Requiring such policies, according to those pushing the legislation, isn’t an attempt to spawn lawsuits, but an effort to force companies to deal with the problem.
Bullying is blamed for unnecessarily creating high costs of turnover, insurance claims and thwarted productivity. In his book The No Asshole Rule, author Robert Sutton reports one company estimating annual losses of $160,000 in turnover, overtime and other costs created by handling problems caused by one star salesman’s tantrums and insulting behavior.
One employer attorney, however, says laws already on the books to prevent employer discrimination based on sex, race or religion are now being interpreted in broadened contexts, and offer enough legal coverage to obviate the need for anti-bullying rules.
Nevertheless, anti-bullying rumbles are breaking out in state legislatures. Since 2003, 13 states—California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Vermont and Washington—have introduced 28 versions of the so-called "Anti-Bullying Workplace Bill," says Bullybusters.org, a Web site tracking the legislation.
Bullying, according to the bill’s original language, is defined as repeated "health-harming mistreatment" of one or more employees, through verbal abuse, threats, "humiliating or offensive behavior or actions," or sabotage that prevents work from getting done.
In Hawaii, a Senate resolution urges—but doesn’t require—employers to set up anti-bullying policies for managers and employees. The resolution notes that the National Institute for Occupational Health and Safety recognizes workplace bullying, defined as "the repeated intimidation, slandering, social isolation or humiliation by one or more persons against another," as a form of workplace violence.
Gary Namie, director of the Bellingham, Washington-based Workplace Bullying Institute, says the original anti-workplace-bullying legislative language has been changed in various ways by states introducing it. Some call for studies to determine the prevalence of workplace bullying, and others dilute the legal power of the original legislation. The goal of the legislation is to "outlaw any abusive work environment that is health-hazardous," he says.
"The real goal of the [proposed] law is not lawsuits," Namie says, "but an anti-bullying policy that is enforced. It takes a law to compel [employers] to act. If the law is on the books, employers that have not bothered to correct bullying are going to be liable."
So far, the legislation introduced in the 13 states has yet to result in any new anti-bullying laws.
"That tells me the arguments against it are very strong," says Garry Mathiason, a San Francisco-based employer attorney with the firm Littler Mendelson.
Mathiason has no shortage of arguments against anti-bullying laws. High on his list is the difficulty in defining harassment. He sees a problem in defining whether a frustrated boss raising his voice at an employee who continues coming to work late is harassment—i.e., bullying—or good management.
"How do you distinguish between the two?" he says.
And corporate anti-bullying policies, he adds, "would make every disciplinary situation open for debate. Employers would be required to investigate, and when there are emotions, things are remembered differently. People can view actions as harassment when in fact it is nothing more than getting the job done."
While anti-bullying policies can be adopted by companies, notes Mathiason, there is no guarantee they’ll be enforced. Meanwhile, he says, he’s already seen hundreds of cases of employers disciplining employees with behavior problems.
"I’m satisfied with where the law currently is and how it’s evolving, but I would not favor an anti-bullying statute," Mathiason says.
He cites an example of a National Education Association case two years ago involving a verbally abusive boss who offended all employees indiscriminately as "an equal opportunity harasser," regarding religion and gender, and not any select individual or group.
"But this case looks at it a little differently," says Mathiason, noting that it examined which group the boss offended the most to show discrimination. "This is where I see the courts trying to push the line for some broadening of existing law." If bullying, or harassing, is defined by the courts as a form of discrimination, he argues, existing law already forbids it.
Employer attorney Jim Hall of Los Angeles-based firm Barlow, Kobata and Denis agrees.
"I don’t see, for a human resources policy, a big difference between bullying versus any other form of harassment," he says. "It’s subject to general anti-harassment policy."
With a policy in place forbidding harassment over race, sex, age or religion, adds Hall, "The employer should treat bullying as a species of harassment and deal with it on that basis."
But he stresses that companies need to stop bullies from working for them. "They should be concerned, because today’s bully could be tomorrow’s mass murderer," Hall says.
Every time there’s a workplace shooting in the news, says Hall, he gets calls from concerned employers wanting to know how to fire an employee who has made threats.
In those cases, he says, most companies’ anti-harassment policies cover what action to take when threats are involved. If the policies don’t cover threats, he says, they probably should. That’s because as far as he’s seen, harassment claims aren’t showing any signs of going away.
Nothing new, but a problem
Bullying in the workplace is nothing new, Namie says. But he figures it has increased "because of pressure for investor-driven goals" put on companies. "They’re squeezing more production out of fewer folks."
Increased bullying in the workplace takes a toll on bottom lines, he says, through employee turnover, absenteeism, disability insurance claims and possible litigation. "The No. 1 impact is the cost to employers," he says.
Other byproducts of bullying, he says, are eroded morale and a tarnished reputation to the company as "the worst place to work."
A no-bullying policy, Namie says, will bring visibility to abusive conduct, and employers will have to deal with it. And that’s good for both the employer and its employees, Namie argues.
Employer attorney Mathiason sees workplace stress contributing to workforce bullying cases. "There is intense economic competition worldwide," he says. "There are increases in productivity demands, tighter schedules and lower ratios of managers to employees."
He says that employers are already dealing with bullies for another big reason. There’s a demographic shift in the workplace in which baby boomers are retiring, and there aren’t enough qualified replacements to fill the gap.
"We’re entering into a deep and extreme skill shortage," says Mathiason, quoting an estimate that by 2010 there will be 10 million skilled-job vacancies. In that context, he adds, "An environment that does not respect individuals is going to be very unwelcome by employers trying to attract and retain talent."
Dealing with it
When a bullying case arises in a workplace, says Barbara Reeves, an Irvine, California-based mediator and arbitrator, she says the problem should be mediated as early as possible to prevent either side from digging in for a protracted fight. A mediator will allow an employee’s grievance to be heard by a neutral third party, which is a procedure that she recommends employers have in place to solve the problem before it escalates.
Another approach is to have a complaint hot line for employees connecting to an outside organization, she says. That organization then notifies the company’s human resources department to set up mediation.
Reeves is closely monitoring the legislative progress of anti-bullying measures. The Canadian province of Quebec already has laws in place on the subject, she says.
Quebec outlaws "vexatious behavior" that affects an employee’s "dignity or psychological or physical integrity."
Among types of behavior leading to bullying complaints, Reeves says, are bosses criticizing an employee’s performance in front of other workers, dirty looks or intentionally ignoring a specific employee. In short, Reeves says, "These are things we are taught not to do. It’s analogous to the schoolyard bully: someone who has power who gets a charge out of using it by yelling at people."
The newest generations entering the workforce, Reeves adds, "don’t want to put up with it." They’re seen as more likely to complain than older generations.
But Reeves also thinks drafting new laws making merely rude behavior illegal "is kind of a nightmare. I’d hate to have to legislate a code of civility."
Meanwhile, Atlanta-based workplace consultant Stephen M. Paskoff figures employers need to deal with bullying—even if it isn’t illegal now—to keep it from becoming a costly problem.
Paskoff—who has been a workplace consultant to Nike, Mayo Clinic, Coca-Cola and other corporations and wrote the book Teaching Bigshots to Behave—is seeing more frequent cases of workplace bullying these days.
"I think it arises because the behavior is not recognized as expressly illegal," he says, "so it tends to get ignored until someone’s behavior hits the front pages."
And employers tend to ignore bullying—particularly if it is someone who is a great producer, Paskoff says.
But even if the bully is a strong performer, the problem is that the behavior loses clients and costs the company business, Paskoff says. Or, in a health care setting, it can cost a life.
An article on bullying in the medical profession, published in February in the Journal of Vascular Surgery, cited an example of a surgeon with a reputation for "disruptive behavior" dealing with a new anesthesiologist: "After the tumor had been removed, the surgeon slipped into his disruptive pattern and verbally abused the anesthesiologist so aggressively that, in her distraction, she neglected to turn off the nitroprusside drip. The patient died."
Paskoff has found that companies tend to ignore behaviors like bullying that aren’t explicitly illegal. "Employment lawyers look at it through the lens of ‘Is it legal or not?’ " he says. "That’s how lawyers are trained. But that legal view is missing the whole point. It could be legal, but highly unsavory."
He’s found that in-house attorneys tend to understand the implications of ignoring the problem better than outside lawyers do because they get an up-close look at the business consequences of bullying.
Putting an anti-bullying policy in place partly deals with the problem, Paskoff says. But he stresses it’s just as important to have an organizational standard of how all employees are to be treated.
"It’s very regrettable if companies don’t address bullying," Paskoff says. "If they don’t, laws will jump in and be burdensome."