How to handle bullying in the workplace and avoid liability Featured

8:01pm EDT April 30, 2011
How to handle bullying in the workplace and avoid liability

When most people think of bullying, their minds drift to schoolyard battles long past. However, bullying in the workplace is a real problem that can make your employees feel as awful as those teenagers getting slammed into lockers. If you allow bullying to occur in your company, it can destroy your company’s culture as well as employee morale.

“A bullied employee is not a happy employee,” says Craig W. Snethen, attorney at law with Jackson Lewis LLP.

Legislation has been introduced in some states that would make it unlawful to subject an employee to an abusive work environment. For instance, if an employee resigns and claims that he or she was constructively discharged due to an intolerably abusive working environment, evidence of bullying can help support the employee’s claim.

Smart Business spoke with Snethen about how employers can curb bullying in the workplace and some of the potential liabilities involved.

What is considered bullying in the workplace?

Bullying has been defined as a systematic campaign of interpersonal destruction that jeopardizes a target’s health and/or career. It’s not mere incivility or rudeness. Bullying is a non-physical, non-homicidal form of violence.

Behaviors that may count as bullying, if they occur repeatedly for more than six months, include: (1) giving the ‘silent treatment;’ (2) refusal of requests for assistance; (3) receiving little or no feedback on performance; (4) subjection to pranks; (5) taking/destroying resources needed by the target to perform his/her job; and/or (6) the target doesn’t get praise to which he or she is entitled.

Why should employers be concerned about bullying in the workplace?

Generally, employers are and should be concerned about harassment and discrimination in the workplace. To be illegal and actionable in court, harassment or discrimination must violate the target’s civil rights. Therefore, the target must be in a ‘protected status’ group, such as race, gender, ethnicity, religion, national origin, age, disability, or sexual orientation.

By contrast, bullying is much broader than harassment or discrimination. Indeed, only 20 percent of bullying cases could potentially qualify as discrimination. In other words, bullying is ‘status blind.’ From a purely practical standpoint, however, a bullied employee is not a happy employee. Irrespective of whether the employee might have an actionable claim of harassment or discrimination, the employee may act out against the bullying in other ways, such as engaging in workplace violence and/or sabotage.

What are the legal dangers of allowing bullying in the workplace?

Currently, there are no laws in the United States that prohibit bullying. However, each time bullying laws are proposed, legislators become more sensitive to the issue and future legislation becomes more likely. When one state passes legislation, it’s going to make the argument all the stronger. In New York, for instance, proposed legislation has been introduced in the House that would make it unlawful to subject an employee to an abusive work environment (S 1823 § 762). The legislation would create civil liability for employers for the existence of an abusive workplace (S 1823 § 763).

Bullying heightens the likelihood that an employee may resign and claim that he or she was constructively discharged due to an intolerably abusive working environment. So, if the employee can articulate a harassment or discrimination claim based on some protected characteristic, the presence of bullying can enhance an employee’s evidence in support of such a claim.  Further, bullying can form the basis of common law claims such as intentional infliction of emotional distress, assault, battery, false imprisonment, defamation and/or tortuous interference with a contractual relationship.

How are employees handling the issue?

Unions are becoming more sensitized to bullying. In Massachusetts, a new collective bargaining agreement covering 21,000 state employees includes protections against workplace bullying, defined as behaviors that contribute to a hostile, humiliating or intimidating work environment, including abusive language or behavior. Under that agreement, an employee has 90 days to report a bullying incident and may be subject to grievance procedure, but no arbitration.

How can employers reduce their liability in regards to workplace bullying?

Obviously, employers should take reasonable means to prevent bullying in the workplace. At a minimum, employers should adopt and distribute widely an articulated policy, which provides for a prompt response including an evaluation of facts and investigation, as well as providing for prompt and effective remedial action.

In assessing a potential bullying situation, the employer should ask itself whether the conduct, if it occurred as alleged, would violate any significant rule or expectation of employee conduct. If the answer is yes, the employer should engage in a prompt investigation and the accused employee should be removed from the workplace if allegations are sufficiently serious and/or more harm could occur.

Action taken as a result of a good faith, thorough investigation that came to a reasoned conclusion can insulate a company from liability for wrongful termination and/or defamation.

Craig W. Snethen is an attorney at law with Jackson Lewis LLP. Reach him at (412) 232-0196 or snethenc@jacksonlewis.com.