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Anti-Bullying Legislation in the United States: Workplace Bullying

Anti-bullying legislation has been promoted by workplace advocates for many years. So far, twenty-three states have introduced workplace bullying legislation known as The Healthy Workplace Bill, however no laws have been enacted. Eight states were active as of early 2013 with eleven current bills.

What does workplace bullying look like?

According to the Healthy Workplace Campaign, workplace bullying is a “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators.” Workplace bullying can take any of the following forms:

  • Verbal abuse
  • Offensive conduct/behaviors (including nonverbal actions) which are threatening, humiliating or intimidating
  • Work interferences (i.e. sabotage), which prevents work from being done

Recent statistics show that workplace bullying affects the lives of 37 percent of adult Americans. In its more severe forms, it is related to several stress-related health complications (e.g. hypertension, auto-immune disorders, depression, anxiety and PTSD). Often, the individual’s immediate job and career are disrupted.

Other statistics on workplace bullying include:

  • 49 percent of adult Americans have been bullied, or witnessed it in the workplace
  • 80 of bullying is legal
  • 72 percent of bullies outrank their targets in the workplace (i.e. bullies are their targets’ bosses or supervisors)

This is a serious concern for employers, as it is often the least skilled employees who attack better workers, because of the perceived threat they imagine. When the perpetrator has the power to deprive his/her target of a livelihood and the economic and health security the job represents, bullying is an abuse of authority.

No Federal Framework

Currently, there is no federal law expressly prohibiting bullying in the workplace, or otherwise. Although efforts at prohibiting bullying in the education sector have begun at the state level, there has been no serious effort to enact legislation covering bullying in the workplace. This leaves workplace bullying victims to work through a patchwork of other federal and state laws that may encompass the bullying behavior at issue, though they may not necessarily be directed at bullying.

Victims may seek some protection through state common law torts, such as intentional infliction of emotional distress, or battery. For instance, if the bullying behavior included offensive, unwelcome touching, there might be grounds for civil battery.

Federal employment laws may also offer some protection for bullying victims, but that protection is dependent upon the bully’s motive, which must be based upon the victim’s protected status. For instance, if the bully is motivated by the victim’s race, such that he has targeted individuals of Asian descent for bullying, but not whites, that bully behavior could constitute a racially hostile work environment. However, if the bully is motivated by a personal dislike for the victim unencumbered by a racial or gender bias, the federal employment laws would offer no such protection.

Healthy Workplace Bill

Since 2001, the Healthy Workplace Campaign has been working towards anti-bullying laws on a state-by-state basis. What is now known as the Healthy Workplace Bill (HWB) was drafted by David Yamada, a law professor at Suffolk University. The HWB has been introduced in twenty-three states, in over sixty versions, and has been sponsored by more than three hundred legislators.

In brief, here are some important aspects of the HWB for employers:

  • Defines an “abusive work environment” – a high standard for misconduct
  • Requires proof of health harm by licensed health or mental health professionals
  • Protects conscientious employers from vicarious liability risk when internal correction and prevention mechanisms are in effect
  • Gives employers the reason to terminate or sanction offenders
  • Requires plaintiffs to use private attorneys
  • Fills the gaps in current state and federal civil rights protections

Some important aspects of the HWB for employees:

  • Provides an avenue for legal redress for health-harming cruelty at work
  • Allows employees to sue the bully as an individual
  • Holds the employer accountable
  • Seeks restoration of lost wages and benefits
  • Compels employers to prevent and correct future instances

However, the HWB does not:

  • Involve state agencies to enforce any provisions of the law
  • Incur costs for adopting states
  • Require plaintiffs to be members of protected status groups (i.e. it is “status-blind”)
  • Use the term “workplace bullying”

Outside the US

It’s important to note that the US is the last western democracy without a law forbidding workplace bullying. Since 1994, Scandinavian nations have enacted explicit anti-bullying laws. Many of the EU nations have significant legal employee protections compelling employers to prevent or correct bullying.

Britain – which coined the term “workplace bullying,” has broad anti-harassment laws which also cover bullying, while Ireland’s stringent health and safety code addresses bullying.

Canada’s first provincial law on workplace bullying was enacted in2004, the second in 2007, and another in 2010. The issue is also covered in the occupational health code for federal employees in 2008.

Summary

Workplace bullying is an issue which has directly or indirectly affected almost half adult Americans. This article takes a look at what constitutes “workplace bullying,” and the state legislation that has been adopted to deal with the problem. The article introduces the Healthy Workplace Campaign and the Healthy Workplace Bill.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam,  a privacy professional should be comfortable with topics related to this post, including:

  • Anti-bullying laws (V.F.)
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