Workplace Bullies May Become Employers’ Legal Problems
After all the U.S. media focus on schoolyard bullies in recent years, I’m glad to see a growing awareness of what those playground pugilists may grow up to be: abusive bosses. Prof. David Yamada and a growing chorus of researchers are out to change that by making workplace emotional abuse illegal in the Unites States. Among a host of other good reasons, Yamada wants to save lives.
He is a law professor at Suffolk Univ. in Boston and director of The New Workplace Institute. According to a version of his proposed law introduced in the Massachusetts State Senate last year, “Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone.” Posts on his blog, Minding the Workplace, report on two suicides apparently resulting from this kind of abuse. One describes the recent death of an academic journal editor after alleged bullying by his boss, detailed by The Hook, a weekly newspaper.
Versions of Yamada’s bill have been introduced in 15 states and passed by two senates. Though that’s as far as they have gotten, I think it’s likely the United States will eventually catch up to countries like France and Sweden that have national laws against workplace bullies.
Yamada described the law in a speech at the Univ. of Augsburg back in April. The law would make it illegal for an employer to “subject an employee to an abusive work environment” with conduct such as “derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit an employee’s known psychological or physical vulnerability.” To break the law, the bully must have intended “to cause pain, injury, or distress” and have caused mental or physical damage. Though aimed at repeated abuse, it says a single very bad example could be enough.
If this language sounds vaguely familiar, that’s because much of it is taken directly from sexual harassment laws. Because of those you may think bullying is already illegal, but Yamada makes the case that existing laws do not cover general abuse. For example, if the insults mentioned above related to your gender or religion, they might break anti-discrimination laws. Otherwise, almost anything goes legally.
Managers should note that as with discrimination laws, not only the abuser but also his or her employer could be sued if this law passed in your state. A court could order an employer to take a number of actions including firing the bully, and paying back pay to a victim who quits because of the abuse. Employers would have some protections, again modeled on sexual harassment law. If the employer tried to fix the problem, or had a system to address it that the victim did not use, that would be a valid defense. Damages for emotional distress would be limited to $25,000, and punitive damages would not be allowed. The law also would include defenses to protect the employer from false claims, for example from a worker fired for other, valid reasons.
I suspect some readers will come up with reasonable objections along the lines of employer rights and the idea that the victim could just quit. I understand the thinking, but recognize the exact same arguments were made against sexual harassment laws 20 years ago and racial discrimination laws 50 years ago.
How sad that we have to even consider resorting to laws to make some managers play nice. I recall sitting stunned in a Seattle Chamber of Commerce committee meeting some years ago after the head of a builder’s association argued against better workplace safety rules because “nobody wants their people to get hurt.” His argument was logical, based not only on moral grounds but financial ones. I was stunned because there is massive evidence that wanting to save money in the short term regularly stops employers from investing in long-term savings through problem prevention. As evidence I present recent mining disasters, BP’s little problem in the Gulf of Mexico, and thousands of other citations in the public record. Please forgive this blatant plug, but my teamwork training and coaching services could save almost every business team in the United States many times more money than my services cost, yet I have room for more clients.
If you are a manager and know of someone causing strife on your staff, you already have a host of reasons to confront the behavior. Yamada writes, “there is strong consensus that bullying and related behaviors can be very costly for employers. These factors include:
- “Reduced productivity
- “Reduced employee loyalty
- “Increased absenteeism and related costs of medical premiums, workers’ compensation, and disability payments
- “Increase attrition and related costs of hiring and training
- “Greater risk of employee lawsuits, even in the absence of specific legal protections…”
The day is probably coming when ignoring the problem becomes yet another way to beg for a lawsuit. More importantly, any ethics book will tell you ignoring it is wrong, especially when suicide is a possible outcome.
Are you the type of person who gets people upset but believes “in telling the truth straight out, and if they can’t handle it, that’s their problem?” Or who enjoys insult humor and practical jokes at work? Or curses a lot more than your co-workers do? As with sexual harassment, it doesn’t matter whether you think your behavior is abusive. What matters is whether the other person does. Start looking inside yourself now, because you don’t want a judge doing it for you later.
Action Item: If you’re not sure whether you or someone you manage is abusive, or what to do about it, drop me a line or give me a call: 1-919-414-8939.
Sources: The following sources (and more) are all available free on “David Yamada’s ‘Papers’” page:
- “Crafting an American Legal Response to Workplace Bullying: The Healthy Workplace Bill”
- “Is There a ‘Business Case’ for Workplace Bullying Legislation?”
- “Massachusetts Senate Bill No. 699″ (2009-10 Session)
- “Workplace Bullying and American Employment Law: A Ten-Year Progress
Report and Assessment”
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