When people hear the word “bullying” they may think of schools or playgrounds, but in truth, workplace bullying has become increasingly pervasive, and can create significant legal ramifications for employers. In fact, a 2012 survey by the Society for Human Resource Management found that 51% of organizations reported incidents of workplace bullying. Workplace bullying is generally defined as repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators in the form of verbal abuse, offensive conduct, or work interference.
Workplace bullying poses significant threats largely for two reasons. First, an organization’s culture is critical for positive employee engagement and workplace bullying can cripple that culture, as well as creating significant costs to the organization. Second, individuals often spend large amounts of time in close proximity with others and when workplace bullying occurs, the risks of escalation resulting in serious harm rapidly increases.
While there is not currently a federal law prohibiting bullying, if a person can demonstrate that the bullying was somehow related to, caused by, or motivated by a person’s status in a protected class, such conduct could create liability for the employer under Title VII’s anti-discrimination laws. For example, bullying based on race, gender, religion, or national origin could all potentially create liability for an employer under Title VII. And, while it is true that an abusive workplace that is not discriminatory does not violate the law, if a victim can show a nexus between the harassing conduct and the victim’s protected class status, the victim need not show patently discriminatory conduct such as racial slurs or sexist comments. Simply put, by merely targeting a member of a protected class, a harasser may be creating Title VII liability for an employer who permits the offending conduct to occur. In addition, while Pennsylvania is not one of them, nine states, including New Jersey and New York, currently have pending legislation that would give employees a private right to bring suit against employers and workplace bullies.
Now, more than ever, employers should put steps in place to minimize workplace bullying and mitigate potential liability. First off, employers should maintain strong and consistent policies prohibiting bullying behavior. As with any internal policy, it is important to: (1) clearly outline what behaviors constitute workplace bullying; (2) detail the consequences of the prohibited behaviors; (3) outline the system that will be used to respond to complaints; (4) encourage reporting by employees; and (5) inform employees how to make a report. As a guide, an employer may want to institute the same policies they use for discriminatory conduct in the workplace. It is critical that employers take complaints of workplace bullying seriously, with proactive responses, as this may offer a defense in the event of litigation. By proactively managing the workplace environment, employers increase productivity, promote health and well-being, and reduce costs in sick leave, absences and staff turnover.