After months of news reports and headlines of sexual harassment allegations and the emergence of the #MeToo and Times Up movements, it is worth taking a look at the closely related issue of workplace bullying. Based on the national dialogue, it is conceivable, if not likely, discussions of appropriate behavior in the workplace will expand beyond sexual harassment to include general harassment and bullying.
Workplace Bullying Defined
Courts and lawmakers who have addressed bullying commonly describe it as repeated and unreasonable actions taken by an individual or group that make an intentional impact on the person targeted resulting in mental or physical damage.
Descriptions and definitions of workplace bullying can vary. Bullying may include abrasive behavior such as verbal degradation, yelling, intimidation by invading one’s personal space and other activities. Employees who are isolated, or are denied credit for their work (which is then unfairly given to others) are victims of bullying. Other tactics include supervisors or managers who participate in bullying by manipulating their subordinates’ ability to do their work, imposing impossible deadlines or dramatically increasing their workload with no clear rationale. Additionally, subordinates may be bullied through intimidating performance management, such as continued accusations of undocumented errors or constant criticism on issues that have nothing to do with job performance.
While it can be hard to define, workplace bullying, like sexual harassment, is common. In an April 2017 online Zogby Analytics survey, about 9% of the respondents said they'd been bullied at work within the last year, and an additional 10% said they'd experienced it at some point in the past. The latter figure would translate to about 30 million employees. Men in the survey accounted for about 70% of the perpetrators, and they targeted women 65% of the time. Female bullies targeted women 67% of the time. Although the survey covered all workplace bullying, the most common and extreme examples involved bosses bullying subordinates.
Distinguishing Sexual Harassment from Workplace Bullying
To understand the differences between sexual harassment and workplace bullying, it’s important to look at the basics of sexual harassment: sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 (“Title VII”) and similar state civil rights laws. Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion and applies to employers with 15 or more employees. Title VII recognizes two types of sexual harassment—quid pro quo and hostile work environment.
Quid pro quo is a Latin phrase that means “this for that.” Accordingly, quid pro quo harassment occurs when someone in a supervisory position tries to elicit sexual favors from a subordinate employee by either promising that the favor will be returned with a job-related benefit (e.g., a promotion or salary increase) or by threatening an adverse employment action (e.g., a demotion or unsatisfactory performance review) if the sexual favor is not provided.
Hostile work environment harassment includes unwelcome and offensive behavior (e.g., off-color jokes, commenting on physical attributes, unsolicited hugs or shoulder rubs, discussing sexual activities, etc.) that is so “severe or pervasive” as to “alter the conditions of [the victim’s] employment and create an abusive working environment.” Title VII requires that, in order to be actionable, the harassment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.”
Impact of Workplace Bullying
Workplace bullying can reduce employee morale and, in turn, diminish productivity. There is of course, the obvious reality that it can carry with it a significant risk of legal action and negative exposure. Workplace bullying forces employees to become paralyzed with fear – which in turn limits their productivity and potential. Not to mention, the inter-office communications process is often stifled, and collaborative thinking becomes limited, at best. Many cases result in mental distress and the need for medical leave – or even resignation of employment. These consequences can have internal and external repercussions that may prove difficult and costly.
The legal consequences of workplace bullying should be at the forefront of every CEO’s mind. Victims of workplace bullying have taken legal action against their employers alleging claims of negligent hiring, intentional infliction of emotional distress, and discrimination (especially when mental stability is called into question). Indeed, the Indiana Supreme Court in 2008 ruled that workplace bullying, though not a form of prohibited discrimination or harassment under Title VII, could rise to the level for an employee to have a valid cause to sue an employer or other employee. In that case, the Supreme Court reinstituted a $325,000 verdict awarded by the jury and vacated by the lower appellate court. It’s also worth noting that at least 25 states have introduced workplace anti-bullying bills that would allow workers to sue for harassment without requiring a showing of discrimination, since 2003. No laws have been enacted yet by state legislatures, but the number of bills, as well as court opinions like the one from the Indiana Supreme Court, suggest such laws are likely on the horizon.
Steps Businesses Need to Take
Businesses should understand these consequences and therefore be aware of workplace bullying. They need to take initiative and be proactive by developing a comprehensive workplace bullying and violence policy that: 1) Provides a clear definition of workplace bullying and bullying behaviors; 2) Establishes a reporting procedure for bullying; and 3) Includes an explicit no-retaliation clause. The policy should be clearly stated in all employee materials, including the Employee Handbook. It should also be issued as a stand-alone policy upon implementation.
As many businesses are updating sexual harassment policies, follow suit when dealing with workplace bullying. Provide regularly scheduled training to employees about the bullying policy and train supervisors on how to recognize and address employee concerns about bullying. Finally, employers should take all complaints of workplace bullying seriously. With the national conversation on sexual harassment only gaining steam, it’s worthwhile to step back and assess any and all issues related to employee harassment.
Tim Weatherholt is a partner in the Fisher Phillips Louisville, Kentucky office. His practice is exclusively devoted to representing employers in matters of labor and employment law. This article gives an overview of certain legal issues, and cannot be construed as legal advice. For more information, call (502) 561-3990.