HR Soapbox Blog

Why Anti-Bullying Laws Aren't Realistic

(Published March 16, 2009)

"The Dark Knight" really is kind of dark, isn't he? Christian Bale, the most recent actor to fill Batman's cod piece on the silver screen, has also become known for his hot temper. Last year, he was arrested on a domestic violence charge involving his mother and sister, which was later dropped due to lack of evidence. Earlier this year, he was caught on tape screaming vulgarities and threatening the job of the director of photography (DP) who walked into his field of vision while shooting a scene. Is Bale the only person to ever go off on a co-worker? Of course not. He just happens to be famous…and it was caught on tape. That would be great evidence if the DP wanted to take Bale, or the production company, to court. But what could he take them to court for? Proponents of anti-bullying laws would argue that this is a classic case of bullying in the workplace, but there are no anti-bullying laws on the books.

Anti-discrimination laws are often explained in terms of what they are not. They are not codes of civility; they do not guarantee a Utopian workplace. In other words, being a jerk is not illegal. There are those who think that it should be and support state action on creating anti-bullying laws.

In theory, it sounds like a good idea. Why should behavior that would be illegal if it were based on a protected characteristic have to be accepted by another just because a protected characteristic is not involved?

In practice, though, it sounds like an impossible idea. Determining what is illegal harassment is not cut and dried, so how easy will it be to determine what is illegal bullying? A quick scan of blogs related to Bale's incident with the DP shows just how diverse opinions are. Some thought the DP deserved to be chewed out for messing up and defended Bale for taking his work so seriously; others declared that no one ever deserves to be treated that way. Some advised on a better way Bale could have handled the situation; others claimed they would have reacted harshly also.

Who would determine what's mean, too mean, or not mean enough under anti-bullying legislation? Of course, hostility is subjective. The manager reprimanding an employee would think they're just doing their job; the employee would likely complain that the manager was being a jerk.

Could we create a "reasonable person" standard? I'm sure the kids who grew up being told they can do no wrong, where everyone made the team and no one got cut, who got a gold star or trophy just for participating would consider what's reasonable treatment by a manager to be different than what someone who survived boot camp would consider reasonable.

Is yelling over the top? How about raising my voice? Or using a sharp tone? Or would managers be forced to express their displeasure in a low, gentle monotone? "Now, Joe, I am disappointed that you operated the large, dangerous piece of equipment without following safety protocols and almost took Bob's fingers off…" You know how well that works on misbehaving children. Or dogs. It doesn't. It was the tone of my mother's voice that let me know she meant business!

On the opposite end of the behavioral spectrum, I often see questions on message boards from employees who claim they are being "harassed" because they're getting the cold shoulder, or the silent treatment, from a co-worker. Unless the one giving the cold shoulder is withholding work-related information or otherwise preventing the employee from getting their job done, why should they be forced to talk to someone that they don't like? Don't get me wrong, I do think that anyone who gives the silent treatment and can't even muster a simple hello in passing (it doesn't even have to be an enthusiastic hello, at that!) is rude and immature, and needs to get over themselves. But should that be illegal? Definitely not!

Bullied employees who do not qualify for protection under anti-discrimination laws are not completely without legal recourse. They may be able to file a claim for assault or the intentional infliction of emotional distress. Otherwise, the best protection is an employer that understands that allowing a bully to run rampant in the workplace will drive away the best talent.

Gloria Ju
Editor in Chief

Posted by Editorial at 3/13/2009 12:02 PM

Unless there is a law against bullying and mobbing, employers won't do anything to tackle workplace bullying because they don't have to.
Posted by: Leo at 3/17/2009 1:01 PM

If getting the silent treatment were bulling, the senior management around here would all be locked up. Not a return hello? How could they? Who cares? It is just rude.
Posted by: Tracy at 3/17/2009 1:59 PM

I've seen far to much Bully behavior in the workplace both in private and public sector employment to realize that this is an issue that isn't going to go away. stron Unions are a deterent to some of this but for those not protected by a union the only venue available is thru the law. This is happening now in several Canadian Provinces and guess what, it helps. Bad bosses need to be put on notice that their behavior is not just rude, it is unaccepable and if continued it does have consequences beyond the workplace.
Posted by: Mike Nelson at 3/18/2009 11:10 AM

Despite intentions to the contrary, "protection under anti-discrimination laws" is nice theory, but rare practice. In reality, the individual who is "protected" must essentially attempt to buy that protection from very expensive lawyers and from a judicial system that has a loophole for every law. And forget the EEOC. They do not "investigate" most complaints. What they do is simply await a rebuttal from the defendant, accept it at face value, close the case and issue a "right to sue" letter. That's a first-hand experience, and a little internet research on the EEOC will confirm that mine was not at all an isolated experience. A law against "bullying" would not be necessary if companies (I worked for city government)would actually enforce the laws and policies already in place. But they don't. As I was told by Human Resources (on audio tape!), "They don't attempt to actually solve these issues because they know that you will just have to get a lawyer if you want to pursue it." With the EEOC being a travesty, the loopholes abundant, and the utterly prohibitive cost to the average individual of pursuing redress in court, what motivation is there for any company to truly address bullying? One would think that common human decency would suffice as a motivator, but it does not. Expediency is the name of the game - not decency.
Posted by: Cindy at 3/18/2009 11:38 AM

I have employees who complain of harassment when they are told by managers that they must do work processes in a different way. If they don't like it and they don't want to do it, then the manager is "harassing or bullying" them. I just had a grievance filed last week by an employee who felt she was "interrogated" because the manager asked too many questions of why things had been done a certain way. The employee didn't like her tone of voice, she didn't like having to give the new supervisor a schedule of where she's going to be during the work week, etc. That's the problem with good, well run companies. Those employees with a "union mentality" don't want to be told anything....they want to work autonomiously with no accountability. Unions purposely undermine a decent work ethic. If we have a true bullying situation, we deal with it -- we don't condone or allow such type of behavior. Those situations have been extremely rare...but were investigated and addressed promptly and accordingly. I believe most companies deal with these situations also. I don't deny there may be some rogue instances, but overall, employers are responsible and take action when warranted. I am just sick of Unions being sold as the way to go. They had a purpose decades ago, but employment laws are now in place to protect the workforce. Unions have been the downfall of the American workforce. Anti-bullying legislation would be a nightmare to decipher and would just deepen the pockets of attorneys.
Posted by: Debbie at 3/18/2009 11:52 AM

Maybe the EEOC doesn't and won't get involved because it isn't classified under Title VII, however bullying is an intentional tort. Look up the case of Raess v. Doescher, Indiana supreme court, 4 to 1 verdict in which "intentional" infliction of emotional distress awarded employee $325,000. It has now just set case law. I don't see it going away, but actually moving forward even if it is not covered now by the EEOC.
An intentional tort is one in which a person intends to bring about a particular consequence or knows with substantial certainty that a result will occur.
Posted by: kim at 3/18/2009 5:22 PM

To Debbie, as we've seen thru the recent and continuing financial crisis, Unions are more important than ever. Must be a reason why over 60% of American workers would prefer to be represented by a union if there was a level playing field. Unions DO NOT undermine a decent work ethic. The work ethic issues that I have seen have been fostered by incompetent and lazy managers who do not know how to or are unable to train and/or discipline employees in a fair manner. Our employment laws are a sham; gutted in the enforcement process over the last 25 years. EEOC , the National Labor Relations board and other federal agencies have become a joke (Note Cindy's comments above). A Bully is a Bully and as such should not be tollerated in the work place. There needs to be effective avenues to deal with this and expecting the employer to be the enforcer of this without legal process is worse than having no law at all.
Posted by: Mike Nelson at 3/18/2009 5:37 PM

An employee says they are bullied because the boss is rude? or demanding? Being as "a**hat" isn't illegal, and never should be. We don't have the "right" to be treated civilly, we have a right not to be sexually coerced, not discriminated against because of a protected characteristic, and to receive a fair dollar for honest work. We don't have the right to work for only "nice people". That reaches far beyond "too subjective for interpretation". My bully is your effective manager. And bootcamp taught me to get it done, complain later, and if I don't like it, find someone else to work for... I wasn't guaranteed the job.
Posted by: Tammy at 3/18/2009 11:47 PM

Kim: My point was NOT that the EEOC won't get involved with situations alleging "bullying." My point was that they do not legitimately "get involved" in most cases involving violations of Title VII. Mine was an ADA case - not a "bullying" complaint. My point was that "protected classes" are not protected.
Posted by: Cindy at 3/19/2009 11:37 AM

Tammy: I think you're absolutely right: "civility" is not a "right" - in the military. And there are necessary reasons for that. But the whole world is not "bootcamp," and "civil society" does, in fact, require civility. It may not be our "right," but it is our necessity. Look around you.
Posted by: Cindy at 3/19/2009 12:30 PM

Cindy: Not sure what state you live in. I'm in AZ a redneck state to begin with. From what I see the EEOC will take just about any case, send out a letter and if the employer says what they want to hear, the case is dropped an a right to sue letter is sent out. Why bother with the EEOC to begin with. I have actually a couple issues that I could file a claim against based on gender and age, but I would go to an employment lawyer not the EEOC. The bullying case was also done through an employment lawyer. Usually they wont go after anything if you don't have a solid case.
Posted by: Kim at 3/19/2009 1:21 PM

We are a medium sized, family owned company. We have a company policy that basically states that the company expects all employees to treat all other employees with kindness and respect. In other words, you don't have to like them, want to socialize with them or ask them to be your kids' godparent. Just kindness and respect. Through the years, outside of a few employees who couldn't get along with anyone (and who inevitably had many other performance issues) the policy has worked.
Posted by: Myra( Visit ) at 3/19/2009 4:32 PM

Hi, Kim. I live in the Midwest. I agree completely with your sentiments about EEOC and your plan of action regarding an employment attorney. In fact, that was my plan of action as well (the case was settled outside of court). However, in order to sue under federal employment laws, you HAVE to go through the EEOC first. Truly, in most cases, it is a bloated, exasperating middle step - but one that federal law mandates before a lawsuit can be filed.
Posted by: Cindy at 3/20/2009 1:04 PM

Hi, Myra. I very much like your company policy. The place where I worked had the same exact policy. Where the policy really gets tested is when "mobbing" (group bullying) occurs. In my case, despite a disability, I so out-performed my coworkers that the main goal of their working hours became to destroy me. This went on for five (5) years. In the end, my employer chose to do the expedient thing, not the right thing. It was simply easier to get rid of one of me than it was to get rid of three of them. As I said in my original post, a policy is only as good as the enforcement of it. And employers who lack integrity will always choose expediency over decency and policy - just because they can.
Posted by: Cindy at 3/20/2009 1:24 PM

Bullying (by supervisors) is very alive and thriving throughout many companies. You don't have to be nice, say hello, etc. Bullies gang up on, single out, gossip, spread lies, (create mobs) and so on (to justify themselves I suppose). I see it every day. There is a person I know who actually made one of his employees fix a sign to his chest saying "I'm sorry" to his fellow workers because he called in sick one day. This same person was quickly placed in a not-so-hot position after this "inconvenience" as well. I'll be danged if ANYONE would EVER tape a thing on me.
Posted by: Seentomuch at 4/1/2009 12:07 PM

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Why Anti-Bullying Laws Aren't Realistic