Whenever we write about workplace bullying, or discuss the pros and cons of anti-bullying laws, we seem to strike a nerve in readers – we get more comments on this topic than any other.

Now, with the recent publicity given to sports-figures and domestic violence and child abuse, we anticipate further discussions of the possible antecedents to workplace bullying.

We want to print a couple more interesting reader comments, but first want to recommend an article by one of our New York friends, Randi Melnick, Esq., entitled “Understanding Workplace-Bullying Legislation,” which was published last month by American Bar Association and reprinted on the Healthy Workplace Bill website.   Catch it here:  http://apps.americanbar.org/litigation/committees/employment/articles/summer2014-0814-understanding-workplace-bullying-legislation.html

Randi prefaces her article by saying that “Employees subjected to mean-spirited or degrading treatment can often feel helpless, or even if they are proactive and make a complaint to human resources, they may simply be told to toughen up, or find a new job. With the realities of today’s increasingly stressful and competitive workplace, it is worth a moment of reflection to consider what level of civility should be expected in the workplace, and what the consequences should be, if any, for those who break such codes of conduct.”

She then discusses the “tricky cultural norms” of workplaces, the differing degrees and levels of tact and communication skills possessed by employees, and “difference between a manager or coworker who lacks tact and one who goes out of his or her way to purposefully target an individual. When one is verbally abused or intimidated, when work is sabotaged, or when humiliation is used as a tactic, that is bullying. And it is not always illegal in the United States.”

She notes what we have said many times: “the law has protected categories of people who have been mistreated on the basis of their status in a protected group—whether it be their race, national origin, religion, age, disability, or gender” – but “still fails to protect workers from being mistreated in the workplace where the mistreatment is not based on a protected status.”

We won’t go any further other than to recommend her article if you want a good, solid summary of the “Healthy Workplace Bill,” proposed but never passed, which we have discussed many times.

As for further reader comments on bullying:

Pamela Moore, an HR expert in Portland, Oregon:

“This is interesting because I just had to assist a client in firing an individual who was bullying her coworkers. There was no legal issue we could site, so the termination was more complicated that it should have been. We had to protect the client against action from the fired employee, which hardly seemed fair. But, like I tell my clients, “it’s not against the law to be a jerk.”

But, if left unchecked, bullying behavior can have a profound negative impact on business. In my client’s case, they are a small business. Things finally came to a head because customers were noticing the bad behavior, good employees were ready to quit, and a potential business partner refused to join the firm until the bullying employee was removed. It shouldn’t get to that point.

If bullying can’t be remedied through legal action, then it has to be nipped in the bud as a performance issue. Just because it’s not illegal, doesn’t mean that it’s acceptable.”

Susan Oleson, an HR expert in the San Diego area:

“It’s not against the law to be a jerk, but it can be against company policy which supports grounds for termination.  I added a Workplace Bullying Policy to my company’s Employee Handbook recently and it is specifically reviewed at every monthly new hire orientation along with the Harassment Prevention policy.”

Brit Weimer, an attorney on the Minneapolis-St. Paul area:

“While general bullying is not against the law in the U.S., prudent employers will still reduce bullying to reduce the risk of litigation.

First, almost every employee is in some protected class. Thus, with the guidance of a plaintiff’s lawyer, most employees can state a general claim that they were bullied because of their protected-class status. (Often these claims are too vague to be legally actionable, and they are subject to dismissal. But there are still the costs of defense …)

Second, victims of bullying have low job satisfaction, and are eager to sue.”

Leonard Brazil, an LA area attorney:

“A new California law which becomes effective next year requires employers with 50 or more employees to include “prevention of abusive conduct” as a component of the sexual harassment training which must be provided to supervisors every two years.   Interestingly, such abuse prevention training is being required even though California has no law declaring bullying in the workplace illegal.

The new law appears to be a sign of what’s to come.”

Fran Sepler, an HR consultant in the Minneapolis-St. Paul area:

As the court noted, there is no place in the workplace for bullying or harassment, but, having been immersed in this issue for well over a decade, I am not persuaded that legal prohibitions are the way to address abusive and uncivil behavior in the workplace. Employers can implement their own policies, as the University of Massachusetts recently has, that set the expectation of fairness and reasonableness clearly, and then enforce those expectations with specific criterion and analytics.

It really is within the capacity of most organizations to insist that individuals not behave in a manner that interferes with the productivity and engagement of others for no reason or any reason, and to make that insistence distinct from the necessary feedback and occasional tough messages that are inherent in the process of performance management and behavioral guidance.

My concern is that those attracted to legal solutions are only occasionally those who have been so damaged, and the employer so non responsive that only the court can provide relief. Rather, it is the individual who has become disaffected from the organization and hopes to extract “a pound of flesh” who is likely to persist through the various steps and long time frame inherent in litigation.

This is not to say that bullying does not cause pain or create a hostile environment for those involved. The insidious part of bullying is that the more you are bullied, the more you tend to look like a “bad” employee– increased absenteeism, withdrawal, hyper vigilance, disengagement are all part of the complex of being bullied…but courts only provide relief after the damage has been done, while employer policies provide the opportunity for intervention and remediation while the target is still employed, at least partially engaged, and, more than anything else, can build greater faith in their employer for enforcing a policy rather than becoming adverse to the employer while no longer employed.”

Charles A. Krugel, a Chicago employment attorney:

“The faster that the business sector credibly responds to the bullying issue, the easier it will be to persuade Congress not to pass legislation on bullying. Moreover, I suspect that employee turnover, absenteeism, etc., will decline if bullying is properly addressed by businesses.

On the other hand, my caseload should greatly increase if Congress passes such legislation because plaintiffs’ attorneys will love this legislation & litigation will drastically increase.

From an HR management standpoint, anti-bullying has moved beyond regulating civility & has become a risk assessment factor to be assessed when purchasing EPL type insurance & increasing training for employees.”