A universally accepted definition of Workplace Bullying would help stakeholders sort out a complex issue that undermines productivity and occasions public and private health issues and has economic and social consequences.
The term has evolved into a catchall for many different forms of interpersonal strife at the workplace. Depending on where one stands, the cartoon version of workplace bullying describes heartless companies and psycho-bosses victimizing hapless employees who are only trying to make a living on the one hand and perfectly reasonable bosses dealing with lazy and overly sensitive employees on the other.
The truth lies in the middle. Advocates, victims, lawmakers and employers find themselves standing in the middle of a sea of gray with black or white blurry concepts presumed to exist beyond the horizon.
Curbing Workplace Bullying requires understanding the nature of the beast and efforts on two fronts: business culture and the law. The definition I suggested in “Defining workplace bullying” delineates a clear line between criminal and tortious behavior on the one hand and situations best addressed by company policies.
There’s s a big difference between asshole bosses and coworkers (don’t blame me that’s the technical term) and deliberate behaviors or policies that lead to personal injury, economic injury, and defamation.
Dealing with the former requires social and economic pressure to foster a culture of respect and drafting clear policies with meaningful consequences. The latter falls squarely in the realm of intentional torts.
Victories on the cultural front are arguably more effective than laws because they deal with untoward situations proactively. Therefore problems do not become criminal or tortious. Laws on the other hand, deal with the problems after the fact.
That’s the crux of the argument of my definition. Efforts to curb workplace bullying advocacy are more likely to succeed if new laws can trace their roots to existing laws. That imbues the changes with a sense of evolution rather than a radical departure. My definition gathers the core tortious effects of workplace bullying into one place: personal injury, economic damage, and defamation.
Some may complain that drawing distinctions between tortious or criminal behavior and being an asshole unfairly burdens accusers with an unfair legal standard. Either way the accuser has the burden of proof.
Nevertheless, no one will pass laws which allow the employment equivalent of the McDonald’s hot coffee lawsuit or the “Twinkie” defense.
As I said in, “Defining Workplace Bullying,” changes to the laws need to deal with the burden of proof by leveling the employment law playing field. Right now the burden is completely on the accuser.
It’s been suggested that proving intention really raises the bar. But that does not really come into play except in determining damages rather than proof of responsibility. The two standards in defamation, for example, are negligence and “actual malice.” Each has its own tests and burdens of proof.
Proof of responsibility is a lot easier. Once the effects established and agreed upon. Arguments center around determining who caused the injuries or whether the company or individual could have prevented the injuries in the first place. Like it or not negligence and actual malice are very different and the latter is extremely difficult to prove.
Once we can agree on what is and isn’t tortious, the rest falls into place. I’d like to see legislation that requires ALL companies to have:
- Written protocols for termination.
- Written protocols for dealing with workplace bullying.
- A level playing field in employment law.
- A level playing field for establishing fault