The subject of anti-bullying laws – never before tried in any state – drew a number of careful, and cautious comments from experts in the HR field. All, of course, condemned bullying, but most were rightfully concerned that “caution and care must be taken to ensure that [such a law is] targeted, clearly defined, and differentiates good and positive organizational politics from actual office bullying.”
Many people rejected outright the idea of more laws and regulations, but some acknowledged that “Laws are most often created because people just won’t behave properly,” and “Laws to protect employees would not be necessary if management would appropriately deal with the situation.”
One comment which we chewed on for awhile was that “politeness is often used as a manipulative tool by the powerful to keep the powerless in their place.” Interesting thought that deserves further explication.
Anyway, here are some provocative reader comments:
Geoffrey Mort, an employment attorney in NYC:
“That Justice Scalia dreads the notion of a workplace civility code is a powerful argument in its favor. I agree with Richard that it is probably only a matter of time before some jurisdiction enacts an anti-bullying statute. Such a law would, obviously, need to be extremely carefully drafted.
And, an anti-bullying statute would not represent the earth-shaking event that some would have us believe. Plaintiffs would still face formidable odds in prevailing under most such statutes that one might imagine, and hostile judges would likely dismiss the majority of claims brought under an anti-bullying law. Still, if such a statute helped curb only the most extreme cases of workplace bullying in the jurisdiction where it was enacted, that in itself might make the experiment worth undertaking.”
Marc Brenman, a diversity and intercultural consultant in Olympia Washington:
“Australia and Ontario have anti-bullying statutes, with questions remaining on enforcement. A clear first step is a good definition of bullying. Many anti-bullying advocates use a wild and wide range of meanings, ranging from ‘he looked at me funny to ‘he raised his voice at me’ to “he kept asking me if I had finished my assignment” to ‘he made me cry.’
Some advocates confuse bullying with intentional infliction of emotional distress with already illegal sexual and racial harassment with violence in the workplace. I’ve been advocating that a good place to start with a definition is analogies to sexual harassment, which has well-developed case law. Conditions for judging whether or not it exists include unwelcomeness, severity, frequency, egregiousness, interference with work, perception of a reasonable person, power relations, supervisory position, and creation of a hostile working environment.
While there’s relatively little I agree with Justice Scalia on, I’m also not fond of workplace civility codes. For one, politeness is often used as a manipulative tool by the powerful to keep the powerless in their place. For example, assertive women and African-Americans sometimes get accused of being ‘uppity.’”
Don Hermann, a small business consultant in Appleton, Wisconsin:
“We are overburdened by law and statute. The excessive compulsive disorder that makes someone create a new law every time some real or perceived slight occurs has created a monster resembling the 1950’s movie monster … the Blob. It consumes all common sense in its path.
So called ‘workplace bullying’ is another classic example where at least for now common sense has prevented it from becoming another ridiculous behavior modification statute that will be abused, poorly administered and over encumbering to the workplace.”
Michael Maggioto, an HR expert in Indianapolis, Indiana:
“Often, workplace bullying is an outcome of office politics. Most sensible people agree that a certain type of office politics is necessary, but when the politics are used to exert personalized power through the coercive and referent power bases and where the techniques used include (but are not limited to) attacking and blaming others, using information as a political tool to harm others (creation of poor impression management), development of a base of support at the coalition or network levels again to harm others (furthering poor impression management), then bullying is perceived to be taking place. And, in all reality, it probably is.
Laws to protect employees would not be necessary if management would appropriately deal with the situation and Boards would ensure that anti-bullying policies were part of the company’s code of conduct and clearly defined in their employee handbooks. Further, laws would not be necessary if management never participated in the bullying. This just is not the case. A few bad apples have spoiled the bunch.
I agree with Don in that the number of laws has grown so magnanimous and complex that it is about the point of being out of control. And I agree with Marc (and consequently Justice Scalia) in that creation of a civility code is undesirable. If management all the way up the chain does not implement appropriate actions to curb this negative behavior in the workplace and improve the safety — albeit even the sanity — in the workplace, I am not sure there is much alternative. Laws are most often created because people just won’t behave properly. Not that they cannot, they just will not. And when the poor behavior becomes disruptive to the work environment and the advancement of commerce, then perhaps it is time to consider a law to curb the behavior.
The creation of a law around bullying should not be frivolous by any stretch of the imagination. Mark is right on the money in that sexual harassment case law forms a great foundation on which an anti-bullying law could be based. Caution and care must be taken to ensure that it is targeted, clearly defined, and differentiates good and positive organizational politics from actual office bullying.”