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Attack Bullying Without Being Attacked

How to take down bullies without opening up your company to legal risk.

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HR Magazine June 2015Nobody likes a bully—but people often struggle to define exactly what bullying is. Like the former Supreme Court Justice Potter Stewart once famously said of obscenity, most people know it when they see it even if they can’t define it. The closest any state has come to addressing bullying is California, which has mandated training on “abusive conduct.” Yet even that law requires only training. It does not change California’s nondiscrimination laws to ban bullying per se. In California, bullying is still lawful unless it is based on prohibited factors such as race, gender, religion, national origin, age, sexual orientation or disability. The same is true under federal law and every state law.

In other words, it’s not unlawful to bully an individual merely because he or she is a competitor, for example, or to be an equal-opportunity bad manager who bullies everyone.

But while bullying isn’t unlawful, your workplace doesn’t need to stand for it. Unfortunately, it’s harder than you would think to create an anti-bullying policy because of the rights employees have under the National Labor Relations Act (NLRA), potential contractual rights, and the risk of conscious or subconscious bias.

So don’t get out your boxing gloves quite yet. Fighting bullying takes planning and fancy footwork.

State Legislation

Since 2005, legislation to make “abusive conduct” unlawful unrelated to any protected status has been introduced in approximately 27 states and two territories (Puerto Rico and the Virgin Islands). Virginia and Florida became the most recent states to entertain such a bill (both in 2015). So far, the legislation has failed across the board, even in states that are very protective of employee rights, such as California, Connecticut and Maryland.

In 2014, New Hampshire and Puerto Rico passed laws that would have prohibited abusive conduct without regard to protected status, but both bills were vetoed. That was the same year California mandated that supervisors receive training about abusive conduct without regard to protected status, although it didn’t make such behavior unlawful.

Having said that, I think we can anticipate that one of California’s plaintiffs’ lawyers will argue that the law reflects public policy and that any adverse action relating to bullying is unlawful. Watch for a wrongful constructive discharge claim—that is, “I was forced to quit because of the severe or pervasive bullying to which I was subjected in violation of California’s public policy.”

So, California employers should take the new training requirement very seriously. In fact, everyone should take bullying very seriously.

Difficult to Define

Bullying that is unrelated to protected group status is unlawful in many countries, including Canada. In some countries, such as Poland, the prohibited conduct is called “mobbing.” Knowing international law is important because many businesses have facilities outside the United States.

It’s hard to imagine anyone arguing in favor of bullying, so why has prohibiting it failed in the United States?

The primary reason is the language in many of the proposed bills is quite vague. For example, consider the definition of abusive conduct under a bill introduced in New York in January 2015: “ ‘Abusive conduct’ means acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct, including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults and epithets; verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard.”

The definition leaves much to interpretation. Is it a derogatory remark to say that someone is a weak performer? Is it intimidating to tell employees in a direct and cold way that their jobs are on the line if they don’t make necessary improvements?

As well-intended as these laws may be, the definitions they use could result in poor performers coercing managers into not managing them. Just as harassment claims are sometimes made when there is no harassment, we should anticipate the same with bullying.

In fact, anti-bullying legislation likely would lead to a cottage industry of litigation. What one person may view as slightly raising his voice to make a point may be perceived by another as yelling.

Real Impact

Still, we cannot ignore that a large percentage of employees claim to have been bullied. While I have seen different numbers, pegged it at 35 percent in 2012.

The impact of bullying can be substantial on the victim, both emotionally and physically. It can also have an adverse impact on witnesses who fear they will receive the same treatment.

And, of course, bullying hurts companies. While it may increase productivity in the short run, it will hurt it over the long haul due to the resulting lack of engagement and increased turnover. Who wants to work where they are demeaned?

Managing Legal Risks

In drafting policies that prohibit bullying, employers need to consider the following material legal risks:

NLRA risks. An anti-bullying policy that is too general may be deemed as chilling protected concerted activity under the NLRA. As we all know, the National Labor Relations Board has attacked many policies that are designed to increase civility in the workplace as being unlawful. (Please, employers: enough with this desire for civility!)

To address this problem, provide specific examples of what may and may not constitute bullying behavior so that a reasonable employee would not deem it to cover protected concerted activity.

The inclusion of some examples of what may constitute bullying will give you a strong contextual defense that a reasonable employee would not perceive the policy as prohibiting protected concerted activity.

Contractual risks. An anti-bullying policy may create quasicontractual obligations on the part of the employer. If the employer says it will not tolerate bullying, a court may say it must live up to its “commitment.”

Of course, any policy should be part of an employee handbook that clearly states that the handbook is not a contract. The strength of the necessary disclaimer varies from state to state. But even that may not be enough.

Make clear in the policy that the definition of prohibited bullying is determined by the company in its sole discretion. By stating that bullying is what the company says it is, you reduce your risk of not adhering to your own policy.

Bullying Behaviors

A policy prohibiting bullying should outline examples of behavior that might constitute bullying, such as:

  • Mean-spirited “joking” designed to exploit an employee’s perceived weaknesses.
  • Discussing an employee’s performance problems with the employee’s peers or subordinates.
  • Yelling at an employee, whether alone or in front of others.
  • Encouraging others to avoid an employee.
  • Physical intimidation when speaking with an employee.
  • Sabotaging an employee’s work.
  • Insulting an employee’s family or friends.

Also, do not state definitively that any examples you include constitute bullying. Instead, say they “may be” bullying depending on context, severity, pervasiveness and other factors as determined by the employer in its sole discretion.

Bias. Finally, an anti-bullying policy must be implemented in light of the potential for conscious or unconscious bias.

We know that a woman who is assertive—but no more assertive than a man—is often branded with a scarlet “B.” She may now be a double “B.”

There could be bias toward men, too. For example, if a man uses positional rather than interpersonal influence, he may be called a bully.

Train, Train, Train

While a policy is a good start in addressing workplace bullying, it is not enough. Supervisors need to be trained on what may constitute bullying, either in a separate training session or as part of training on performance management and harassment—or both.

Regardless, the policy needs to make clear that supervisors must do more than discourage bullying. They must respond proactively to what may be bullying engaged in by subordinates or even customers and other third parties.

Sound familiar? It should. The same admonition should be provided in training on unlawful harassment.

Another aspect of harassment training also applies to bullying: Avoid the label and focus on the inappropriateness of certain behaviors.

The label “bully” carries with it an appropriate stigma, so an employee who is labeled a bully may get defensive. The employee is more likely to make behavioral changes if he or she is told that specific behaviors are inappropriate and must cease. Someone can argue with whether yelling at a person constitutes bullying, but it is much harder to contend that such behavior is acceptable when no label is attached to it.

Of course, if we want to make sure that we have bully-free workplaces, we must evaluate employees, particularly leaders, on how they treat others. Employees who engage in bullying or other disrespectful behavior should pay a price on their evaluations and perhaps in their compensation.

Indeed, sometimes bullying should be cause for termination. Firing a bully, even if that employee is valued for what she contributes to the bottom line, may send a more powerful message than any training could provide.

Jonathan A. Segal is a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.

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