There are currently no laws against workplace bullying in any state within the U.S., although 25 states have had such laws introduced within the last number of years (all voted down), and it is only a matter of time before such laws likely become enacted.

Justice Scalia commented in one Supreme Court case (Oncale) that the anti-discrimination laws such as Title VII did not enact a “civility code” in the workplace.  If anti-bullying legislation is enacted this would be a first step to such a “civility code.”  Is this a good idea?  So far, half the states did not think so – but that was then and this is now.

Nobody likes or condones bullying.  Employers have much to be concerned about when it comes to workplace bullying: all studies point to decreased morale, decreased job satisfaction, increased absenteeism and an overall decrease in workplace productivity, to say nothing about the personal toll bullying takes on the bullied.  But what will be the effect of anti-bullying laws? How will they be written so as not to be overbroad and subsume normal workplace interaction? And how will they affect the employer-employee relationship?

It is interesting to note that the new NFL/Martin report discussed by Ellen Cobb in our recent post lists a number of authoritative articles on bullying which the investigators considered – and not one was a legal article. Nor did we see a single legal case cited – a rarity for lawyers in any situation.

But the point is that there is no legal precedent in the U.S. so that the only authorities considered are social scientists and workplace psychologists.

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  • SusieCreamCheese

    Please note that Ontario, Canada has extensive legal precedent and laws on Workplace Harassment and Bullying. Look North!!

  • rcohenfox

    accept

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • michae1803

    Workplace bullying that is a consequence of a protected characteristic clearly is illegal. The marketplace will punish companies that allow other types of workplace bullying. We need not pass laws to cure every ill that arises — unlike our esteemed brothers and sisters to the north.

  • rcohenfox

    Accept.

  • HR Woman

    Good business should not rely on the law to do the right thing. History demonstrates that law drags sorely behind what’s right…look at FMLA and discrimination laws as two easy examples. Were we really OK with those offenses until a law was passed? We have control of the workplace through policy – write one that reflects your culture and desired work environment and enforce it. I don’t need a judge or legislators to help create a civil workplace – I need a policy, disciplinary action, well trained leaders, and solid recruitment/screening on the front side…

  • rcohenfox

    Accept.

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • Yes, in a perfect world, businesses would see how stupid it is to allow EOBs (Equal Opportunity Bullies) to thrive under their protective enabling, despite repeated reporting of inappropriate incidents. And yes, I am so glad to hear HR and others calling for clear policy –along with enforcement of it.
    But we live in a far from perfect world. Like I need to tell you that! As a plaintiff-side employment lawyer, I cannot tell you how many calls I get from employees suffering under the constant shaming, demeaning, temper tantrum, throwing objects, humiliating, requiring permission to use the bathroom , sadism of EOBs. One place had a history of paying out generous severance payments to a succession of super employees who called it quits on working with the sadistic top manager. It’s pretty clear that often the EOB needs help, not enabling by top management too chicken or disinterested to deal with the problem. Ultimately we all pay for this enabling stupidity on a lot of levels in terms of the lost productivity and the well being of our country and its ability to compete in the global marketplace.
    I think it is possible to create a standard which does not inhibit workplace cultural differences yet bans bullying at work. We do it all the time. Law is all about controlling behavior toward acceptable norms. Adults spend most of their time at work. Why do we turn a blind eye to EOBs at work, but not at school and on social media?
    Ultimately I think the problem requires a multi-faceted solution: ENFORCED business policy AND legislation–maybe with some tax incentives thrown in for good measure!

  • rcohenfox

    Accept

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/