Ten states currently have legislation pending that, if enacted, would represent a seismic shift from existing laws intended to protect employees in the workplace. As of May 2007, versions of “anti-bullying” legislation are pending in Connecticut, Hawaii, Kansas, Missouri, Montana, New Jersey, Oklahoma, Oregon, Vermont and Washington. In Massachusetts and New York, lawmakers have introduced legislation to study the issue. Such legislation would make it unlawful to “bully” at work. Anyone, regardless of color, creed, nationality, or sex, is both a potential beneficiary and target of the new legislation. While it does require a showing of ‘malice,’ this legislation requires no proof of discriminatory animus. Presumably, the “bullying” could be motivated by something as simple as a personality clash and legal redress would still be available.
The proposed legislation’s language raises more questions than it answers. In Connecticut, the legislation would create a new private cause of action for subjecting an employee to “abusive conduct” in the workplace. An employee is deemed subjected to “abusive conduct” when the behavior causes material impairment of the employee’s physical or mental health, as documented by a healthcare provider or a paid expert. “Abusive conduct” includes even just a single act of “an employer or employee in the workplace, with malice, that is unrelated to an employer’s legitimate business that a reasonable person would find hostile or offensive . . .”
Given the vagueness inherent in the legislation’s language, it is worth considering some examples of conduct the legislation’s author hoped to address. Professor David Yamada has cited to two cases, among others, as examples of “typical workplace bullying” or “garden variety bullying.” As one example, he cited to Turnbull v. Northside Hospital, Inc., a case in which an employee alleged that her supervisor engaged in abusive conduct on four occasions. Specifically, her supervisor purportedly ‘glared’ at her with ‘anger and contempt,’ cried, slammed her door and snatched phone messages. In another example, Denton v. Chittenden Bank, the employee complained that his supervisor, among other things: occasionally interrupted his business meetings without knocking; turned off his office telephone at times to minimize distractions; scheduled early morning meetings that interfered with his car-pool arrangement; made revisions to memoranda he considered final; and insisted that his office door remain open.
According to the co-founder of The Workplace Bullying & Trauma Institute, “the real value of having a law in place for bullied employees is to legitimize targets’ complaints . . .” He has it backwards. It is when a class of individuals has a legitimate complaint, and needs to level the playing field, that laws are made. Laws are not created to assuage hurt feelings.
Furthermore, courts are not the appropriate forum for handling these civility disputes. Our judicial system is already top heavy with employment litigation. Courts have repeatedly cautioned that they are not, nor should they be considered, “super personnel departments.” Instead, complaints of workplace bad behavior should be handled by Human Resources Officers who are best equipped to investigate such matters promptly, thoroughly, and fairly, taking into account so many factors that a court neither has the time, nor the inclination, to consider.
However well-intentioned the legislation may be, it also fails to account for the fact that redress is already available for the vast majority of bad behavior in the workplace through Title VII and other anti-discrimination laws; existing common law tort theories, such as constructive discharge; and claims for assault, battery, defamation, and workers’ compensation. Additionally, there is self-help. Employees feeling abused can complain to Human Resources; and if they remain unsatisfied, they can quit.
The United States has always prided itself on its rugged, even idiosyncratic, individualism. At a time when corporate America at least purports to celebrate diversity in the workplace, it is ironic that legislation is being considered which, if passed, would serve to clone workplace behavior. It is all the more curious that this legislation is being considered now when employers are increasingly stepping up their own internal governance procedures to protect employees from any unwelcome conduct in the workplace, not just discriminatory conduct.
So why this call for legislation which would make “bullying” illegal? At least in part, it appears linked to a disturbing societal trend: the idea that once employed, always employed, absent extenuating circumstances. Such a trend towards employment entitlement is perilous and must be resisted. Ultimately, employment decisions, however painful they may be, should be based on merit. To effectively reward merit, employers must have wide latitude in effectively managing their workforces. That necessarily entails direct, even uncomfortable, communication.