This post was contributed by Paul Ritchey, a Summer Associate with McNees Wallace and Nurick LLC. Mr. Ritchey is a law student at the University of Virginia School of Law and is expected to earn his J.D. in May 2016.
We have seen it before: boss shouts (or glares, or laughs) at subordinate, and subordinate’s feelings are hurt. But it’s not only feelings that are hurt, and angry bosses aren’t the only ones offending. Workplace bullying can occur within many kinds of professional relationships, and when it does it can impact an employer’s bottom line just as easily as an employee’s feelings. To reduce turnover, sick days, and legal liability, as well as the promotion of a more harmonious work environment, employers should consider whether implementing an anti-bullying policy is right for them.
Workplace bullying has recently gained increased attention within the human resources community. A 2012 survey, conducted by the Society for Human Resources Management, reported that more than half of employers surveyed had experienced incidents of bullying in their workplaces. Of these, only 43% reported having a workplace anti-bullying policy.
With increased attention has come new initiatives to reduce personnel problems and legal risks that can arise from workplace bullying. As with any hot topic, lawmakers have joined the action as well. For example, in 2014, California passed Assembly Bill 2053, amending its regulations to require employers to incorporate training on “abusive conduct” into its already mandatory anti-harassment training.
While the California law simply requires training about broadly defined abusive conduct, other jurisdictions, including Pennsylvania, are working on legislation with more bite. Pennsylvania’s proposed “Healthy Workplace Act” is illustrative. As written, the Pennsylvania law would prohibit employees from being subject to an “abusive work environment.” The Bill defines “Abusive Conduct” as any act “intended to inflict and resulting in physical or psychological injury.” Like most non-discrimination laws, the Bill also contains an anti-retaliation provision.
The Bill would also provide a number of affirmative defense for employers, similar to the affirmative defenses available under Title VII. If no adverse employment action such as termination or demotion takes place and the employer can demonstrate it exercised reasonable care in preventing and/or correcting illicit conduct, and the complaining employee failed to take advantage of those preventive measures, the employer can avoid liability. The Bill also indicates than an employee can be individually liable for a violation of the Act. The proposed Law would impose civil liability on employers for any conduct of its employees that subjects an employee to abusive conduct and would allow for remedies including reinstatement, damages for emotional distress, punitive damages, and attorneys’ fees.
While unlikely to pass, if adopted, the Pennsylvania Healthy Workplace Act would surely make employers the target of a plethora of frivolous lawsuits.
However, even in the absence of a legal requirement to do so, many workplaces could benefit from the implementation of an anti-bullying policy. Some of the costs of workplace bullying are obvious: impaired communication, increased turnover, and a less-than-enjoyable workplace. But there are more complicated effects that employers might not immediately realize. According to the American Psychiatric Association, bullying can cause psychological harm, causing an employee to miss work for treatment. Further, anti-bullying policies could prohibit abusive behaviors in the workplace that are not based on protected traits (think weight, fashion sense, and political affiliation, for example) and might not be prohibited by other employment policies. While an anti-bullying policy might not stop abusive conduct immediately, it can send a clear message from the employer that bullying will not be tolerated. If well crafted, an anti-bullying policy can work toward reducing the wasted energy and needless tension so often produced by workplace bullying.