According to the National Bullying Institute, one-third of Americans are bullied at work, and workplace bullying is on the rise. Recently the issue of bullying made national headlines when Miami Dolphins offensive tackle Jonathan Martin, accused lineman Richie Incognito of physical and verbal abusive behavior. The absence of state or federal legislation to address this troubling trend sends bullies the message that they can get away with such behavior as yelling, screaming, humiliating, and sabotaging an employee’s career. The legal void also signals to employers that they can turn a blind eye to bullying without fear of legal repercussions.
Compared to other western democracies, including Britain, Canada, France and Australia (which have all enacted anti-bullying legislation) the United States is in the dark ages on this important mental health issue. But at the state level, there are signs that this may be changing.
Suffolk University Law Professor David Yamada has drafted model anti-bullying legislation, known as The Healthy Workplace Bill. The Healthy Workplace Campaign defines workplace bullying as “repeated, health-harming mistreatment” that involves verbal abuse, offensive conduct that is threatening, humiliating, intimidating or work sabotage.
Since 2003, anti-bullying legislation has been introduced in 25 states (including California). While none has been enacted into law, there are currently 11 states that have bills under active consideration.
This kind of legislation will undoubtedly ignite the business lobby with their well-worn opposition arguments. Employer groups will continue to argue that anti-bullying legislation will open up the floodgates of litigation and clog our already overburdened courts because “overly sensitive” employees will run to file a lawsuit every time they have a bad day at work.
But this focus on the frivolous is a straw argument that trivializes the real cost of bullying to workers and businesses alike. The concern about legislating workplace civility can be addressed by careful drafting. Rather than fighting workplace bullying laws, employer lobby groups should put their energies into crafting a law that will prohibit abusive or humiliating treatment that no decent employer would sanction, while leaving supervisors free to constructively manage and discipline employees.
It would be nice if internal policies and company grievance procedures had put an end to the harm of workplace bullying. But that has not happened. What we know from past experience is that sometimes it takes a change in law to change behavior.
Before the passage of laws like Title VII and California’s Fair Employment and Housing Act, it was legally permissible to harass and discriminate against employees on the basis of their race, color, gender, sexual orientation, disability, age, and other now protected categories. Once these laws were in place, U.S. companies began holding their managers and employees accountable to eliminate discrimination and sexual harassment in the workplace.
The good news is that, according to a survey by one human resources professional organization, 56% of U.S. companies already have some sort of anti-bullying policy. Drawing on models from employers themselves, we should be able to frame a law that would eliminate frivolous claims by definition by requiring claimants to show not only of out-of-bounds conduct, but also documented harm. While there may be some who still try to file unworthy suits, careful crafting of legislation will ensure that their suits are tossed out. But throwing the baby away with the bath water is not the solution to a growing national problem. It’s time for California and other states in the union to get serious about enacting anti-workplace bullying legislation.