Legal: Workplace bullying - school playground behavior in the professional setting

Jeff Jones
Friday, Jul 6, 2012

According to statistics from STOMP Out Bullying, an anti-bullying program for kids, 1 out of 4 kids have been bullied. Research shows that bullying adversely affects children’s mental health, academic success and ability to relate to others. Similarly, the Workplace Bullying Institute (“WBI”) reports that 35 percent of adult American workers have been bullied and an additional 15 percent have witnessed it. Bullying affects workplace morale and efficiency, and the victim may ultimately quit. According to federal data on the subject, “bullying” includes being made fun of, being the subject of a rumor, being pushed, shoved, tripped or spit on, threatened with harm or being excluded from activities of others. According to the WBI, workplace bullying is “repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation, and humiliation.”

As we often see on the news, bullying occurs both in person and via the Internet, sometimes with devastating consequences. Over the last several years children have committed suicide as a result of being bullied, and according to the U.S. Department of Justice, many of the two million violent crimes occurring at work each year are related to bullying. When my 9-year-old son said he did not like school, it took an act of congress to get him to tell us about his bully. Apparently, victims in the workplace are no different – less than one half of workplace incidents are reported by employees. The victims may fear the aggressor or lack confidence that their employer will properly respond to the problem. Tackling the problem in either setting can be complicated, but addressing workplace bullying must take more into consideration than the school resource officer simply having a talk with the victim and aggressor. While under some circumstances, bullying may be unlawful under federal and state anti-discrimination and harassment laws, particularly if related to a protected-class status, workplace bullying can also be “generic” in the sense it does not use discriminatory words or actions and does not single out individuals because of their race, sex, age, national origin, religion, disability, etc. The WBI reports that workplace bullying is four times more prevalent than illegal harassment.

The first step in addressing bullying is to have a published policy defining and prohibiting bullying and providing a reporting procedure for incidents. The anti-bullying policy can be similar to harassment prevention policies, and even be included as a part of those policies. Most employers include bullying policies as part of their workplace violence policies. In addition to definitions and a reporting procedure, the policy should encourage employees to report incidents and emphasize that all acts will be investigated. The policy should include a “no retaliation clause,” and inform employees that violations of the policy may result in discipline, up to and including termination.

When complaints under such a policy do occur, the complaint should be handled similar to a harassment complaint. During the investigation, the employer should determine whether the complaint involves an allegation of potentially unlawful harassment, or “generic bullying.” Even if the complaint or incident does not involve legally protected issues, it is still necessary to thoroughly and impartially investigate in order to determine if corrective action is necessary. Employers should be careful as to what labels are attached to its investigatory materials, however, as an incorrect label may later be used against the company in a legal action.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.