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EMPLOYMENT LAW: Anti-Bullying -- A New Era In Workplace Civil Rights?
Outrageous examples of workplace bullying are making headlines, just as stories of huge discrimination cases and verdicts once did. Will state or federal government outlaw the behavior? Should your company outlaw it now?
Whatever happened to the playground bully we all encountered at some point during our childhood? Many American workers would likely answer that the youthful nemesis traded in a kickball for a briefcase and showed up in a managerial capacity at work. The seeds of discontentment are being sown, and a new civil rights era, potentially more powerful than ever seen by U.S. employers, may be approaching -- the anti-bullying era. In fact, 13 states -- California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Washington and Vermont -- have already introduced anti-bullying legislation, commonly referred to as "The Healthy Workplace Bill." Although no such legislation has yet been signed into law, momentum seems to be gaining. Activists believe the time is ripe for anti-bullying legislation because current civil rights laws prohibiting discrimination based upon race, color, sex, national origin, disability and age can do little to rein in the equal-opportunity bully. Most employees and employers alike will agree that the civil rights laws of the 1960s (which were revised and revitalized in the 1990s) have made large strides toward achieving their objective of ridding the workplace of discriminatory behavior. This view is reflected in the declining number of charges filed with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act (ADA) and the Equal Pay Act. According to the EEOC's enforcement statistics, 75,768 charges were filed in 2006. That number represents a significant drop from the 91,189 charges filed in 1994, shortly after the Civil Rights Act of 1991 was passed. Indeed, review any federal court docket and you will see that employment-discrimination cases overall are on the decline. Despite such statistics, however, objectionable and disruptive behavior continues to thrive in many workplaces. Almost every time I give a speech or presentation to groups of HR professionals, I hear accounts of the brilliant surgeon, the top-producing salesperson or the departmental leader who is extremely competent but whose behavior is out of control. The person screams at team members, publicly humiliates people and treats colleagues with arrogance or condescension that is eroding the environment. No one wants to say anything because, after all, he or she is highly qualified and might leave if someone tries to address the behavior. In fact, the conduct is sometimes excused or even viewed as a perk of the job -- a reward for paying one's dues and achieving success. What is going on here and what should companies do, lest the government tell them what to do?
Widespread, But Ignored Unprofessional -- though presently not illegal -- behavior of this sort rears its ugly head in many of our country's finest companies. While organizations have done a fairly good job of addressing discriminatory behavior that is prohibited by Title VII, the ADEA, the ADA and other such civil rights statutes, less attention has been paid to bullying behavior. With no apparent legal violation occurring, organizations have been slow to implement measures and policies to prevent and address workplace bullying. As recent trends indicate, however, companies that don't begin to do so of their own volition may well have the government mandating such changes in the near future. This turn of events would follow the same course we saw with the evolution of the civil rights laws. We need only turn on the television or open a newspaper to see stories of tyrants in every level of business and government whose bluster, intimidation and loutishness have been tolerated for fear they would take their skills, business or technical expertise elsewhere or ruin the careers of those who tried to bring their misdeeds to light. The examples are everywhere: executives and supervisors who scream, sarcastically demean or ignore their employees in public; managers who take credit for others' work and create their band of favored "untouchables;" and high-producing "big shots" who work at the edges of workplace rules and stifle dissent or questions about their conduct. In every region and industry sector, employees are leaving organizations because they refuse to be subjected to such behavior, yet leaders continue to find excuses to avoid dealing with the problem. These excuses range from "we can't afford to lose this 'high-performing' person" to "at least the behavior's not illegal." The narrow-mindedness of this view is detrimental to the organization and its employees. When individuals fear retribution from abusive managers or are distracted by screaming colleagues and other outrageous conduct, the business mission is ultimately compromised. Combined with reputation-spoiling headlines and an exodus of the best and brightest, the true damage to a company can be enormous. I often ask, "Can you really afford to keep this person?" For now, though, those leaders are right about one thing: Our present laws are insufficient to address bullying behavior. Such conduct can be remedied under Title VII only if a resourceful plaintiff's lawyer can successfully characterize the objectionable behavior as "because of" the plaintiff's sex, race, national origin, etc. In Oncale vs. Sundowner Offshore Services Inc., the United States Supreme Court explained that Title VII is not a "general civility code." Rather, it only acts to prohibit harassment that is based on an individual's race, color, sex, religion or national origin. It does not proscribe any acts of the "equal-opportunity harasser." As a result, the workplace bully who torments everyone -- regardless of race, sex, etc. -- enjoys an expansive playground in which to carry out his or her unprofessional conduct. In much of Europe, bullying laws have been enacted to address such behavior, and significant lawsuits have been filed and publicly won. Keeping in mind that European employees are generally regarded as less litigious than their American counterparts, imagine the massive influx of litigation American employers could face if anti-bullying legislation is passed -- at either the state or federal level -- and no prior steps have been taken to prevent and correct such conduct.
An Expensive Proposition A bullying lawsuit promises to be much more expensive than prior civil rights lawsuits. Generally, a supervisor who manages by bullying does not reserve these management "techniques" for only a select few employees. Because it is the essence of his or her management style, the supervisor bullies all of his or her subordinates. As a result, a lawsuit would not be limited to one employee, but instead would likely be comprised of several plaintiffs or perhaps even be structured as a class action. Nearly every subordinate of this individual might testify that he or she employed bullying techniques as a modus operandi of managing employees. Thus, it could be extremely difficult to mount a successful defense against such corroborative testimony. What's more, most jurors will likely have experienced or witnessed workplace bullying and will be eager to take advantage of an opportunity to send a message to organizations that fail to protect their employees from the abuse. Indeed, juries routinely return verdicts for sexual and racial harassment plaintiffs that are upward of hundreds of thousands or even millions of dollars. The Civil Rights Act of 1990 offered employers some protection from such verdicts and set caps for compensatory and punitive damages. But bullying laws will not necessarily mirror these caps. With the right set of facts, it is certainly possible to believe that a bullying verdict could reach the million-dollar range. With the prospect of legislation and talented plaintiffs' lawyers taking control of this situation down the road, organizations would be well advised to act now to rein in disruptive behavior in their workplaces. Leaders need to recognize the problem, take it seriously and take the steps to deal with it. They must be willing to draw the line in the sand and decide that complying with organizational values and standards of behavior is as important as complying with the law -- because whether illegal or not, bullying behavior can have just as devastating an impact on the work environment as sexual or racial harassment. Going forward, job competence must be defined not as achieving top results at any cost, but rather as achieving top results without causing other employees to quake with terror. This means people who work or manage by bullying are not competent -- at least, not if interacting professionally and civilly is part of the definition of competent performance. With training and proper role modeling, some workplace bullies may be able to correct their behavior. Those who cannot sufficiently alter their conduct to meet organizational standards and values should be dealt with as an employer would deal with any other incompetent employee who does not respond to training -- termination. It's fairly likely that jurors won't be sympathetic toward an organization that retained an individual and allowed the person to terrorize colleagues simply because he or she was a top producer. As we have seen with civil-rights laws, in every instance when new laws are passed, they are in direct response to burning issues and answering overriding needs for change. The same is likely to be true of bullying behavior. If organizations take action now to curb this disruptive, albeit legal, conduct, they just might prevent the wellspring of support that could lead to potentially unnecessary new laws. In doing so, they'll also help foster inclusive, ethical and civil workplaces, the kinds of positive environments in which to compete and thrive. Stephen M. Paskoff, Esq., is the founder and president of ELI, a training company that teaches professional workplace conduct, helping clients translate their values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce legal and ethical risk. He pioneered the development of interactive, engaging training that addresses fair employment issues by providing practical skills people can apply every day at work.
Paskoff, who is co-chair of the American Bar Association's Compliance Training and Communication Committee, is a recognized speaker, author and expert in helping companies build cultures that foster fairness, ethics and integrity. Prior to establishing ELI in 1986, he was a trial attorney for the U.S. Equal Employment Opportunity Commission and a partner in a management law firm. He is the author of the book Teaching Big Shots to Behave and Other Human Resource Challenges.
November 19, 2007 Copyright 2007© LRP Publications |
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