With Labor Day just past us, and the beginning of the school year for most, it seems an appropriate time to take up an issue that’s been bugging me for several months: workplace bullying. Not that I’ve been bullied, mind you. Instead, I keep seeing this issue pop up in headlines here and there, and I finally decided to look at it more carefully from the admittedly jaded eyes of an employment lawyer.
Bullying, according to the Workplace Bullying Institute, is “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse, threatening, humiliating or offensive behavior/actions, or work interference -- sabotage -- which prevents work from getting done.” Moreover, there are apparently a number of other key characteristics of workplace bullying. According to the institute, it “(a) is driven by perpetrators' need to control the targeted individual(s) , (b) is initiated by bullies who choose targets, timing, place and methods, (c) escalates to involve others who side with the bully, either voluntarily through coercion, and it (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself.”
Now at first glance, this definition strikes me as objective, and almost scientific. However, applying some of the complaints I’ve heard over the years from employment law plaintiffs, the concept of bullying becomes a little more amorphous. If, for example, a boss repeatedly tells a subordinate that he must improve his work performance or his job will be in jeopardy, and the employee develops a stress related condition as a result, doesn’t that fit the definition above? It’s repeated, health-harming, and threatening, isn’t it? And depending on how “nice” the boss is when she delivers that message, it might even be interpreted by some as mistreatment.
It’s no wonder then, with such a squishy definition, that a recent study concluded workplace bullying was an epidemic: “Workplace Bullying is an Epidemic. 37% of American workers, an estimated 54 million people, have been bullied at work. It affects half (49%) of American workers, 71.5 million workers, when witnesses are included.” Even a cursory look at the study, though, suggested that in reality only 13% of respondents reported that they had actually been bullied in the last year. Isn’t it amazing what you can do with statistics?
Now I’m not trying to pick on (or bully) the Institute by going after their definition and their study, but there is a legitimate issue here for employers. As a result of lobbying efforts by worker advocates, there are several bills pending in legislatures around the country that seek to impose restrictions on workplace bullying. One of these advocacy sites, BullyBusters, actually likens bullying to “general workplace harassment,” and this concept is what really troubles me when I think about the impact on my clients. As difficult and costly as it can be for employers to manage illegal workplace harassment, what will happen if it becomes illegal to tolerate “general workplace harassment,” when the definition of such harassment can potentially include daily workplace reprimands or other legitimate activity? In investigating and training folks on current laws about sexual and racial harassment issues, I see managers legitimately concerned (and sometimes confused) over what they can and cannot say in the workplace. After years of evolution, the law is still gray. The imposition of a general workplace civility rule, backed by compensatory and punitive damages, will clog the courts with people who haven’t recognized that, in life, there will be adversity. It is not the place of either the legislatures, or employers, to shield people from that reality.
Employers can take proactive steps to avoid problems in this area. Of course, training managers is a must. There are good management practices, and poor practices. Good communication can avoid misunderstandings that might someday lead to a “bullying” lawsuit. In addition, harassment policies can be reviewed and rewritten as needed to insure that the work environment is appropriately free from true harassing behavior. Finally, employers can be cognizant of lobbying efforts and legislative initiatives, and oppose those with flawed provisions or definitions. Unlike the bullies in the schoolyard, however, employers should not follow that old adage of “just ignore it and it will go away.”