Workplace Bullying and the Law

by Sep 11, 2020Uncategorized0 comments

This is a long one, so grab a cup of coffee and clear your schedule.

It’s been a while since I’ve written a long and epic article about my super-niche, workplace bullying. With Puerto Rico recently passing a law to prohibit workplace bullying, and Google searches on the phrase going up 30% every other week since COVID, I got inspired.

I thought I’d revisit the workplace bullying laws currently in effect in the U.S., and in doing so address whether bullying is intentional behavior or not. 

Nevada was the first to pass an anti-workplace bullying law in 2009 when they revised their anti-bullying law for schools. The law specifically states that teachers, administrators, coaches, staff members, or anyone on campus who uses school facilities will “be held accountable” if they engage in bullying. The law also requires training, regulates reporting and investigations, and much more. 

In other words, if you’re an adult working in the school system in the State of Nevada, you’re protected by the law from workplace bullying.

In 2014, Tennessee passed the Healthy Workplace Act, which applied only to public employers. In 2019, the Act was amended to include the private sector. 

The Act does not prohibit abusive conduct or workplace bullying, but it encourages employers to adopt an anti-workplace bullying policy by making employers immune from lawsuits if they have a policy in place. The Act also created a model policy – which I am proud to report I was a part of creating.

In 2015, Utah passed its law regarding abusive conduct, which only applies to public employers. It requires state employees to attend a training on abusive conduct every other year, where topics include abusive conduct definitions, resources available to targets, and the grievance process. In alternating years, training topics include ethical conduct, leadership, and integrity.

Also in 2015, California mandated that employers revise their required biannual harassment prevention training to include the topic of abusive conduct. Prior to 2018, only employers with 50+ employees were required to deliver this training to supervisors, but now employers with 5+ employees are required to deliver the training to all levels.

Most recently, in August of 2020, the governor of Puerto Rico signed H.B. 306 into law, which prohibits workplace bullying. The law creates a cause of action for public and private sector employees, the Dept of Labor has until February 3, 2021 to issue regulations and guidance for employers.

In addition to these states/territory, several local governments have policies against bullying that were voted into law by councilmembers. Examples include Fulton County, GA; Tucson, AZ; City of Riverside, CA; and the Municipality of Anchorage, AK.

Is bullying intentional? Should intent be included in the law? 

Currently, two of the five laws include malice in their definitions of abusive conduct (malice is defined as the intention to cause harm, or disregard for the rights of others or the value of human life):

  • Nevada: Acts that have the effect of physical harm, creating a hostile environment, or interfering with the performance of a pupil; or that are based on a protected characteristic.
  • Tennessee: Repeated verbal abuse; verbal, nonverbal or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s performance.
  • Utah: Physical, verbal or nonverbal conduct that a reasonable person would determine was intended to cause intimidation, humiliation or distress; exploits a known disability; or results in substantial physical or psychological harm caused by intimidation, humiliation or unwarranted distress.
  • California: Conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. It can include verbal abuse or physical conduct that a reasonable person would consider threatening, intimidating, humiliating, or sabotage. 
  • Puerto Rico: Malicious conduct that is unwanted, repetitive and abusive; arbitrary, unreasonable or capricious; not related to legitimate business interests; and that infringes on constitutionally protected rights, such as the protection against attacks to the employee’s reputation or private life, among others.”

Intention has been a hardy discussion among academics who study workplace bullying. Initially, much of the research stemmed from surveys filled out by targets of workplace bullying, who naturally believed the bullying was intentional, so that’s what was reported in the research. In the mid-90’s, however, some well-recognized researchers (such as renowned expert in the U.K., Charlotte Rayner) pointed out that people who bully had not been tapped into for research and that it was a glaring problem. 

These days there are many of us who have tapped into those who bully by surveying them, talking to them, coaching them, and learning what motivates them. 

In my own experience as a coach, I can honestly say I’ve never met anyone who intentionally caused harm or had a gross disregard for others. What motivates bullying behavior is the desire for success – for themselves, their team, and the organization they work for. Often through coaching, their behavior can change. 

In the end, the focus of any anti-bullying laws should be the conduct, not the motivation for the conduct. That’s how it is in anti-harassment laws, and that’s how it should be in anti-workplace bullying laws.

What does the future hold for anti-bullying laws?

Since 2003, the Healthy Workplace Bill (HWB), sponsored by the Workplace Bullying Institute, has garnered interest in over 30 states and has certainly influenced the laws mentioned above. It includes intent, stating that an abusive work environment exists when an employer or employee acts with intent to cause pain or distress. 

Recently, the National Workplace Bullying Coalition, an organization that I helped found several years ago, has developed the Dignity at Work Act (DAWA). DAWA takes a different approach than previous abusive conduct laws and defines unlawful bullying as:

Unwanted abuse of any source of power that has the effect of or intent to intimidate, control, or otherwise strip targets of their rights to esteem, growth, dignity, voice, or other human rights. Bullying may take the form of moral, psychological, or general harassment, abusive supervision, violence, mobbing, aggressions, and other types of objectionable behaviors.

DAWA also:

  • Provides a longer list of examples of workplace bullying than the HWB
  • States clearly that intent is not a required element
  • Holds employers and individuals liable for bullying
  • Provides a list of steps employers should take (e.g., policy, investigation) for an affirmative defense
  • Does a whole lot more than what I’ve listed here

DAWA is quickly gaining much attention in several states. If you’d like to keep tabs on its’ progress, you can search and join the Facebook group for the Dignity at Work Act in your state.

As for the future, so far two of five states/territories prohibit bullying while others only make it a topic of conversation. 

I live here in California where we have extensive laws focused on employee rights, so I expect to see more from legislators here over the coming years.

Until any of us in any state can convince lawmakers that bullying and the damage it causes is similar to harassment, we won’t get too far. A main challenge the HWB has faced is legislators’ incorrect assumptions that bullying is similar to incivility, and of course, they don’t think it’s appropriate to regulate incivility. 

All of us in the workplace bullying “industry” agree. We also know that bullying is a far cry from incivility. 

About Catherine Mattice Zundel

Catherine Mattice Zundel, 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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