Preventive Strategies for Workplace Bullying


Workplace bullying is mistreatment severe enough to compromise a targeted worker's health, jeopardize his or her job and career, and strain relationships with friends and family, among other things. But HR leaders first need to learn how to recognize the signs of it in order to stop it.


Wednesday, October 10, 2012
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The recent guilty verdict rendered against Dharun Ravi, Tyler Clementi's roommate at Rutgers University, for his harassment of Clementi, the gay Rutgers student who committed suicide after Mr. Ravi disclosed Clementi's relationship with another man, contained 15 counts, including invasion of privacy, bias intimidation and others. It signaled a victory for victims of bullying in the United States. The media attention over the Clementi trial has highlighted the national spotlight on all forms of bullying, including bullying in the workplace.


Workplace bullying is an increasing problem, with a number of significant consequences. This has been exacerbated by a variety of factors, including the increasing amounts of time people are spending in the office, as well as the explosion of iPhones, BlackBerries, PDAs and other electronic devices making work communication much more frequent, at all hours of the day, and less obvious than talks at the water cooler.


Bullying is not mere incivility or rudeness. Bullying is mistreatment severe enough to compromise a targeted worker's health, jeopardize his or her job and career, and strain relationships with friends and family, among other things. Bullying has nothing to do with work itself. Instead, bullying is driven by the bully's personal agenda and actually prevents work from getting done. Moreover, bullying often leads to mobbing -- which is when a group of co-workers target another worker. While bullying is often confused with aggression, they are different. Aggression typically involves a single act, whereas bullying involves repeated attacks against the target that creates an ongoing pattern of behavior.


Some common verbal characteristics of bullying include: flaunting status; shouting; swearing or using foul language; spreading gossip; blaming the employee; threatening job loss; unwarranted criticism; "chilling opinions;" and putting employees down in front of others. Common non-verbal, bullying behaviors include: ignoring contributions; consistent failure to follow-up; excluding employees from meetings and social gatherings; the silent treatment; playing mean pranks; treating employees rudely; and unreasonable work demands.


Recent statistics suggest that workplace bullying is widespread, and even more prevalent when unreported conduct is considered. According to a 2010 Workplace Bullying Institute's U.S. Workplace Bullying Survey, 35 percent of American workers report being bullied now or at some time in their careers; 15 percent of American workers reported observing bullying; 40 percent of targets never tell their employers about being bullied; 62 percent of bullies are men; 58 percent of targets are women; 68 percent of bullying cases involve the same gender bully and target (indeed, women account for 80 percent of bullying against other women); and 43 percent of bullying comes from co-workers (while 36 percent comes from supervisors, 12 percent from customers, 5 percent from subordinates and 4 percent from "others").



The Business Costs

There are direct costs associated with workplace bullying, such as medical and workers' compensation claims. In addition, there are numerous and varied negative effects of employers ignoring bullying, including decreased productivity and efficiency; high turnover; excessive absenteeism; financial problems caused by absences, poor customer/client relations; low morale; increases in resignations/transfer requests; hotline calls and complaints; work schedule changes; reduced self-esteem and family tension. These alarming costs do not even account for the investigation and litigation costs associated with the more serious offenses that may advance into claims or lawsuits.


Around the world, lawmakers have taken note of the problem and several countries -- including France, Germany, the United Kingdom, Canada, Sweden, part of Australia and others -- have put into place laws directed specifically at workplace bullying. However, to date, there is no such federal legislation addressing workplace bullying in the United States.


Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment only on the basis of protected categories, such as race, color, disability, age, religion, gender or sexual orientation. Federal courts have used Title VII as grounds for liability against employers in what amounts to bullying cases under theories of gender stereotyping, hostile work environment, discrimination and retaliation. A California plaintiff was awarded more than $340,000 under a sex discrimination theory even though evidence showed the male supervisor consistently yelled and screamed at all employees, hovered over and invaded employees' personal space, and used foul language. Two Ohio brothers were awarded more than $300,000 under theory of gender stereotyping where their employer failed to take action against male co-employees who picked on them for not being "masculine enough" by grabbing for their genitals, calling them names, being physically hostile and referring to them in homophobic terms (even though both were heterosexuals). Thus, as you can see, in some cases Title VII may provide a legal basis for relief from bullying and the liability can be costly.


On the other hand, a complaint frequently made by victims is that bullying is a "status blind," and therefore these laws may afford little protection unless the victim also happens to fall into a protected category. Alternatively, if the behavior is so severe or pervasive, it may fall under the state law definitions of intentional infliction of emotional distress or other torts such as negligent hiring, retention or supervision, assault, battery and defamation. Although there are limits to these current legal protections, some employees have successfully recovered under state law theories of liability. A hospital medical technician in Indiana received a six-figure jury award from a surgeon who had a history of barking orders with his fist raised, getting "nose to nose" with subordinates, and using foul language as his apparent preferred means of communication. Just this year, the Supreme Court of West Virginia upheld a $2.6 million dollar jury verdict (including $500,000 in punitive damages) against an employer for off-duty conduct that impacted the workplace. The plaintiff claimed she was receiving verbal and physical threats from another employee at her home and requested that either she or the employee be transferred from the work group. The court found that the cumulative effect of the employee's misconduct and the employer's response, including failing to investigate the underlying threats, supported the full verdict.


Since 2003, 21 states have introduced "Healthy Workplace" bills. No laws have yet been enacted, but there are 18 bills currently active in 13 states. The proposed legislation would essentially establish a general "civility code" in the workplace that federal law has long sought to avoid. For example, in New York, the proposed legislation imposes up to a $25,000 fine against employers found liable for bullying, even if no adverse employment action occurred, in addition to creating a private right of action against employers. These proposed laws would significantly expand current protections to prohibit an abusive work environment generally. However, none of these proposed bills have yet been enacted into law. On the local level, 31 cities in California, Ohio, Texas, Virginia, West Virginia, Connecticut, Wisconsin, Massachusetts and Oregon currently celebrate "Freedom from Workplace Bullying Week."


Preventive Strategies


According to the Workplace Bullying Institute, less than 20 percent of U.S. employers have policies prohibiting bullying conduct. To put these numbers in perspective, nearly 80 percent of employers in Australia report they have anti-bullying policies in place.


While there is no federal or state anti-bullying legislation currently, there are a number of best practices to consider adopting to increase the likelihood of minimizing bullying at work.


First, conduct an honest assessment of your workplace.


Ask yourself, "Have the right people been chosen for management or supervisory positions?" Being an aggressive or "driven" producer who consistently manages to bring in top deals does not necessarily mean they have the skills to manage direct reports.


Look at your work groups and ask yourself the following questions: Are there certain groups that show higher turnover, excessive absenteeism, requests for transfers, or requests to change schedules/shifts than others?  If so, determine whether such changes are a reflection of the nature of the work (i.e., high volume and low headcount)? Is there some relation to the people associated with doing the job?


Question whether managers provide deadlines based on legitimate and reasonable factors versus whether deadlines are being imposed for control or power plays?


Consider the manner in which managers and supervisors communicate with their direct reports including, for instance, the volume and tone of their voices or whether they are "yelling" at e-mail recipients with the excessive use of all capital letters, highlighting or underscoring.


Ensure legitimate reasons exist for disciplinary actions, particularly when such action is being taken or recommended by a "driven" supervisor. Be sure the action is based on legitimate, documented factors and are not simply the result of a hypercritical actor.


Employers should also maintain an effective and comprehensive anti-bullying policy that encompasses the following:


1.             Describes appropriate business conduct.


2.             Defines abusive conduct.


3.             Makes a clear statement:  "This company will not tolerate abusive conduct."


4.             Sets forth a reasonable reporting procedure.


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5.             Requires employees to promptly report problems.


6.             Promises no retaliation and prompt and thorough investigation.


7.             Advises violations will lead to appropriate discipline, including immediate termination as warranted.


HR leaders should distribute the company's no-bullying policy widely, conduct training and promote civility and dignity. It is equally important that rank-and-file as well as managerial employees attend the training so managers are equipped to spot and address workplace bullying.


Managers should receive separate training on how to investigate and respond to such complaints, and to ensure they understand that conduct need not rise to the level of "unlawful" to be unacceptable; that the company expects all employees to be treated with dignity; and how to distinguish between high performance standards/work excellence and being abusive.


The training should also include the idea that employee evaluations should attack the performance or behavior but not the individual, and that managers and supervisors sometimes simply need to take a breath before reacting.


It's also important for HR leaders to treat violations of their organization's anti-bullying policy as seriously as they would treat violations of its anti-discrimination or harassment policies.


Other strategies include:

*     Update the company's code of conduct to include language addressing bullying. Have every employee read and sign off on it.


*     Update your company's social media and electronic device usage policies, including those policies addressing iPhones, Blackberries, etc. Remind employees that respectful communications are expected and that obscene and vulgar language does not belong in the workplace.


*     As part of the company's overall electronic communications policies and compliance measures taken by employers, companies can periodically monitor employees' computer usage for adherence to its policies, such as zero tolerance for electronic and other types of bullying, and regular reminders that the company's computer systems and equipment are primarily for work-related purposes. The company's policy should put employees on notice that it reserves the right to periodically engage in such monitoring.


*     Employers who have an employee-assistance program should regularly communicate its benefits to employees. Should bullying, intimidation or similar behavior occur, any adverse consequences can be assessed and minimized, and victims can promptly avail themselves of the services of the EAP program, if needed.


*     Implementing an anonymous hot line so that victims and witnesses can report suspected instances of workplace bullying. If companies already have such a hot line for sexual harassment or other complaints, by including bullying as well, the company can offer another avenue for relief at an incremental cost.


*     Employers must adhere to their policies and practices on hiring. Those without established procedures need to develop consistent protocols. Typically, thorough reference checks and background checks (depending on the job position/title) may be recommended. Failure to establish or adhere to these protocols may expose employers to claims by workplace bullying victims, such as negligent hiring and retention claims, or even more exotic claims such as claims under the Occupational Safety and Health Act's "general duty" clause for failure to provide a safe work environment.


*     Promptly investigate internal complaints.


*     Consider 360-degree evaluations.


But, perhaps most importantly, HR leaders need to tell repeat offenders they have no place in the organization and STICK TO IT.


John A. Snyder is a partner in Jackson Lewis' New York office and Tracie Johnson Maurer is a partner in the firm's Atlanta office.




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