Recent media coverage has heightened employer awareness of workplace bullying. This awareness, however, has created some confusion about what, if anything, should be done to address workplace bullying, and whether harassment policies are sufficient to protect the employer. While many times the characteristics of bullying and harassment can overlap, the law relating to each of these areas is different. It important for employers to understand the differences between the two and have policies in place to identify, assess, minimize, and control the risks associated with such behavior.
Workplace bullying is often defined as repeated, unreasonable, and unwelcome behavior directed toward an employee or group of employees that creates a risk to health and safety that takes one or more of the following forms: verbal abuse, offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating, or work interference which prevents work from getting done. Bullying is distinct in that it contains a health and safety component. Unlike discrimination and harassment, bullying can be directed at anyone and does not have to be related to race, color, religion, or any other protected class.
Workplace harassment, on the other hand, exists where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive, and 3) the unwelcome conduct is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Workplace bullying creates a significant threat to the health, safety, and welfare of people in the workplace. It can also have wider implications for employers, including reduced profitability, low morale, and increased absenteeism and staff turnover. Bullying can also expose the employer to legal claims. While employers often treat bullying and harassment as similar issues, the two concepts are different and should be separately addressed in any policy an employer may have for handling these issues. It is important for employers to identify workplace bullying as a concern and minimize effect on employees.
Federal employment law does not currently address bullying in the workplace though it still poses a health and safety issue, making it an employer’s responsibility to prevent workplace bullying and to provide a safe workplace for employees. Several states have proposed laws seeking to address workplace bullying. New York’s “Healthy Workplace” bill is currently pending with New York State’s legislature. If this law is passed it would create a framework for employer responsibility as well as provide guidance on how these matters would be handled in the legal system.
While the legal framework for bullying claims is uncertain at this time, employers should use caution to minimize exposure from workplace bullying. Failure to do so can expose the employer to claims for a breach of health and safety if bullying is not properly handled. Moreover, workplace bullying can cause reduced profitability, low morale, and increased absenteeism and turnover.
Employers who seek to prevent workplace bullying should address the problem as they address complaints of legally actionable harassment. There should be separately established bullying and harassment policies in place. Make sure that employees know that the complaint process is available and that the complaints will be handled promptly and judiciously. Workplace bullying is a separate issue and should be recognizable to all involved and addressed properly. Employees should be aware that the process for handling these issues exists and that if they have complaints or have witnessed mistreatment, the employer wants to know about it and immediately correct it. Effective policies should ban bullying, providing easily understood examples of inappropriate behavior and a clear procedure to investigate and handle complaints.
If you have any further questions or concerns about the information contained in this Advisory you should not hesitate to contact us.