Workplace bullying and the law
Bullying itself is not illegal, but it can crossover into grey legal area.
Bullying can become a legal issue if the conduct includes derogatory remarks such as racial or ethnic slurs, or other inappropriate comments based on membership in a protected class. Federal laws protect employees on the basis of age, sex, race, color, religion, national origin, and disability. State laws often include additional categories such as sexual orientation.
Bullying itself may not be unlawful, even if the offensive conduct includes cursing or other verbal intimidation, although it certainly isn’t appropriate in the workplace. However, if the conduct includes offensive remarks based on the victim’s membership in a protected class, it may create a hostile work environment for the victim. If the conduct is sufficiently severe and pervasive, this could be a violation of state or federal discrimination laws.
The problem is that the point at which the conduct becomes severe and pervasive enough to qualify as an unlawful hostile work environment is determined in each case. If bullying involves off-hand remarks or occasional inappropriate comments, it is less likely to be deemed unlawful. On the other hand, some courts have found that the totality of circumstances should be considered. In other words, if the overall bullying is, in fact, quite severe and pervasive, and if the bullying includes even occasional references to protected status, it could still create an unlawful hostile work environment.
Courts have coined a great term for this: the “equal opportunity harasser.” Some employers have been successful in defending against discrimination lawsuits by claiming that members of protected classes were not singled out, because the offender was rude to everybody. Other employers have been found liable on the theory that unlawful harassment cannot be excused merely because the offender was also rude to other employees (who were not members of the targeted protected class).
An employee who is being bullied may not have much recourse outside the office, particularly if the conduct does not include comments based on protected class. If the bullying is extreme and involves threats or physical intimidation, this could violate state criminal laws. Although the terms “assault” and “battery” are often used interchangeably, most states do not actually require any physical contact for a finding of assault. In simple terms, a shaken fist with a verbal threat could be assault, while actual contact would become battery.
An employee could report such a threat to the police, and this should motivate the employer to address the situation. However, a lot of bullying occurs without physical threats, such as making sarcastic remarks, using “put-downs,” or isolating the victim. If the employer refuses to address these situations, the victim may not have any recourse. The employer’s refusal to acknowledge the situation might even make the situation worse for the victim by increasing the feeling of hopelessness.
While a number of states have considered legislation to address workplace bullying, a significant problem is defining when the offensive conduct would become legally actionable. As noted, even the discrimination laws do not prohibit occasional remarks or off-hand comments, even though such comments might have a very real psychological impact. Attempting to define when behavior such as sarcasm or isolation should result in legal consequences is not easy.
Interestingly, Puerto Rico might soon have a law against bullying, and states might choose to adopt the language as a model for future legislation.
Edwin J. Zalewski is an associate editor with J.J. Keller & Associates, an organization specializing in human resources and workplace legal issues.
Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.