I have previously written about bullying legislation with considerable suspicion. To summarize, "I'm not a fan." Specifically, I expressed the view that it's impractical, over-burdensome on business, concerns a fuzzy, subjective term that cannot be uniformly applied or understood, and reflects a policy conclusion is not empirically established at all, at this point, e.g., that forceful/aggressive employees are "bad" for business and meeker/milder employees are "good", and that we need to run one group out in favor of another.
Recently, however, I've explored the matter further with colleagues, through a question posed by Marc Brenman on ADR, Conflict Resolution and Mediation Exchange--"Bullying: Amenable to legislated approaches?" Ultimately, although I appreciate that my view and understanding of workplace "bullying" has been broadened and enhanced considerably, I come to the same conclusion regarding the efficacy and desirability of anti-bullying legislation.
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In the subsequent LinkedIn thread, several people described bullying as "abuse," and akin to rape, child abuse, domestic violence, and/or sexual or racial discrimination. It was urged that employer liability was the only way to stop the apparent epidemic.
First, I do not agree that what one person calls "bullying" is necessarily abuse, although it could be. In the employment/HR field, there are always a number of well-intentioned folks who have a misplaced sense of their work place rights, and who tend to call many work rules, policies and deportment and/or productivity standards "abusive" and discriminatory or harassing.
Second, it was made apparent in the discussion that workplace bullying is a complex area of social dynamics, and the subject actually moves well into territories best suited to psychotherapists, psychologists, etc--mental health professionals, in short. In light of that, would it be fair or reasonable to expect employers to generally, and without extenuating circumstances of egregious conduct, notice, refusal to cure, etc, be on the hook for the psycho-social issues, predilections etc of their employees?
Third, to the extent workplace anti-bullying legislation is analogized to other areas of legislation/regulation, practitioners must be careful to distinguish these other areas where the differences are germane to anti-bullying legislation that would also impose some liability on the employer as well as on the bullying or abusing employee. For instance, child abuse is legislated because children are inherently vulnerable and as minors are legally and practically incapable of protecting/defending themselves, while at the same time parents owe an extraordinary duty of care to their children. Neither situation applies to the employer/employee relationship.
In another example, race and gender discrimination legislation address conduct directed to an entire class or category of otherwise similarly situated people who have, moreover, suffered categorical and socially systematic mistreatment in the past. Again, neither situation applies here, based on what I've seen so far. No one has raised any empirical data, but based on what's been written so far we appear to be discussing aberrant and random behavior based on the psychological condition of the perpetrator and victim working in tandem. Also, in race and gender discrimination cases, the employee must generally provide notice to the employer of the misconduct, and give the employer a chance to cure it, while much of the discussion here appears, to me, to assume victims that will be emotionally or psychologically incapable of doing that. The discussion has also seemed, to me, to revolve in large part on mental health issues that many professionals trained in these areas can continue to have considerable difficulty identifying. In that case, is it reasonable or fair to expect the employer to be able to identify "abuse," domination/humiliation/control etc where? This is apparently not simply a case of identifying, for instance, that (a) blacks/women are treated like X, while (b) whites/men are not.
Domestic violence/partner abuse may be the closest analogy but there the conduct is criminal and the parties go to criminal court. Civil legislation simply is not comparable, and to me does not seem amenable to correct the misconduct discussed herein, which really sounds more like assault/battery issues. And, as you probably know, it is quite extraordinary to impute liability to an employer for the criminal conduct of one employee to another, since such intentional conduct will not be "within the scope of employment" and will be w/o notice.
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Another repeated theme in the LinkedIn discussion were that such legislation was needed--even if ineffective or flawed--because of proof problems in establishing bullying claims, and for the purpose of "raising awareness of the problem." The fact that proof etc can be difficult is not in and of itself sufficient principled justification for legislation--nor is the desire to provide a "wake up call."
Regarding the latter point in particular, I am still also an attorney although also "neutral" (arbitrator/mediator/ALJ), and such a professed purpose frankly makes me cringe. In my view, a law should not be passed unless it represents a legitimate exercise of government power, its purpose is clearly articulated, and its substance is well calculated to achieve the legitimate purpose. Just how many ill-conceived laws do we need on the books, after all? As one commenter put it: “it sounds like a legislative solution looking for a problem.”
Similarly, one contributor urged that under her proposed scheme, "an abuse-free workplace would be a civil right for all persons." Again, I cringe at the flood gates opened by making "an abuse-free workplace ... a civil right for all persons." It seems the next stop would necessarily be making overall happiness, pleasantness and lack of any discomfiture or discontent in the workplace "a civil right for all persons."
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Moving away from speculation as to what anti-bullying statutes or programs would entail, several LinkedIn contributors from Canada and UK commented on their anti-bullying legislation, in generally favorable terms.
The Ontario Occupational Health and Safety Act was recently amended in 2010 to require all employers to develop a policy and a program for (a) workplace violence and (b) workplace harassment. The Act does not impose civil liability, but does provide for government inspection/investigation, which could in theory lead to fines or jail time for non-compliance. I particularly like the idea of a neutral investigator. In my experience, a lot of employment and labor related complaints can be screened out as unsubstantiated if the legislation/agency provides for an initial screening/investigation, as before the US EEOC and NLRB.
According the one contributor, the UK in contrast, has made any kind of harassment in the workplace illegal under the recent Equality Act, which broadly covers “unwanted conduct which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual.” (However, note that a more recent contributor has indicated that only if the conduct "related to a relevant protected characteristic," meaning age, race, disability, religion/belief, gender assignment, sex or sexual orientation.) Both contributors on the UK issue agree the Health & Safety at Work laws in the UK also impose a duty of care on employers to provide a safe and healthy workplace. Work related complaints are filed with an independent judicial body, the Employment Tribunal (ET), whose panels include two laymen and one senior lawyer. The ETs rulings are said to have the force of law, and remedies can include overturning an unfair dismissal, reinstatement to a comparable job, or financial awards of up to £66000. In practice, however, reinstatement is rarely ordered; fines usually average half or less of the yearly salary; and the ETs tend to award more for discrimination on the grounds of race, sex and disability than other forms of harassment or misconduct.
A US contributor also provided a link to legislation proposed in New York, which provides a civil cause of action for workplace abuse and abusive work environments: New York S4289-2011, available at http://open.nysenate.gov/legislation/bill/S4289-2011. On the plus side, the proposed NY statute does define its terms, such as "abusive conduct," "abusive work environment," "conduct," "constructive discharge," and "malice." However, in my view these terms are still too broadly and subjectively defined. Although there are lots of qualifiers such as nature and frequently of conduct, repeated, verbal abuse, derogatory remarks, humiliating, sever, without legitimate cause or justification, the qualifiers themselves are up for debate.
Additionally, the overall scheme relies heavily on the "reasonable person" standard. See Sec. 761(1). Unlike invidious discrimination claims based on verifiable, objective facts of "did you treat others of a different race/gender/etc differently although similarly situated," use of the reasonable person standard always ultimately requires a jury to determine what that means at any given time. See my blog posting at http://albuquerqueadr.blogspot.com/2011/04/de-vinne-on-reasonable-person-as.html. As such, the reasonable person standard necessarily breeds costly litigation until there is sufficient case law to define it for the public--again, at any particular time/epoch, since the standard does morph.
Finally, I'm troubled that the harm and causation showings required for "abusive work environment" and "constructive discharge" do not even have a reasonable person standard, difficult as it can be to apply. Instead, these showings are purely personal and subjective, asking only if, respectively, the conduct is severe as to cause harm, or if it caused an employee to leave. It is not difficult for me to imagine a case where a reasonable person would find the situation abusive, but in the instant case it has caused harm wholly out of portion--from the RP standard--to the actual conduct, although abusive.
For all these reasons, I think the proposed NY legislation could lead to the filing of questionable suits for hope of quick settlement. Similarly, I thought the UK legislation was also appallingly over broad, but I was relieved to learn that at least substantial employer liability for general "harassment" claims does not tend to attach under it, as a practical matter. Overall, I am more favorably inclined to the Ontario regulatory model, without civil liability.
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Not surprisingly, the thread appearing in a group related to ADR, there was much discussion about the amenability of work place bullying to mediation or other ADR methods. The general gist of the thread was that in the contributors' experience mediation is not particularly helpful in the bullying situation. Rather, education seemed to all to be more practical, although one contributor pointed out that more comprehensive "communication consulting" may also be effective.
For my two cents' worth, it sounds like communication consulting would only be helpful if the "bullied" employee is indeed overreacting. Then the so-called “bullier” can be educated as to how his/her comments/actions are taken. Likewise, the so-called victim can be educated to deal with the occasional perceived slights, slurs or offenses that arise when a diverse group of people work together in frequently stressful business environments.
In contrast, if you are confronted with a true bullying situation--e.g., involving malice and egregious and overtly and objectively harmful words, acts and/or adverse employment actions--it would seem the actor is not "educable" through mediation, "communication consulting," or anything short of perhaps certified, qualified psychological or psychiatric therapy, and/or the deterrent effects of criminal punishment, if the conducted constituted a crime.
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