Workplace Bullying: Is it a Problem in Your Office?

By: Nicole D. Lindsey and Heather Rooney McBride

 

Over the past few years, the topic of bullying in schools has received much national and local media attention. Many states have taken steps to enact laws to address the problem, with stiff penalties for those who engage in such tactics; but what about office or workplace bullying? Often people consider bullying to be only juvenile behavior that occurs in school, but bullying also occurs in many workplaces and deserves serious attention.

Bullying is repeated inappropriate behavior, either direct or indirect, whether verbal, physical, or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment. Bullying includes verbal abuse; physical bullying; gesture bullying; threatening, humiliating, or intimidating behavior or conduct; exclusion; and sabotage that prevents work from being performed and may jeopardize the target’s health. The bully may be a supervisor, a manager, a peer, or even a lower-level employee.

According to recent research conducted by staffing firm OfficeTeam, about one in three (35%) of workers surveyed admitted they have had an office bully.[1] When asked how they respond to a bully, 32% said they confronted the person; 27% said they told their manager; and 17% did nothing. Human resources managers were also asked how often bullying occurs at their workplace: 6% said very often; 21% said somewhat often; 35% said not very often; and 38% said never.

Why does bullying happen? Research suggests a person is targeted by a bully because that person poses a threat to the bully, and the bully will do whatever he/she can to make the target’s work environment uncomfortable. Generally, the bully targets the person who brings something positive to the workplace that the bully feels threatened by, whether that is skills, education, attitude, recognition from a supervisor, or positive interaction with other employees.

Employers should teach their supervisors and managers how to recognize patterns of bullying. Is there a high incidence of turnover? Do certain positions always seem to be open? Do highly qualified employees leave after short tenures? If any of these situations present often, bullying may be occurring.

As a general rule, bullies operate in an environment of fear and silence. The bully counts on his target remaining silent about what is occurring and not reporting the abusive behavior. Some employees may put up with bullying because they need their jobs, and they do not have a choice to leave their current employment.

Office managers and supervisors must take steps to protect their employees. Supervisors and managers can cultivate an anti-bullying climate by encouraging open communication and developing good management skills. Bosses should resolve personality conflicts as soon as possible, and should take every complaint seriously. Supervisors should create a paper trail as to any complaints of bullying or harassment received. Additionally, confronting a bully is a necessary step and should be done face-to-face in a private meeting. Again, documenting all complaints, each episode, all conversations, and any actions taken to resolve such complaints is necessary. Finally, although most states have not been successful in passing legislation concerning workplace bullying, employers can take action to curb such practices by including an anti-bulling policy in their handbooks, codes of conduct, employment contracts, and other human resources materials.

What are the legal ramifications of workplace bullying for an employer? Unfortunately, behavior that qualifies as bullying is not itself actionable, without more. Workplace bullying is not an independently cognizable claim under Title VII, but if the bullying is sufficiently “severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” a plaintiff may be able to recover under a hostile work environment claim. See Ramseur v. Perez, 962 F. Supp. 2d 21, 30 (D.D.C. 2013).

To prevail on a retaliatory hostile work environment claim, “a plaintiff must show that h[er] employer subjected h[er] to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Ramseur, 962 F. Supp. 2d at 29 (citing Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367 (1993)). However, “it is axiomatic that mistreatment at work, through subjection to a hostile environment … is actionable under Title VII only when it occurs because of an employee’s … protected characteristic.” Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 20 (2d Cir.2012) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001)) (emphasis added). “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 [the federal discrimination laws].” Johnson v. City Univ. of N.Y., No. 14–cv–587 (VEC), 2014 WL 4412475, at*l (S.D.N.Y. Sept. 8, 2014); Jones v. City of New York, No. 14-CV-0826 CBA RLM, 2015 WL 502227, at *7 (E.D.N.Y. Feb. 5, 2015).

Irrespective of whether the bullying that occurs in the workplace appears to be actionable from a legal perspective, employers must be vigilant and take steps to prevent any bullying of which they are aware. Documenting all complaints, each episode, all conversations, and any actions taken to resolve complaints of bullying is necessary. Creating a paper trail demonstrating the actions taken to prevent or curb bullying in the workplace will help abrogate any claimed liability of the employer if such is claimed.

[1] http://officeteam.rhi.mediaroom.com/2015-09-15-How-Common-Is-Workplace-Bullying