Preventing Workplace Bullying

While many federal and state laws protect employees against harassment, workplace bullying often isn’t covered unless it is based on a protected characteristic, such as race or gender. But that doesn’t mean employers should ignore disruptive behavior just because it’s not technically unlawful.

To help foster a healthy, safe and welcoming work environment, employers must consider creating robust policies that address abusive conduct.

“Aside from creating a legal defense, these types of policies may prevent inappropriate or harassing conduct, as well as create positive employee morale,” says Emily Litzinger, an attorney with Fisher Phillips in Louisville, Ky. “Positive workplace morale can result in higher productivity, retention and better recruiting efforts.” Here are a few best practices for employers to consider: 

Know When Bullying Becomes Illegal

The Workplace Bullying Institute defines bullying as “repeat mistreatment,” which includes workplace sabotage; verbal abuse; and abusive conduct that is threatening, intimidating or harassing. But what behaviors are deemed unlawful in the workplace?

As a starting point, employers should be aware of the laws that protect employees, including:

• Title VII of the Civil Rights Act of 1964 prohibits workplace harassment based on national origin, race, color, religion and sex (including sexual orientation, gender identity and pregnancy).
• The Age Discrimination in Employment Act prohibits such behavior based on age, starting at age 40.
• The Americans with Disabilities Act prohibits harassment based on disability.

According to the Equal Employment Opportunity Commission (EEOC)—the agency that enforces these laws—harassment is unlawful when enduring offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.

The types of conduct that the EEOC recognizes as offensive include:

• Offensive jokes, slurs, epithets or name-calling.
• Physical assaults or threats.
• Intimidation.
• Ridicule or mockery.
• Insults or put-downs.
• Offensive objects or pictures.
• Interference with work performance.

But offensive conduct may not always be unlawful, even when based on a protected characteristic. “Petty slights, annoyances and isolated incidents—unless extremely serious—will not rise to the level of illegality,” the EEOC states. “To be unlawful, the conduct must create a work environment that would be intimidating, hostile or offensive to reasonable people.”

Notably, an employer could be liable for harassment by an employee’s supervisor, co-worker or client, among others who may work closely with the employee. Moreover, when harassment creates a hostile work environment, employees may have a claim if they are affected by the behavior, even if they are not the target of the harassment.

“Any time that bullying relates to an employee’s protected characteristic, it could potentially lead to a claim under Title VII or other federal, state or local anti-discrimination laws,” says Lisa McGlynn, an attorney with Fisher Phillips in Tampa, Fla. For example, it would not be illegal to bully someone because their football team lost, because this would not be a protected characteristic. However, the behavior could cross the line into unlawful harassment if it is related to a co-worker’s race, sex or other protected characteristic.

What if comments are meant as a joke? Perhaps, for example, an employee accused of bullying says they called an older member of the team “grandpa” in jest. While a one-time remark is likely unactionable, McGlynn says, behavior like this can be a violation if it is related to a protected characteristic—such as age—and is either severe or pervasive.

State and local laws can include more—or different definitions of—protected characteristics. For example, some states specifically prohibit discrimination based on weight or hair texture. In other states, however, these characteristics would not be specifically protected.

“For employers that operate in multiple locales, it is important to know what your state and local laws might require beyond federal anti-discrimination laws,” McGlynn notes.

Cultivate a Healthy Workplace

Employment laws are not general civility codes, but employers can establish their own guidelines and expectations. Just be sure these rules don’t run afoul of applicable employment and labor laws, including the National Labor Relations Act.

Many employers want to go beyond simply checking the boxes for legal compliance to create a healthy and productive workplace culture. Consider taking the following steps:

Look at the big picture.

“My key suggestion for employers is to focus on structural and systemic prevention of bullying,” says Ludmila Praslova, Ph.D., SHRM-SCP, professor of graduate organizational psychology at Vanguard University of Southern California in Costa Mesa, Calif. “Systemic prevention is the key to success and creating healthy organizations.”

Set clear expectations.

“Employers should include policies that clearly define what is acceptable and unacceptable behavior,” Litzinger recommends. “Employers are encouraged to use examples that relate to the workplace.”

Be consistent.

Employers that do not consistently enforce their policies run the risk of negatively affecting morale and reducing the positive impact these policies aim to produce, Litzinger adds. Moreover, inconsistencies can create legal liability.

Train employees.

Employers may want to add anti-bullying to their harassment prevention program. Notably, some employers must already do this under state law. In California, for example, employers with at least 50 employees must include “abusive conduct” prevention as a component of their mandatory anti-harassment training.

Establish a reporting process.

“Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed,” according to the EEOC. Make sure your employees and supervisors know whom to contact when they need assistance.

Promptly and thoroughly investigate complaints.

Take complaints seriously, and consider designating an experienced person or team to conduct investigations.

Assess company culture.

Praslova recommends that employers conduct regular assessments of their organizational culture to detect early signs of a toxic environment.  

Lisa Nagele-Piazza, SHRM-SCP, is legal content counsel for Fisher Phillips in Washington, D.C.