The Law and Workplace Bullying

Unlike the United States, many countries already have laws against workplace bullying. Some of them include Ireland, the United Kingdom, Sweden, Denmark, four provinces in Canada, and two states in Australia.

At this time, the United States does not have a unified law to address workplace bullying. Harassment and hostile work environment laws only cover protected classes. That means that if the bully is an “equal opportunity bully,” and does not bully because of the nine protected classes, including race, color, gender, religious beliefs, national origin, age, familial status, or disability, then the bullying is legal. The fact that bullying is legal is the reason most organizations do not have an anti-bully corporate policy.

However, workplace bullying has begun to show up in court cases, and pockets of legal recourse for workplace bullying do exist in the United States, which suggests we’re getting there. Examples include:

  • Hawaii, 2006, Senate Resolution: Hawaii required all employers to implement an anti-bullying policy that must be provided to a regulatory agency managing compliance. Policies are a step in the right direction, but don’t solve the problem.
  • Indiana, 2008, Raess v Doescher: Doescher sued Raess for Intentional Infliction of Emotional Distress, and lost. But, this is the first court case to include “workplace bullying” as part of the proceeding, making it a landmark case for workplace bullying. Since then I and many of my colleges have been called as an SME in cases where “workplace bullying” was cited as part of the issue.
  • Nevada, 2010, Nevada Revised Statute 388: Nevada, like many states, has revised their school age bullying laws to require schools and school districts to take action, provide training, etc. However, as Nevada’s law describes what bullying, intimidation and harassment are, it also states that all adults (e.g., principles, teachers, administrators, staff, etc) are also prohibited from bullying, harassing or intimidating students or other adults. In other words, adults who work in the school system in Nevada are protected from workplace bullying.
  • Ventura County, 2010, Anti-Bullying Initiative: Employees who work for Ventura County are protected from workplace bullying. The Director of HR for Ventura County was required by the City Council to implement a policy and training program after many county employees spoke out with the help of their union.
  • Joint Commission Leadership Standard (LD.03.01.01): The Joint Commission regulates the health care industry, and requires that the industry address what they call intimidating and disruptive behaviors. They did this because they understand that if one nurse is afraid of another nurse, for example, a patient’s life could be in danger as a result of the lack of communication and teamwork.
  • OSHA: Having done research on workplace bullying through NIOSH, OSHA released an anti-bullying policy for its own employees in 2011. NIOSH found in its research, among other things, that 25% of workplaces have bullying and 11% of bullied targets are the customer.

These are exciting moves in the right direction. As these pockets of regulation continue to pop up, it is clear that workplace bullying will eventually, some day, have laws prohibiting it.

In the interim, the Healthy Workplace Bill has been reviewed in 21 states and has over 300 legislative supporters – but has yet to pass in any state. The problem most see with this bill is that the definition of workplace bullying includes “malice” or intent, which is hard to prove. Many of the people who oppose this Bill think that, while it would require employers to take action against workplace bullying, it isn’t the right option. Instead, these folks believe that workplace bullying can and should be added to already existing law.

Disclaimer: I am not an attorney. I am a management consultant.