You may know, or have experienced behavior from an “equal opportunity bully” or a someone who bullies without regard to race, gender, sex, national origin, etc. However, many states have enacted or introduced anti-bullying laws. While anti-bullying laws are a newer concept, “equal opportunity bullies” may become a thing of the past.
“Workplace bullying is repeated mistreatment of an employee by one or more employees; abusive conduct that is: threatening, humiliating, or intimidating, work sabotage, or verbal abuse.”[1] This type of behavior not only impedes productivity, but lowers morale within the office, and can result in victims or other employees not reporting misconduct.
Maybe you haven’t seen or experienced this type of behavior, but 19% of Americans are bullied, another 19% have witnessed bullying, and 60.4 million Americans are affected by it.[2] Targets often include technically skilled workers that are well-liked, who are honest, non-confrontational, and even whistle-blowers.[3] These qualities can also lead the victim to not report the behavior at issue.
Although workplace bullies may act alone, workplace structure can contribute to bullying behaviors.[4] This includes: (1) a workplace that has “zero-sum competition” that put employees against each other with only one winner and many losers; and (2) employers that ignore bullying behavior or signs of bullying, and promote and reward the bullies for their non-bullying behaviors.[5] This could include keeping high level employees after their bullying behavior is exposed, due to their importance within the company.
Federally, a person cannot engage in bullying behavior if motivated by things like race, sex, gender, national origin, age, disability, or other protected characteristics. Aside from this, employers are not required, either federally or in most states, to outline policies against generally abusive behavior. Currently, 20 states have not enacted nor introduced a bill regarding workplace bullying.[6] However, 26 states have introduced anti-bullying bills, with 4 states: California, North Dakota, Tennessee, and Utah.
California’s law, enacted in 2014, does not make bullying illegal. Rather, it requires that private employers with 50 or more employee provide 2 hours of training on sexual harassment and prevention of abusive conduct.[7]
North Dakota’s law, enacted in 2015, does not outlaw abusive behavior or workplace bullying either. Instead, it only mandates that state agencies and institutions must clearly define harassment and specify the responsibilities of the employee, supervisor, agency, department, and/or institution.[8] If the agency or institution does not adopt a policy, it will be subject to the policy adopted by the state.[9]
Tennessee’s law, first enacted in 2015 and then expanded to cover private employers in 2019, provides employers with immunity from an employee’s abusive behavior if the employer implements an anti-bullying policy that prohibits “abusive conduct.”[10] Additionally, the policy should prevent retaliation against any employee reporting abusive conduct.[11] Under the law, abusive conduct is defined as acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.[12] This includes repeated verbal abuse, non-verbal or physical conduct that is threatening, intimidating, or humiliating nature, or sabotage.[13] However, the caveat is that this law does not create a private right of action for bullying.
Utah amended a prior law so that the terms “retaliatory action” and adverse action” included engaging in abusive conduct, while also prohibiting an employer from taking adverse action to employees that report abusive conduct. Abusive conduct means verbal, nonverbal, or physical conduct of employee to another employee that a reasonable person would find is intended to cause intimidation, humiliation, or unwarranted distress, or results in substantial physical or psychological harm as a result, or exploits an employee’s known physical or psychological disability.[14] This law only applies to public employees.[15]
While many states have no law prohibiting bullying, allowing bullying is bad for business. Be ahead of the curve and update your policies and practices to ensure bullying in the workplace is not tolerated. If there are any problems, give us a call.
[1] 2017 WBI U.S. Workplace Bullying Survey. Workplace Bullying Institute (June 2017) available at https://www.workplacebullying.org/wbiresearch/wbi-archive/#2017.
[2] Id.
[3] Who Gets Targeted. Workplace Bullying Institute (last visited March 5, 2020) available at https://www.workplacebullying.org/individuals/problem/who-gets-targeted/.
[4] How Bullying Happens. Workplace Bullying Institute (last visited March 5, 2020) available at https://www.workplacebullying.org/individuals/problem/how-bullying-happens/.
[5] Id.
[6] State Activity. Healthy Workplace Bill (last visited March 5, 2020), available at https://healthyworkplacebill.org/states/.
[7] Employment discrimination or harassment: education and training: abusive conduct. AB No. 2053 (2014).
[8] State Law: Sec. 54-06-038 of the North Dakota Century Code (2015).
[9] Id.
[10] Shea, Kara E., Tennessee Bullying Immunity Law Expanded to Private Employers. Butler Snow (May 20, 2019), available at https://www.butlersnow.com/2019/05/tennessee-bullying-immunity-law-expanded-to-private-employers/.
[11] See Shea.
[12] Conference Committee Report on House Bill No. 1981/Senate Bill No. 2226 (2014).
[13] See Shea.
[14] Workplace Abusive Conduct Amendments S.B. 214 (2016).
[15] Id.