Workplace bullying a legal form of harassment

February 27, 2012
| By Ali Jonker |
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Most people, including many human resource professionals, believe that a hostile work environment, sexual harassment and racial discrimination are illegal for everyone. Unfortunately, this is not the case.

The availability of legal solutions to address these types of employee abuse are limited to victims who belong to a protected status group: women, people over the age of 40, people with disabilities, or those with strong religious views. The victim has the burden to prove that he/she has been treated differently simply by being in a protected status classification.

Victims of workplace bullying are left with no legal means of addressing harassment when the harasser is of the same gender, age, or race as the victim.  The law, for example, does not cover woman-on-woman harassment. We also know from the national 2007 WBI U.S. Workplace Bullying Survey that illegal discrimination happens in only 20 percent of cases of mistreatment. That means that the vast majority of situations are bullying. Although they are just as debilitating to a victim, they are not legally actionable. 

Most employer policies are developed to comply with federal and state laws governing discriminatory misconduct. If certain behavior is illegal, there exists policy to address it. Relatedly, if there are no state or federal laws to prohibit negative behavior, employers need not address it with a policy. Therefore, many employers do not have a policy addressing bullying behaviors.

Bullying reform is being introduced to state legislators in the form of the Healthy Workplace Bill authored by Suffolk University Law Professor David Yamada. Canadian employers, as well as those in Sweden, the United Kingdom, Ireland and Australia, have recognized the need and taken steps to protect employees from bullying behaviors. These employers realize the potential for bullying situations to turn violent, not only for the victims who inwardly cope with the stress but for the perpetrators who could find themselves harmed by a victim who outwardly decides to return the punishment they have received.

So who should lead the way in developing an anti-bullying program in an organization?

I would have thought that human resources would be leading the charge. Interestingly, I came across the following: the Workplace Bullying Institute’s founders, Gary and Ruth Namie, write in their book “The Bully-Free Workplace: Stop Jerks, Weasels, and Snakes from Killing Your Organization” that the Society for Human Resource Management opposes anti-bullying legislation or the Healthy Workplace Bill in several states.

The Namies maintain that when the Healthy Workplace Bill becomes law, it will hold offenders and employers accountable for repeated, malicious, health-harming abusive conduct perpetrated by bosses and coworkers. The Namies further write that the HR industry’s official position is to oppose a societal means of addressing workplace bullying, which indicates a profession that does not advocate for employees.

Curiously, I also just read an article published in SHRM’s December 2011 Newsletter: “Study Probes Bullying of HR Professionals” by Pamela Babcock. This article suggests that HR professionals are targeted by bullies just as much as other employees and even states that the abuse they experienced was related to their role as an HR professional.

The study’s author, Teresa A. Daniel, J.D., Ph.D., dean and professor of human resource leadership programs at Sullivan University in Louisville, Ky., has been writing and speaking about workplace bullying since 2005. SRHM also published her book “Stop Bullying at Work: Strategies and Tools for HR & Legal Professionals.” The article in the SHRM Newsletter further discusses strategies that HR practitioners may find useful when responding to bully behaviors. 

After reading these two resources, I initially thought that the WBI may have been mistaken on SHRM’s position toward workplace bullying. However, nowhere in the SHRM article does it mention creating policy as a means for holding individuals accountable for inexcusable bullying behavior. The article specifically gives suggestions as to how the target of bullying can improve themselves to better handle abusive behaviors, but it never indicates how the bully should be dealt with. This seemed crazy to me — that a professional trade association that has identified bullying as an issue among its profession does not advocate for addressing the negative behaviors of the aggressor. 

So where does a bullied target turn for help? Business owners and HR departments need to address bullying with specific policy as to what behaviors are not tolerated and address them accordingly by holding bullies accountable and giving targets a means of support.

For those companies that have already addressed bullying behaviors by establishing policy protecting employees against related behaviors — kudos to you! For those who have yet to initiate any protections, I challenge you to do so now before it becomes mandatory and before you lose good employees to the harmful side effects of legal harassers. Believe me, they are out there. Hopefully, you are not one of them and recognize the need to respond to those who cannot go it alone.

Ali Jonker is a security consultant and an associate at P3HR Consulting & Services LLC.

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