by Jamie Thompson, Summer Associate
Employers should be aware that bullying may give rise to actionable harassment claims when the bullying is connected to a protected category.
Bullying is often thought of as a problem that was outgrown and left behind from days in grade school and on the playground. However, bullying has crossed over into workplaces of all types, across various industries. According to a June 2017 National Survey from the Workplace Bullying Institute, 19% of Americans are bullied in the workplace and another 19% have witnessed bullying. Additionally, 61% of Americans are aware of abusive conduct in the workplace.
Workplace bullying is commonly defined as repeated mistreatment of an employee by one or more employees; abusive conduct that is: threatening, humiliating, or intimidating; work sabotage; or verbal abuse. Bullying conduct may not be unlawful under federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, when the bullying is not tied to a protected trait such as race, color, religion, sex, or national origin; or when the conduct does not result in an adverse employment action.
Currently, there are no federal or state laws that prohibit workplace bullying. However, three states have succeeded in passing legislation with the purpose of mitigating workplace bullying. It is important to note that none of these laws allow a person to maintain a cause of action or recover for damages. Rather, these states have mandated anti-bullying training and provide incentives for employers to adopt anti-bullying policies.
California
In 2015, California passed AB 2053 requiring employers with 50 or more employees to include abusive conduct prevention training as part of their statutorily mandated harassment prevention training.
Tennessee
In 2014, the Tennessee General Assembly became the first state to pass a “Healthy Workplace” bill. The Act only applied to public sector employers, encouraging them to adopt an anti-bullying policy that immunizes them from liability in lawsuits alleging intentional or negligent infliction of mental anguish due to the abusive conduct of employees. To be eligible for immunity, the policy must (1) assist employers in recognizing and responding to abusive conduct in the workplace and (2) prevent retaliation against any employee who has reported abusive conduct in the workplace. Public sector employers had the option of adopting a model that conformed to the stipulations mentioned above or to adopt the state’s model policy. In April 2019, the new law, which is now in effect, was redefined to include private sector employers. To clarify, this law does not require employers to adopt an anti-bullying policy and does not create a new cause of action against employers.
Utah
In 2015, Utah passed a law requiring its state agencies to train supervisors and employees about how to prevent abusive conduct. This biannual training must define abusive conduct, its ramifications, and provide the resources available to employees who are subject to abusive conduct and the grievance process.
While there are no laws directly prohibiting workplace bullying or creating a legal cause of action for workplace bullying, employers should be aware that bullying may give rise to actionable harassment claims when the bullying is connected to a protected category. In business terms, workplace bullying can affect an employer’s bottom line.
The effects of workplace bullying include increased absenteeism, increased turnover, low productivity, and decreased morale. To minimize bullying and promote a safer and more respectful work environment, employers should consider:
- implementing clear anti-bullying policies,
- requiring specialized training such as workplace civility trainings, and
- taking steps to address known bullying behavior.
Please contact Jamala McFadden at jmcfadden@theemploymentlawsolution.com if you have questions regarding anti-bullying policies and training.
