Are you sure workplace bullying is legal?

by Jan 11, 2017

According to OSHA’s website, “workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior. It ranges from threats and verbal abuse to physical assaults and even homicide.”

Two out of those four examples are describing workplace bullying, also known by workplace violence experts as Level I violence. Of course, OSHA requires employers to provide their employees with a place of employment that is free from hazards that are causing or likely to cause harm to employees. Sure sounds like OSHA makes bullying illegal… but… unfortunately, reality says otherwise.

I haven’t heard of any court cases where the plaintiff’s attorney used workplace violence and bullying synonymously. I haven’t heard of anyone filing a complaint with OSHA for workplace bullying. I haven’t even heard of anyone else comparing OSHA’s description of violence to workplace bullying.

Why?

According to the EEOC’s website, harassment is unwelcome conduct that “becomes unlawful 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.”

This definition is describing workplace bullying… but… alas… this description comes with the caveat that harassment is, “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

Why is the same exact behavior described by the EEOC as illegal, legal, as long as it’s not based on one of these characteristics?

Why are we so hung up on whether the behaviors are aimed at a protected class. If they are – it’s harassment and it’s illegal and we do an investigation. If they are not – it’s bullying and we don’t think it’s a big deal. Or maybe we consider it to be conflict, or an interpersonal problem for people to resolve themselves. That just doesn’t make any sense.

Harassment and bullying are all so similar that the only place differences will be truly be scrutinized are in the courtroom. This is already happening all across America, even without laws specifically prohibiting workplace bullying. I’ve been an expert witness in three of them: two against government agencies, and one against a billion dollar retailer.

Why not just put a stop to bullying and focus on creating a positive work environment long before that happens?

One step to solving workplace bullying is to get leadership to believe you when you say bullying is a problem that needs to be addressed.

The C-Suite often needs information about liability, and data on the damages, if they are going to approve an initiative like this. Share the similarities between level 1 violence and harassment, and share with the C-Suite that there are already hundreds of cases about workplace bullying happening all around us.

Also, consider creating an excel sheet that lays out the cost of not solving workplace bullying. Consider things like how much time it takes you to council targets, how many employees have left, the price of replacing those folks, and more. Put it all into a spreadsheet, and share it with your C-Suite.

Another step is to implement a healthy workplace corporate policy (not an anti-bullying policy) that provides information about what respectful and civil behavior looks like in your organization.

Most of my colleagues suggest an anti-bullying policy, but your corporate policy handbook already provides many lists of what not to do. While this policy should define and describe bullying, it should focus on what behaviors are required from employees to create a respectful work environment.

In order to gain buy-in for your new policy, seek help from your employees to write it. During your next staff meeting or harassment training, break your attendees into groups of three or four, and give them 10 minutes to brainstorm what behaviors they would like to see from their co-workers and managers. Simply ask them, “How would you like to be treated by your peers and managers?”

After the brainstorming time is over, ask each group to share their answers, and put them in your policy. Get the full instructions for this process here on my website.

As my book, SEEKING CIVILITY: How Leaders, Managers and HR Can Create a Workplace Free of Bullying, discusses, another important step to solving bullying is to ensure your performance management system requires that everyone is being measured against your core values. Whatever your core values are, I am positive disrespect, workplace bullying, abuse and harassment are not included in them.

If your performance evaluations, for example, require that people are measured against the core values, then anyone who bullies would be marked down and, hopefully, their promotion or bonus withheld until they adjust their behavior. Maybe they even go on a performance improvement plan, or get demoted from their supervisory position if requests to change behavior aren’t successful.

In another example, if your rewards system ensures people who live the values are rewarded, then no bully would be getting rewarded.

In conclusion, the point is that HR professionals, managers and leaders all have the ability to set it up so that bullying cannot thrive in your organization. You can create a space where bullies stand out and either conform to more respectful behaviors or take themselves down the path of discipline, up to and including termination.

My book, SEEKING CIVILITY: How Leaders, Managers and HR Can Create a Workplace Free of Bullying, offers a total of 10 steps to take in order to not only eradicate workplace bullying, but actually replace it with a positive and engaged workforce and environment. Follow those 10 steps and I can literally guarantee the results.

About Catherine Mattice

Catherine Mattice, MA, SPHR, SHRM-SCP is President of consulting and training firm, Civility Partners, and has been successfully providing programs in workplace bullying and building positive workplaces since 2007. Her clients include Fortune 500’s, the military, several universities and hospitals, government agencies, small businesses and nonprofits. She has published in a variety of trade magazines and has appeared several times on NPR, FOX, NBC, and ABC as an expert, as well as in USA Today, Inc Magazine, Huffington Post, Entrepreneur Magazine, and more. Catherine is Past-President of the Association for Talent Development (ATD), San Diego Chapter and teaches at National University. In his book foreword, Ken Blanchard called her book, BACK OFF! Your Kick-Ass Guide to Ending Bullying at Work, “the most comprehensive and valuable handbook on the topic.” She recently released a second book entitled, SEEKING CIVILITY: How Leaders, Managers and HR Can Create a Workplace Free of Bullying.

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