Workplace bullying is real, but lawmakers must respond carefully
For some, the workplace is a battlefield. Bosses yell, colleagues threaten — all in the name of winning in the marketplace. But there is a meaningful difference between the normal strains of everyday work and the systematic targeting of colleagues for ridicule or abuse. The questions facing Massachusetts lawmakers are: Can that line between normal conflict and bullying be defined? And should the state set that definition by law, or let companies find it on their own? For now, it’s best to require companies to get a grip on the problem before imposing a legal cause of action.
Studies show that workplace bullying can do great damage to victims, just as high school bullying does. Close to one third of Americans have suffered abusive conduct at work, while another 20 percent have witnessed it, according to a 2014 Zogby poll conducted by the Workplace Bullying Institute. These situations may force targeted workers to choose between their emotional and economic well-being. In some cases, it’s easier to quit school than quit a job that pays the mortgage.
Consider Deb Caldieri’s case. She was one of the few teachers at South Hadley High School who openly criticized the way the school dealt with 15-year-old Phoebe Prince’s suicide. Subsequently, officials excluded Caldieri from Prince’s funeral, reprimanded her for posting about Prince on Facebook, and accused her of not reporting the 15-year-old’s bullying. (Prince’s parents credit the teacher as one of the few who stood up for the late teenager.) Caldieri was ultimately forced out of her job. While existing state or federal law covers workplace harassment motivated by race, ethnicity, gender, age, or sexual orientation, other mistreated employees are left unprotected against abuse.
That’s why state lawmakers in Massachusetts and elsewhere have introduced bills aimed at prodding employers to take the matter seriously, or face serious consequences. There are currently 24 active bills against workplace bullying in 15 states and the US Virgin Islands. Recently, Tennessee became the first state to enact a workplace bullying law, although it applies to the public sector only. (The law gives all government employers in Tennessee an incentive, but not a mandate, to adopt a policy against workplace bullying.) In 2005, Massachusetts was the sixth state to introduce the Healthy Workplace Bill , sponsored by state Representative Ellen Story. The legislation would allow a victim to sue a fellow employee, their employer, or both. If the offending party is found liable, a court may mandate reinstatement, back pay, medical expenses, and compensation for pain and suffering, among other damages.
The bill exempts employers if they can prove they acted promptly to correct any abusive behavior. The bill also attempts to distinguish between frivolous claims and legitimate abuse, disregarding potential complaints by workers who have been reprimanded, demoted, or fired based on poor performance, misconduct, or economic necessity, among other legitimate reasons.
“We’re talking about repeated and targeted instances of malicious behavior designed to undermine someone, or drive him or her out of the workplace,” says David Yamada, director of Suffolk University Law School’s New Workplace Institute and one of the writers of the bill. Adds Story, “This is not someone having a bad day and yelling at someone.”
Nonetheless, it’s unclear whether judges and juries will be able to make those distinctions. In one context, excluding a colleague from a meeting is a normal decision; in others, it could be interpreted as ostracism. The Associated Industries of Massachusetts argues that Story’s legislation could become a tool for disgruntled employees to strike back at their bosses or seek settlements simply upon the threat of litigation.
The bill “represents an attempt to create a narrow, legalistic solution to a broad societal problem that employers are already addressing through training, education, and leadership,” says Christopher P. Geehern, executive vice president of AIM. “Bullying is not only an emotionally charged term; it is also a hopelessly subjective term.”
There is a middle ground between leaving companies to handle the issue on their own and creating a new cause of legal action. State Representative Keiko Orrall, for one, suggests an approach like Tennessee’s, which creates incentives for companies to develop plans to handle bullying cases. Until there is more statewide data on how exactly Massachusetts companies are dealing — or not — with workplace bullying, it’s hard to know which approach is best. Legislators should gather more input from employers. At least until the legal contours become more clear, a solution based on forward-looking human resources policies would be preferable to the Legislature attempting to precisely define the difference between workplace conflict and workplace bullying.