terms thusly:

Harassment occurs when one or more worker or manager are repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work.

Violence occurs when one or more worker or manager are assaulted in circumstances relating to work.

Harassment and violence may be carried out by one or more managers or workers, with the purpose or effect of violating a manager’s or worker’s dignity, affecting his/her health and/or creating a hostile work environment

Blowing the Whistle on Bullies

While U.S. courts have interpreted such federal laws such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act to prohibit harassment on the basis of protected characteristics such as race, sex, religion, color, national origin, disability and age (and in the case of some state laws and city ordinances, sexual orientation), to date, there is no law in the United States that prevents generalized bullying – being mean just for the sake of being mean -- in the workplace. It is well-established that federal law was not designed to insulate every person from the trials and tribulations of life. The Supreme Court has explained that Title VII is not a “general civility code.” See Oncale v. Sundowner Offshore Servs¸ Inc., 523 U.S. 75, 81 (1998). Thus, under current law, it is not illegal for someone to “harass” others in the workplace as long as the “harassment” is not tied to a legally protected characteristic such as age, race, etc., or does not otherwise constitute a tortious act. Ironically, some Psychologists assert that workplace bullying is three times more common than sexual harassment. Gary Namie, Ph.D. & Ruth Namie, Ph.D., Workplace Bullying: How to Address America’s Silent Epidemic, 8 Emp. Rts. & Emp. Pol’y J. 315, 326 (2004).

Anti-bullying legislation seeks to do exactly what courts have found current employment laws do not – impose some form of generalized “civility code” upon the American workplace. Although legislatures have not enacted one piece of anti-bullying legislation, there is growing support for laws devoted to ending bullying. The Workplace Bullying Institute (“WBI”), headed by Dr. Gary Namie, has lobbied state legislatures to introduce its “Healthy Workplace Bill.”

In 2003, California became the first U.S. state to consider the legislation (AB 1582). Since 2003, twelve other states -- Oklahoma, Hawaii, Washington, Oregon, Massachusetts, Missouri, Kansas, New York, New Jersey, Montana, Connecticut, and Vermont -- have introduced twenty-nine versions of the bill to ban bullying in the workplace. Bills are currently pending in New York (S 2715); New Jersey (A3590); Washington (house bill 2142); and Vermont (H 548).

The California Healthy Workplace Bill would have amended the California Fair Employment and Housing Act (“FEHA”), which prohibits discrimination on the basis of enumerated characteristics such as age, gender, race, etc., to make it an unlawful employment practice to “subject an employee to an abusive work environment.” The bill defines an “abusive work environment” as “a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.” The bill failed, and has not been reintroduced. The full text of the bill is online HERE.

Bullying Abroad

Anti-bullying legislation has found success in other nations, however. In 2004, the Quebec Labor Standards Act, which prohibits psychological harassment in the workplace, went into effect to prohibit “vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.” Under the Act, a single episode of vexatious behavior could constitute psychological harassment if it has a “lasting, harmful effect” on the employee. Employers must take “reasonable steps” to prevent the harassment, and once it is known, “put a stop to it.”

On April 26^, 2007, the EU’s “social partnership organizations” (the European Trade Union Confederation in collaboration with the Council of European Professional and Managerial Staff/ European Confederation of Executives and Managerial Staff liaison committee; BusinessEurope; the European Association of Craft, Small and Medium-Sized Enterprises; and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest) signed what is called a “framework agreement” regarding workplace violence and harassment at work. The framework agreement calls for businesses to train managers and workers to reduce incidences of harassment and violence in the workplace, to draft policies explaining that harassment and violence will not be tolerated, and to set out procedures by which investigation into complaints or incidences of violence and harassment will be conducted. The agreement also contains suggested procedures for investigation and management of complaints.

The framework agreement, which sets guidelines for the enactment of legislation by member states, sets a target date for the EU’s member organizations to comply with the framework agreement’s objectives by April of 2010. As a procedural matter, each member state should seek to comply with the agreement in a manner consistent with their own industrial relations systems. In the United Kingdom, a Code of Conduct in line with the framework agreement will likely be introduced by one of the government agencies responsible for providing guidance to employers. While Codes of Conduct in the UK, like enforcement letters or regulations promulgated by the Equal Employment Opportunity Commission in the United States, lack the force of law, they are commonly afforded deference by courts and tribunals.

The EU’s framework agreement broadly defines workplace harassment and violence. In fact, per the agreement, harassment occurs when “one or more worker or manager are repeatedly and deliberately abused, threatened, and or humiliated in circumstances relating to work.” On its face, the definition of harassment is broad enough to include instances of abuse, threats, and humiliation that occur outside the workplace or may have a rather tenuous connection to work, within the definition of workplace harassment. Nevertheless, because each EU member state will draft its own legislation or otherwise enforce the agreement through its administrative agencies, the definition of harassment and what constitutes “appropriate action for perpetrators” of workplace harassment and violence will invariably differ among member states.

Stopping Bullying Before It Starts

Like its European social partners, the Canadian Safety Council suggests that employers establish anti-bullying policies in their employee handbooks that identify bullying as “unacceptable behavior.” As with other forms of harassment, an ounce of prevention may well be worth a pound of cure.

Other Resources:

Canada Safety Counsel: Bullying in the Workplace

European Social Dialogue: Framework Agreement on Harassment and Violence at Work

Wikipedia: Workplace Bullying

Seth Borden: Workplace Bullying: Unlawful or Simply Bad Form?

AFL-CIO blog: Bully for You? Not if Your Boss Is One

The HR Capitalist: Why Companies Keep Jerks Around

Time.com blog: In Defense of Office A**holes

Robert I. Sutton, The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't

Bully Busters

Bully OnLine

Mobbing-U.S.A.

Work Doctor

Workplace Bullying Institute