(Published March 30, 2009)
A couple of weeks ago, my highly esteemed manager, Gloria, wrote a Soapbox article on why anti-bullying laws are not a realistic remedy for workplace bullying. Comments poured in, some agreeing with her argument and others disagreeing. I respectfully disagree.
I'm not saying anti-bullying laws are an ideal workplace remedy — but in an ideal world, we wouldn't need any legislation at all to tell us how to treat each other, since we'd all be on our best behavior 100% of the time.
But it's better than what we currently have — practically no legal protections at all unless the bullying happens to be based on a protected characteristic.
Tort law (suing the bully for intentional infliction of emotional distress) sets the standard so high that it's very difficult for a plaintiff to make a case; so workplace bullies lumber on, undeterred and unafraid.
Several states have tried and failed many times over the years to pass anti-bullying legislation…and, God love 'em, they keep on trying. For example, the legislature in New Jersey, where I live and work, is currently considering the "Healthy Workplace Act," which would make it an unlawful employment practice for an employer to subject an employee to abusive conduct or to permit an abusive work environment.
The bill defines "abusive conduct" as "the malicious conduct of an employer or employee in the workplace that a reasonable person would find hostile, offensive, or unrelated to an employer's legitimate business interest." Examples 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." It notes that a single act wouldn't be considered abusive conduct "unless it is especially severe and egregious."
The bill also defines "abusive work environment" as "a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee." The bill even provides the employer with an affirmative defense if the employer can show that it exercised reasonable care to prevent and promptly correct the abusive conduct.
Those definitions seem clear enough to me (well, at least as clear as any employment law bill reads)! And I'm sure they'd be clear enough for a judge and jury to utilize responsibly, too.
Passing anti-bullying legislation such as NJ's bill could ultimately benefit employers by:
- raising employee morale and employee retention rates.
- leading to a decrease in Workers' Comp claims for psychological harm. Note: The Healthy Workplace Act says that if an employee elects to receive Workers' Comp in connection with the abusive workplace conduct, then they will not be permitted to recover damages under a separate legal action.
- making it easier to get rid of "bad eggs." Yes, employment-at-will allows you to fire employees for no cause, but many employers are afraid to do so out of fear of inviting a wrongful termination lawsuit. This would give you clear-cut just cause to fire that workplace bully that you've been itching to get rid of for years.
- making it easier to guide new managers in what constitutes best management practices and what constitutes bullying.
Research has shown that there is a trickle-down effect in many workplaces: When upper-level managers bully middle managers, they in turn are likely to bully front-line supervisors, who turn around and bully rank-and-file employees, who turn on and bully each other. I've seen this waterfall of bullying in action before — it wasn't pretty. The supervisors end up hating themselves for becoming what they always hated in their own bosses; the weak employees end up getting trampled on; and the strong employees leave en masse to seek a healthier work environment elsewhere.
Any way you look at it, bullying creates a toxic work environment, and it should be banned, if not by law, then by company policy. Does your organization have a policy mandating civil treatment to everyone by everyone? It should, in my humble opinion. No good manager will be rendered inefficient if he or she is suddenly prohibited from raising his voice in anger or swearing in frustration. If they balk, I'd tell these managers what I'd tell four-year-olds throwing a temper tantrum: "Use your words!" An aptly chosen word or phrase can make your point far better than loud voices and profanity, which employees just tune out anyway.
Eileen Mager
Writer
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