Employees are increasingly bringing the playground into the boardroom. The Society for Human Resources Management’s 2011 survey found that 51% of employers had incidents of bullying in the workplace. A growing number of states have taken notice of this concerning trend. Since 2003, 25 states have considered Healthy Workplace Bills that would let employees sue for workplace harassment without demonstrating that the harassment is based on a protected class such as sex, race or national origin.
In April 2013, Pennsylvania became the latest state to propose legislation prohibiting this conduct. Pennsylvania joins Massachusetts, which introduced legislation in January 2013, along with nine other states with active legislation. The pending bills are all variations of the Healthy Workplace Bill advocated by Healthy Workplace Campaign, an organization started in 2001 with the sole focus of introducing workplace anti-bully legislation.
The Pennsylvania and Massachusetts bills, for example, define an abusive workplace environment as one where “an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm [and/or] psychological harm.” The bills state that physical and psychological harm must be established by “competent evidence” but do not define what that means.
Following the contours of Title VII harassment cases, the Pennsylvania and Massachusetts bills provide that organizations can escape liability by showing they exercised “reasonable care to prevent and correct promptly any actionable behavior and the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.” Both the bills distinguish between victims who have and have not been subjected to an adverse employment action.
If an employer or employee is found to have created an abusive work environment, the bills would permit a court to order any relief that was “deemed appropriate, including, but not limited to: reinstatement of the bullied employee, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages and attorney’s fees.”
To date, no laws have been passed and it’s too soon to tell how courts might apply the laws if they ever get past the legislative floor. Opponents of the bills criticize that they appear to be nothing more than a legislatively imposed civility code. There is also concern that the bills provide little guidance as to what constitutes inappropriate behavior and may expose companies to frivolous lawsuits from disgruntled employees. But the trend suggests that it may only be a matter of time before employers will need to be ready to navigate the murky waters of workplace anti-bullying laws.
So, what should employers do? In order to stay ahead of the curve, employers should always be striving to foster a culture of respect. Such actions could include:
- Institute Anti-Bullying Policies. Although employers should already have harassment and non-retaliation policies in place, those policies are typically tied to protected characteristics and conduct in the context of anti-discrimination statutes. Anti-bully policies could consider a broader range of conduct. The policies should define bullying and provide examples of such unacceptable behavior. Such policies would also communicate a reporting procedure and provide for disciplinary action for violations of the policy. Notably, employers should proceed carefully with policies designed to prevent bullying and harassment on social media to avoid running afoul of the NLRB. See our prior posts on the NLRB’s position regarding social media for further guidance.
- Provide Regular Workplace Anti-Bullying Training. Employers could also incorporate regular anti-bullying training with employees and managers to ensure early detection and prevention. Training with employees could include examples of inappropriate conduct, avenues available to report bullying and scenarios for discussion.
- Provide Support Services. Employers could also consider instituting programs to provide a support network for employees who may be bullied or targets of bullies to prevent and address this conduct. These types of programs include coaching, counseling, Employee Assistance Programs and other wellness programs.