Are Workplace Anti-Bullying Laws Desirable?

Workplace bullying is a problem — a big problem.  For both employees and employers.  But neither the US nor any state has done anything about it.

Back in July 2014, I did a post on my old blog about workplace bullying and whether there should be laws prohibiting it.  I said that “If you take out the racial, sexual, age or other protected class aspect of workplace harassment and hostile work environment, you get, simply, bullying.   There are no state or federal laws defining or regulating workplace bullying, and the civil rights laws do not cover it, since, as Justice Scalia stated in Oncale, Title VII is not ‘a general civility code for the American workplace.’”

I quoted from a decision of a New York federal court which nicely described “bullying” in the US and its interplay, if any, with the employment anti-discrimination laws. The court held that:

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (‘Title VII’), and any complaint to the Equal Employment Opportunity Commission (‘EEOC’) based on them does not constitute ‘protected activity’ under Title VII.”

The Court continued:   “Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

On February 21, 2014 I asked whether anti-bullying laws, if ever enacted, would lead to Justice Scalia’s dreaded “workplace civility code?”

Many state legislatures have debated, but not passed, such laws — at least 25 – and many countries have enacted such laws (see Australia).  (For further reading on the various ways in which bullying is legislatively treated globally, see our friend Ellen Cobb’s excellent, updated book, Workplace Bullying, Violence, Harassment, Discrimination and Stress – International Laws, Developments and Resources is available on Amazon.com or at http://www.theisogroup.com/publications.)

Are anti-bullying laws the answer to workplace bullying?  And can they be enacted narrowly enough to pass constitutional muster?

On February 25, 2014 I posted a comment which I received from the distinguished professor David Yamada of Suffolk University Law School, who is the Director of the New Workplace Institute and, significantly, the author of template legislation that serves as the basis of most of the workplace anti-bullying bills introduced across the country.  See his informative Youtube video at: http://www.youtube.com/watch?v=EorTZHnukDU and his blog video at http://healthyworkplacebill.org/blog/tag/david-yamada/.  You can also access some of his legal scholarship: http://papers.ssrn.com/sol3/cf…

Professor Yamada stated that “I can attest that the need for such legislation is underscored by the terrible inadequacy of existing law, including tort claims (IIED) and other causes of action.  … the template bill, a/k/a The Healthy Workplace Bill, sets a relatively high threshold for recovery, higher in fact than hostile work environment standards for sexual harassment. In other words, it’s about creating a cause of action for abuse, not incivility.”

I received some great reader comments back about my many posts.  One reader said that “If left unchecked, bullying behavior can have a profound negative impact on business,” and another commented that “While general bullying is not against the law in the U.S., prudent employers will still reduce bullying to reduce the risk of litigation. … almost every employee is in some protected class.”

And one reader noted that “From an HR management standpoint, anti-bullying has moved beyond regulating civility & has become a risk factor to be assessed.”

Any more thoughts out there?