Bullying
in the workplace is angering enough people these days to be fueling a
nationwide grass-roots legislative effort to force companies to draft and
enforce policies aimed at stopping it.
Requiring such policies, according to those
pushing the legislation, isn’t an attempt to spawn lawsuits, but an effort
to force companies to deal with the problem.
Bullying is blamed for unnecessarily creating
high costs of turnover, insurance claims and thwarted productivity. In his
book "The
No Asshole Rule", author Robert Sutton reports one company estimating
annual losses of $160,000 in turnover, overtime and other costs created by
handling problems caused by one star salesman’s tantrums and insulting
behavior.
One employer attorney, however, says laws
already on the books to prevent employer discrimination based on sex, race
or religion are now being interpreted in broadened contexts, and offer
enough legal coverage to obviate the need for anti-bullying rules.
Nevertheless, anti-bullying rumbles are breaking
out in state legislatures. Since 2003, 13 states—California, Connecticut,
Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York,
Oklahoma, Oregon, Vermont and Washington—have introduced 28 versions of
the so-called "Anti-Bullying Workplace Bill," says Bullybusters.org, a Web
site tracking the legislation.
Bullying, according to the bill’s original
language, is defined as repeated "health-harming mistreatment" of one or
more employees, through verbal abuse, threats, "humiliating or offensive
behavior or actions," or sabotage that prevents work from getting done.
In Hawaii, a Senate resolution urges—but doesn’t
require—employers to set up anti-bullying policies for managers and
employees. The resolution notes that the
National Institute for Occupational Health and Safety recognizes workplace
bullying, defined as "the repeated intimidation, slandering, social
isolation or humiliation by one or more persons against another," as a
form of workplace violence.
Gary Namie, director of the Bellingham,
Washington-based
Workplace Bullying Institute, says the original
anti-workplace-bullying legislative language has been changed in various
ways by states introducing it. Some call for studies to determine the
prevalence of workplace bullying, and others dilute the legal power of the
original legislation. The goal of the legislation is to "outlaw any
abusive work environment that is health-hazardous," he says.
"The real goal of the [proposed] law is not
lawsuits," Namie says, "but an anti-bullying policy that is enforced. It
takes a law to compel [employers] to act. If the law is on the books,
employers that have not bothered to correct bullying are going to be
liable."
So far, the legislation introduced in the 13
states has yet to result in any new anti-bullying laws.
"That tells me the arguments against it are very
strong," says Garry Mathiason, a San Francisco-based employer attorney
with the firm Littler Mendelson.
Mathiason has no shortage of arguments against
anti-bullying laws. High on his list is the difficulty in defining
harassment. He sees a problem in defining whether a frustrated boss
raising his voice at an employee who continues coming to work late is
harassment—i.e., bullying—or good management.
"How do you distinguish between the two?" he
says.
And corporate anti-bullying policies, he adds,
"would make every disciplinary situation open for debate. Employers would
be required to investigate, and when there are emotions, things are
remembered differently. People can view actions as harassment when in fact
it is nothing more than getting the job done."
While companies can adopt anti-bullying
policies, notes Mathiason, there is no guarantee they’ll be enforced.
Meanwhile, he says, he’s already seen hundreds of cases of employers
disciplining employees with behavior problems.
"I’m satisfied with where the law currently is
and how it’s evolving, but I would not favor an anti-bullying statute,"
Mathiason says.
He cites an example of a National Education
Association case two years ago involving a verbally abusive boss who
offended all employees indiscriminately as "an equal opportunity
harasser," regarding religion and gender, and not any select individual or
group.
"But this case looks at it a little
differently," says Mathiason, noting that it examined which group the boss
offended the most to show discrimination. "This is where I see the courts
trying to push the line for some broadening of existing law." If the
courts define bullying, or harassing, as a form of discrimination, he
argues, existing law already forbids it.
Employer attorney Jim Hall of Los Angeles-based
firm Barlow, Kobata and Denis agrees.
"I don’t see, for a human resources policy, a
big difference between bullying versus any other form of harassment," he
says. "It’s subject to general anti-harassment policy."
With a policy in place forbidding harassment
over race, sex, age or religion, adds Hall, "The employer should treat
bullying as a species of harassment and deal with it on that basis."
But he stresses that companies need to stop
bullies from working for them. "They should be concerned, because today’s
bully could be tomorrow’s mass murderer," Hall says.
Every time there’s a workplace shooting in the
news, says Hall, he gets calls from concerned employers wanting to know
how to fire an employee who has made threats.
In those cases, he says, most companies’
anti-harassment policies cover what action to take when threats are
involved. If the policies don’t cover threats, he says, they probably
should. That’s because as far as he’s seen, harassment claims aren’t
showing any signs of going away.
Nothing new, but a problem
Bullying in the workplace is nothing new, Namie says. But he figures
it has increased "because of pressure for investor-driven goals" put on
companies. "They’re squeezing more production out of fewer folks."
Increased bullying in the workplace takes a toll
on bottom lines, he says, through employee turnover, absenteeism,
disability insurance claims and possible litigation. "The No. 1 impact is
the cost to employers," he says.
Other byproducts of bullying, he says, are
eroded morale and a tarnished reputation to the company as "the worst
place to work."
A no-bullying policy, Namie says, will bring
visibility to abusive conduct, and employers will have to deal with it.
And that’s good for both the employer and its employees, Namie argues.
Employer attorney Mathiason sees workplace
stress contributing to workforce bullying cases. "There is intense
economic competition worldwide," he says. "There are increases in
productivity demands, tighter schedules and lower ratios of managers to
employees."
He says that employers are already dealing with
bullies for another big reason. There’s a demographic shift in the
workplace in which baby boomers are retiring, and there aren’t enough
qualified replacements to fill the gap.
"We’re entering into a deep and extreme skill
shortage," says Mathiason, quoting an estimate that by 2010 there will be
10 million skilled-job vacancies. In that context, he adds, "An
environment that does not respect individuals is going to be very
unwelcome by employers trying to attract and retain talent."
Dealing with it
When a bullying case arises in a workplace, says Barbara Reeves, an
Irvine, California-based mediator and arbitrator, she says the problem
should be mediated as early as possible to prevent either side from
digging in for a protracted fight. A mediator will allow an employee’s
grievance to be heard by a neutral third party, which is a procedure that
she recommends employers have in place to solve the problem before it
escalates.
Another approach is to have a complaint hot line
for employees connecting to an outside organization, she says. That
organization then notifies the company’s human resources department to set
up mediation.
Reeves is closely monitoring the legislative
progress of anti-bullying measures. The Canadian province of Quebec
already has laws in place on the subject, she says.
Quebec outlaws "vexatious behavior" that affects
an employee’s "dignity or psychological or physical integrity."
Among types of behavior leading to bullying
complaints, Reeves says, are bosses criticizing an employee’s performance
in front of other workers, dirty looks or intentionally ignoring a
specific employee. In short, Reeves says, "These are things we are taught
not to do. It’s analogous to the schoolyard bully: someone who has power
who gets a charge out of using it by yelling at people."
The newest generations entering the workforce,
Reeves adds, "don’t want to put up with it." They’re seen as more likely
to complain than older generations.
But Reeves also thinks drafting new laws making
merely rude behavior illegal "is kind of a nightmare. I’d hate to have to
legislate a code of civility."
Meanwhile, Atlanta-based workplace consultant
Stephen M. Paskoff figures employers need to deal with bullying—even if it
isn’t illegal now—to keep it from becoming a costly problem.
Paskoff—who has been a workplace consultant to
Nike, Mayo Clinic, Coca-Cola and other corporations and wrote the book
Teaching Big shots to Behave—is seeing more frequent cases of workplace
bullying these days.
"I think it arises because the behavior is not
recognized as expressly illegal," he says, "so it tends to get ignored
until someone’s behavior hits the front pages."
And employers tend to ignore
bullying—particularly if it is someone who is a great producer, Paskoff
says.
But even if the bully is a strong performer, the
problem is that the behavior loses clients and costs the company business,
Paskoff says. Or, in a health care setting, it can cost a life.
An article on bullying in the medical
profession, published in February in the Journal of Vascular Surgery,
cited an example of a surgeon with a reputation for "disruptive behavior"
dealing with a new anesthesiologist: "After the tumor had been removed,
the surgeon slipped into his disruptive pattern and verbally abused the
anesthesiologist so aggressively that, in her distraction, she neglected
to turn off the nitroprusside drip. The patient died."
Paskoff has found that companies tend to ignore
behaviors like bullying that aren’t explicitly illegal. "Employment
lawyers look at it through the lens of ‘Is it legal or not?’ " He says.
"That’s how lawyers are trained. But that legal view is missing the whole
point. It could be legal, but highly unsavory."
He’s found that in-house attorneys tend to
understand the implications of ignoring the problem better than outside
lawyers do because they get an up-close look at the business consequences
of bullying.
Putting an anti-bullying policy in place partly
deals with the problem, Paskoff says. But he stresses it’s just as
important to have an organizational standard of how all employees are to
be treated.
"It’s very regrettable if companies don’t
address bullying," Paskoff says. "If they don’t, laws will jump in and be
burdensome."
