“A growing number of states [are] consider[ing] legislation that would let workers sue for harassment that causes physical or emotional harm." This, according to a recent AP news report.  These laws would not require any showing of discrimination.


The AP cited a 2011 SHRM study which found that half of all employers reported bullying in their workplace, and, shockingly, that approximately 1 in 4 HR professionals claimed to have been bullied. The employers said that most bullying consisted of shouting, cursing, name-calling, malicious gossip, rumors and lies.  20% of the bullying took place by way of social media. 



Notably, bullying by itself does not violate Title VII or any other anti-discrimination laws, because, as the Supreme Court recognized in the case of Oncale, the statute is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and to create an abusive working environment.  


Justice Scalia famously declared that liability for same-sex harassment, at issue in that case, will not transform Title VII into a “general civility code for the American workplace,” since “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination . . . because of sex.’



It is because a victim of bullying must currently show that the bullying was based upon his/her membership in a protected class that anti-bullying advocates are pushing legislation to protect employees who are not in a protected class, i.e., based on race, gender or national origin. That is, they are pushing for a “general civility code for the American workplace.”   England, Ireland and Sweden already have such laws. 



A little more than half of the SHRM-surveyed employers already have some kind of anti-bullying policy or code of conduct, and more than a dozen states, including New York, have recently considered anti-bullying laws that in some way track Title VII in their proposed policies and remedies. Further, the National Association of Government Employees Local 282 in Massachusetts has an anti-bullying clause in its collective bargaining agreements.  



The AP notes that business groups strongly oppose such laws, which they believe will just encourage frivolous lawsuits.  


Are such proposed laws tenable? Will they address the problem of bullying while not encouraging meritless claims?   Does anyone in HR have any thoughts about this?