Our debate about workplace bullying and possible remedies continues.  It seems that the consensus is that workplace bullying is ubiquitous and damaging, is not often dealt with by employers, and indeed is frequently unintentionally rewarded by promoting those who exhibit bullying behavior since this behavior may be part of a cluster of behaviors that is perceived as high motivation.

25765389_sBeyond that, the experts who have commented on this debate seem split between those who think that bullying is difficult to define and that employers policing themselves is most effective in combating bullying, to those who feel that new laws or regulations will be most effective – as long as they are clearly and narrowly drawn.

Here is a small sampling of reader opinion.

Alison West, Attorney, and Investigator, Speaker, Trainer and Expert at Employment Practices Specialists, in the SF area:

“I am happy to see the debate continuing.  As I have noted, I will be delivering a program “The Bully and the Bottom Line” on March 18 at the SHRM Employment Law and Legislative Conference in DC.  I speak on the topic because I want HR and employers to understand what bullying is and just as important – what it isn’t, and how devastating it can be to individuals (the targets), witnesses and to overall morale.

My view is – I would prefer that bullying not be legislated. I want employers to take bullying seriously – be proactive, fix their culture if they tolerate abusive and disrespectful conduct and learn how to coach high performing bullies into stopping their inappropriate and harmful conduct. The only way to do that – have a consequence for the conduct.”

Michal Longfelder, Principal at Employment Matters, also in the SF area:

“As much as I wish legislation was not necessary to protect individuals from bullying, I believe the history of Title VII has proven that without the law behind you, it is unlikely that the conduct will cease. Companies didn’t do anything about harassment or discrimination until they could get sued. In addition, while I agree that HR and employers need to better understand what conduct is bullying and, just as important, what is not, it’s much more complicated than that.

In my experience, most bullies are extremely successful in their roles, a/k/a “the superstars” (the same was true pre-Title VII — watch an episode of Mad Men!).  Those who complain are typically viewed as not as dogged in their pursuit of making the company and therefore, their complaints are taken less seriously because companies reward and retain those who bring in the most money.  Lastly, even more than with harassment, victims are hesitant to come forward because of the perceived (or actual) ramifications of complaining.  For me, all of that points to the need for legislation to put a bite behind the bark and a protection for victims.”

William Deveney, an Atlanta area employment attorney:

“Most people seem to agree that bullying (or at least legally-actionable bullying) is not easily defined, and there is a concern among, in particular, employers and their counsel (a legitimate one, in my mind) that legislation, carefully drafted or not, would present a distinct possibility of the filing of many frivolous claims. Even those in favor of such legislation appear to agree that such claims would be filed, and that any legislation creating a cause of action should limit claims to the more serious forms of bullying.

Furthermore, the reporting regarding the Miami Dolphins aside (an atypical workplace, even if you disregard the specific allegations in that matter), I have not seen a great deal of reporting on bullying in the workplace (although, of course, I wouldn’t deny that it doesn’t exist in places). Sadly, most reporting appears to concern our schools and children, although perhaps it is the involvement of the use of social media in many cases that drives the greater reporting in that area.

Nevertheless, as with any legislation, there should be some serious legislative fact-finding, especially one that creates a law that puts the onus on employers to address what are primarily individual failures. While employers certainly can set the tone of their workplace (or fail to do so), most employers first encounter applicants and employees long after their basic personalities have been formed, and yet employer are charged with managing (through very ordinary managers and supervisors) these diverse groups of people. By comparison, our judicial system has been around for so much longer than any of us can remember, and no one could argue that there is any system that is given more power to affect personal behavior; still, human behavior remains relatively unchanged.

It seems to me that tort claims of assault, battery, intentional infliction of emotional distress and others — and, perhaps, workers’ compensation as well — would provide the better legal basis for such claims. (I know that IIED claims are hard to make out in most states, but wouldn’t that actually promote the mostly agreed-upon idea that only the more serious forms of bullying be actionable.) Permitting these long-standing torts to serve as the basis for such claims would leave intact the traditional financial incentives for lawyers to pursue those claims based on the merits as measured by the traditional form of relief, i.e., recoverable damages.”

Geoffrey Mort, a NYC employment attorney:

“I have to largely agree with Michal on this issue (see above).  Although I have seen very little workplace bullying personally or read much reporting about it, the available statistics indicate that it is very widespread.  Tort remedies are woefully inadequate to address this problem.  As William points out, they have been available for a very long time, but have been wholly ineffective in addressing workplace bullying.

The argument for new legislation is that it would make this issue far more visible to employees, most of whom I suspect have never heard of IIED claims, and make it known to them that, at least in severe cases, they do have a legal option available to them if they wish to pursue it. Successful pursuit of a few lawsuits under a new anti-bullying law would be a wake-up call to employers that they need to be less tolerant of such conduct.”

Salvadore Ramirez, Senior Diversity Officer at the Chicago Transit Authority:

“It has been my professional observance that when it comes to “Bullying” most companies have corporate policies regarding discriminatory acts and other inappropriate behaviors. The problem lies not in the policy, but in the enforcement of them. Too often, violators of professional decorum under the level of manager are dealt with quickly and harshly dependent upon the nature of the infraction. Yet, the same cannot always be said when the violator is of a managerial or higher administrative position. Because bullying is not illegal, most corporations do not deal effectively with the variants of this illogical work behavior.

More perplexing is that when complaints are filed against these administrative employees, their protectors defend their behaviors, by stating he/she is a good employee, who is under a lot of pressure by upper administration, he/she are just a bit overzealous, in getting things done. Sound familiar? Worse yet, this blind protection only emboldens these agitators to continue their tirades, firmly believing they are untouchable. There are many studies that show that these same individuals are often promoted because they get the job done, regardless of the carnage they leave behind. So no, personally speaking, enforce your policies, stop making excuses and tolerating unprofessional behavior, which compounds extensive lawsuits, arbitrations, loss of productivity, sick time, etc.”

Jon Green, a NYC area employment attorney:

“As a plaintiff’s employment attorney, I would welcome anti-bullying statutes. But, like everything else in life and the law, the devil is in the details. If a supervisor loses his/her temper and starts yelling at a subordinate because he/she blew a key assignment, could that be construed as bullying? If an employee is off-putting in his/her manner and leads to be shunned, is that bullying?

I and all of you can think of a thousand examples that could make the solution worse than the problem. This doesn’t mean that laws should not be enacted to address workplace bullying but they must be done with extreme care.”

Marc Brenman, an Olympia, Washington diversity expert:

“Although it may sound like a good idea to “investigate” claims of bullying, that’s hard to do without knowing exactly what bullying is. There is no legal definition in the US. An ombuds or alternative dispute resolution system might be better, at least to figure out if what is happening is a bad interpersonal interaction.

We should be really clear that certain situations are not bullying: “He made me cry.” “He kept asking me if my assignment was done.” “She looked at me funny.” “She turned back my work and said it wasn’t adequate.”  And be just as clear that certain acts are actionable– sexual harassment, workplace violence, and intentional infliction of emotional distress, for example. And that others, while serious and not illegal, are probably not in the interests of the organization, such as one employee intentionally putting obstacles in the way of another employee’s getting her work done.

Organizations have different cultures. Some are hard drivers, and a sensitive employee may not be able to keep up. As for this, “the diminishing effects bullying behavior has on the ROI of the talent pool,” maybe, maybe not.  Recall the stories about Steve Jobs insisting on innovative and design excellence. Was he a bully?  Maybe.  But a brilliant, driven, and successful businessperson.  Consequently, many of us own products he helped design.  Did his behavior have an adverse effect on Apple’s bottom line?  Hardly.”