Is it Bullying or is it Harassment? A Liability Either Way

Most human resources practitioners have heard the complaint, “I am being harassed,” and are trained to know what to do when it happens. Generally, it is up to HR or legal counsel to determine if the complaint is truly a discrimination/harassment complaint based upon a protected class with proper investigation.

With bullying so much in the news in recent years, the line between actual “harassment” and workplace bullying has been blurred. In the current landscape, behavior such as spreading rumors, isolating someone socially, yelling or using profanity, criticizing someone, or establishing impossible deadlines, regardless of protected class has been the subject of debate. Of these behaviors, most are not considered illegal under current civil rights laws, provided they don’t discriminate against a protected class. However, nationally and in many states, there are multiple lobbies trying to make various forms of workplace bullying illegal.

27% of employees have current or past experience with abusive conduct at work

In light of this, most employers have acknowledged that behaviors such as these can have a substantial impact on employees and their performance, although many have done nothing to stop it. According to a 2014 survey by the Workplace Bullying Institute, 27% of employees have current or past experience with abusive conduct at work, and 72% of employers deny, discount, or defend their manager’s actions.

As with illegal harassment, workplace bullying can have unwanted effects on a number of items, including absenteeism, turnover, workplace stress, morale, and productivity.

How Should Employers Deal With Bullying?

Regardless of the amount of effort you put into preventing and investigating employee complaints of any means – policies, training, etc., which we won’t go into here – employers are always subject to liability. Unbeknownst to many, employers can also be subject to OSHA investigations for workplace violence due to workplace bullying (as a workplace safety issue), and should therefore invest effort into training their managers on workplace bullying and its effects.

Even if an OSHA investigation reveals that no workplace violence exists (to OSHA standards) and the case is dismissed, it could potentially cost the organization much time and energy in defending the case.

In order to avoid and minimize liability for such complaints, here are some suggestions:

Train/Monitor Your Managers

The majority of identified “bullies” are managers. Make sure that they understand their role and enforce these guidelines – and hold them accountable for their behaviors. If you see a pattern with one of your managers, you may have to implement performance management or other means to address.

No matter how well you believe a manager is performing, do not be afraid to confront the behavior. This is also a key topic when conducting the manager’s performance review. Even if the manager is a top performer, you could be facing much worse if the behavior is not addressed.

Some states, such as California, have even mandated manager training regarding workplace bullying, citing that such conduct is “abusive.” Therefore, check your state statutes for training requirements to this regard.

Implement Consistent Complaint and Investigation Policies –and  Respond Quickly

Treat workplace bullying just as you would any other complaint – seriously. Employers must establish effective, easy-to-use procedures for receiving and resolving any complaints. A well-designed plan allows employees to report incidents to any of several persons in the organization, as well as prompt, decisive action taken with the offender as the investigation warrants.

However, make sure to have your policy reviewed by legal counsel prior to implementation, as you may have to consider the provisions of the National Labor Relations Act (NLRA). A policy that is too general may be considered as violating employees’ rights to protected, concerted activity (i.e. complaints regarding management). To address this, make sure to include specific examples of what does and does not constitute workplace bullying to ensure that employees have a clear understanding of what workplace bullying is.

Institute and Enforce Open-Door Policies, and Address the Issue

An open-door policy guarantees that employees can go above their manager to seek assistance, if the manager is the alleged offender, giving them access to other individuals who may not be otherwise available.

Additionally, address performance issues, including for your managers, as soon as possible. Don’t wait until the situation is critical, as this could make problematic managers believe that their behaviors are acceptable.

If you are thinking about instituting an anti-bullying policy, it’s important that you take these items into consideration and consult with your legal counsel prior to implementation to ensure that you considering all implications.

This information is provided as a consulting service only.  It is not intended to be and may not be relied upon as legal advice or opinion.  Persons needing specific legal or tax advice should retain the services of legal counsel.   

About Sara Ritter

Sara Ritter, M.A, SPHR, SHRM-SCP is a Senior Human Resources Consultant with the Willis Human Capital Practice. Sar…
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