Defining Workplace Bullying

Defining workplace bullying presents significant challenges for employers and employees alike. The word “bully” conjures images of the schoolyard and name calling and therefore trivializes a very real problem in the workplace.

People all too frequently find themselves trapped in a toxic environment in which bosses, company cultures, and colleagues can make the workday a living hell. What’s more that can extend beyond the time spent on the job and affect families and the target’s health.

Get a new job! That’s what most people say. In a simple world, that’s the best solution. However, that may not be possible owing to a variety of reasons like a scarcity of jobs or deep roots in a community.

For me there’s a difference between a demanding or difficulty personality at work and someone who intentionally and systematically seeks to harm a person.

Within a certain spectrum of behavior, demanding or jerk bosses, aggressive and/or scheming colleagues, and being excluded from  “the group” do not rise to the level of bullying. Likewise, different professions have different cultures, behaviors, and rigors. What may be inappropriate in one may acceptable in another. Think drill sergeant screaming at a recruit vs. McDonald’s manager screaming at a 16 year old employee.

A while back a Tennessee lawyer I used to know (and whom I despise for his cowardice on this issue) opined that workplace bullying laws were unnecessary because the activity is a sub-class of intentional infliction of emotional distress. In as much that legal theory does not deal with all the issues. I think it’s a good place to start when defining workplace bullying.

A Definition

Workplace bullying is toxic behavior that must be (some combination of) persistent and systematic inappropriate behavior that results in (a) measurable physical or emotional injuries affecting the target’s health; and/or, (b) tortiously interferes with an advantageous business relationship. E.g., loss of employment, salary, promotion, privileges or other advantageous benefit to which the victim would be otherwise entitled; and/or (c) damages the victim’s reputation in his or her field, thereby creating obstacles to earning a living in the target’s usual occupation.

From a legal standpoint, the big questions are who has the burden of proof and how the employer’s offenses relate to existing employment law, which favors the employer.

Intentional torts, which are the category in which all of the above criteria fall, usually require the plaintiff to prove the damages rather than the defendant to disprove them. What’s more, intentional torts are not usually covered by liability insurance AND insurance policies often specifically exclude employees. This means unless the company has deep pockets, lawyers likely won’t take the case on contingency.

Regarding employment law

Most workers are at-will employees. Therefore employers have broad latitude in defining performance standards and determining whether to fire an employee. Some classes of employee enjoy protected status: e.g., you cannot fire an employee for being old, gay, a different religion, or based on gender. But just about anything else is fair game, including nearly any petty reason that occurs to the employer.

Policies vs. Laws

On the short term, the above definition would be a great basis for HR policy in a medium to large business since the company can choose to take a neutral approach to the burden of proof and define the necessary criteria to either defend or prosecute a bullying charge.

Passing laws to combat workplace bullying are much more fraught. But, I think that definition helps alleviate some of the concern arising from specious claims. The work to do so will require an multi-pronged approach that reconciles several areas of law.

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