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As HR professionals strive to ensure a safe and inclusive workplace for everyone, they should note that some harmful bullying behaviors that aren't technically unlawful harassment can still be addressed in a workplace civility policy.
An employer's policies can be more protective of employees than the law can, said Ann Fromholz, an attorney with The Fromholz Firm in Pasadena, Calif. "If having a workplace free from bullying is important to employers, they can go a long way to achieving that by modeling behavior, having a good policy and enforcing that policy."
Bullying is generally defined as unwelcome behavior that occurs over a period of time and is meant to harm someone who feels powerless to respond.
Verbal bullying includes teasing and threatening to cause harm, according to stopbullying.gov, a website managed by the U.S. Department of Health and Human Services.
Social bullying in the workplace might happen by leaving someone out of a meeting on purpose or publicly reprimanding someone.
A 2017 survey by the Workplace Bullying Institute estimated that 61 percent of U.S. employees are aware of abusive conduct in the workplace, 19 percent have experienced it and another 19 percent have witnessed it.
These behaviors may or may not constitute unlawful harassment. Bullying is actionable under federal law only when the basis for it is tied to a protected category, such as race or sex, explained Jessica Westerman, an attorney with Katz, Marshall & Banks in Washington, D.C. Specifically, Title VII of the Civil Rights Act of 1964 prohibits harassment on the basis of color, national origin, race, religion and sex. Other federal laws prohibit such behavior on the basis of age, disability and genetic information.
Additionally, if bullying amounts to some other civil or criminal wrong, such as assault or battery, it could amount to a claim under state law, Fromholz noted.
So a manager who is mean to everyone—who is sometimes known as the "equal opportunity harasser"—might not be engaging in unlawful conduct. But that doesn't mean it must be tolerated in the workplace. Bullies can create morale problems and other workplace issues, noted Kate Gold and Philippe Lebel, attorneys with Drinker Biddle in Los Angeles, in an e-mail.
"Employers can have codes of conduct that address respect in the workplace and hold employees accountable if they do not treat others with respect," Fromholz said.
"In the absence of federal legislation prohibiting generic workplace bullying, several states are considering legislation that would provide severely bullied employees with a claim for damages if they can prove that they suffered mental or physical harm as a result of the bullying," Westerman said.
Legislatures in 29 states have introduced workplace anti-bullying bills in recent years, according to the Healthy Workplace Campaign.
For example, S.B. 1013, a bill that was introduced in Massachusetts in 2017, would prohibit all "abusive conduct" against employees—even if it isn't based on a protected characteristic.
Tennessee's Healthy Workplace Act prohibits workplace bullying that is not tied into a protected category, but it only applies to public employers, Gold and Lebel said. Public employers are immune from liability if they adopt a policy that is compliant with the statute, though individuals would remain liable despite the adoption of the policy.
There is pending legislation in Tennessee to extend protections to the private sector, they noted.
Since Jan. 1, 2015, California businesses have been required to train supervisors on how to identify abusive conduct as part of their sexual harassment prevention training. "So far, however, there is no private right of action for bullying in the workplace," Fromholz said.
"It would not be surprising to see more states pass laws requiring employers to train employees on anti-bullying," Gold and Lebel said. However, legislation that creates a separate cause of action for bullying unconnected to a protected class could open the floodgates for lawsuits by employees who feel their boss is abusive or even just unfair or mean."
Even without a law against general bullying, employers can create policies and practices to prevent and prohibit such behavior. Westerman suggests that employers:
Workers who are victims of bullying or harassment should know they can promptly report incidents to their supervisors, management-level employees, human resource representatives or other employees designated to receive reports, Westerman said.
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