How to Outlaw the Office Bully
New legislation seeks to clearly define workplace bullying — and offer employees a chance to fight back.
Labels born out of online culture — like NFSW, or “not suitable for work” — often come in handy at the office to caution that the link you are about to click on contains content a little too racy or edgy for professional environments. Unfortunately, laborers need a similar code to help them identify and avoid abusive bosses, whose behavior while legal, should not be considered suitable for work or any context.
The United States is the only western democracy that doesn’t have a law forbidding bullying in the workplace. This means for many, the trauma and daily indignities brought by verbal abuse, sabotage, humiliations, and threats from bosses or co-workers are par for the course. Surveys show that millions of employees each year will likely be targets of malicious behavior that can prove detrimental to their physical and mental health. According to a recent study by the Workplace Bully Institute, nearly 66% of employees lose their jobs within a year of being targeted or give up trying to change the toxic culture. So far, workers have had little recourse. But that may soon change.
The legal system offers little guidance on the issue. Civil rights and employment laws are scattershot across the federal, state, and municipal levels. While almost every state has taken action to protect children from cyber-bullying and anti-bullying in schools, no similar measures exist to address workplace bullying. There are no federal laws directly applying to cyber-bullying, bullying in schools, or on the job.
Non-discrimination laws kick in for just 20% of bullying cases. Protections covering workplace abuse only apply in very narrow circumstances: unless an employee is able to prove their abuser explicitly discriminated against them due to their protected class status, like race and sex, there isn’t much legal experts can do to help.
Bad bosses are viewed as a given — almost an expectation
Those being bullied may not even fully understand the behavior they are experiencing is out of the ordinary. Since the early 2000s, David Yamada, the chair of the Healthy Workplace Campaign and one of the nation’s foremost legal scholars on workplace abuse, says workplace bullying has been a “silent epidemic.” He likens debates over malicious workplace behavior today to conversations being had about sexual harassment 30 years ago. In the past, untoward advances and sexist comments — like those immortalized in the TV show Mad Men — were an accepted part of a broader professional culture.
Bad bosses are viewed as a given, almost an expectation — a painful, if necessary, rite of passage. When news broke of U.S. Senator Amy Klobuchar’s staff abuse allegations, commentators seemed unable to agree on where to draw the line between what’s considered demanding versus demoralizing behavior, between pushing people to be their best self, or punishing people simply because you have the privilege and stature to do so.
Yamada hopes to define that line. He, along with scholars at the Workplace Bullying Institute, is pushing legislation to define bullying in concrete terms: repeated, health-harming behavior directed at an individual. Bullying can take many forms, he argues, including verbal abuse, offensive conduct, or intentional interference in an employee’s workplace duties.
Taking a page from the LGBTQ rights movement, anti-workplace bullying advocates are pursuing a state-by-state approach toward implementing new employee protections, with the long-term goal of marshaling support for federal legislation. But progress has been slow. To date, just Tennessee has passed an anti-workplace bullying bill, and that legislation only contains a mandate for state agencies — not private companies — to respond to abusive conduct.
Lagging advancement is a reflection, in part, of a fractured landscape for movements championing equality nationwide. Advocacy organizations on the left, in particular, are prioritizing differing solutions to workplace inequalities. LGBTQ and women’s rights organizations, for example, are pursuing identity-centric legislation like the Equality Act and the Equal Rights Amendment.
Anti-bullying legislation, in contrast, is “status-blind,” meaning it zeros in on curbing bad behavior regardless of the intent of the abuser and the identity of the employee. The “status-blind” messaging, at first glance, can seem at odds with the interests of the very communities most in need of this legislation in the first place. Research shows the targets of bullying tend to be women, particularly single moms, Blacks, Hispanics, and LGBTQ people — demographics frequently aligned with the left.
“It’s distressing to me. Politically, the standard liberal activist hasn’t grabbed on to this issue,” Yamada told me recently. “So much of our attention has been focused on sex and race. Sometimes it makes it harder for us to realize that mistreatment can derive from many motivations.”
With the rise of the #MeToo movement, the cultural landscape around what’s considered inappropriate behavior in professional environments has shifted considerably in recent years. Activists are primed for intersectional, comprehensive solutions.
“Theoretically, it [anti-bullying legislation] is a wonderful idea,” says attorney Deborah Shields, the executive director of Mass Equality, the leading advocacy organization for LGBTQ people in Massachusetts. “Discrimination alone is really hard to prove,” she says.
There’s reason for optimism. Grassroots campaigns are now rallying support behind anti-bullying legislation in places like Rhode Island, New York, West Virginia, Connecticut, and Massachusetts, in particular. NAGE SEIU, a major public employee union, is deeply involved in lobbying efforts there. To date, more than 4,000 volunteers are engaging in an unprecedented ground game. Over 100 Massachusetts state legislators have already signed on as co-sponsors of the so-called Healthy Workplace Bill.
However, potential litigation remains a chief concern anti-bullying advocates will need to address. Companies are quick to say they don’t condone abusive conduct, but argue the Healthy Workplace Bill is the wrong solution to a difficult-to-define problem. The National Federation of Independent Businesses, an association representing small businesses, says this kind of legislation would open up businesses to frivolous and costly lawsuits. The Society for Human Resource Management, the nation’s largest membership association for human resource professionals, argues companies can take care of the problem on their own through internal workplace policies.
Though the LGBTQ movement benefited from federal court intervention, laying the groundwork for marriage equality in all 50 states, advocates worry a similar approach toward workplace bullying could backfire now in a post-Trump landscape. “I’d hate to see it end up in the courts. Anything, these days, that could end up in the Supreme Court should be avoided,” Shields says.
Still, businesses and organizations are facing heightened pressure to address the gendered power dynamics in workplaces that allowed harassment to fester for decades. But the types of abuses rampant in office settings aren’t just sexual in nature.
Advocates say the added attention to bad behavior in the workplace is helping shine a light on bullying.
“We are benefitting from a ripple effect from the #MeToo movement,” Yamada says. “The media headlines start with sexual harassment, but as you read deeper into the story you find out there’s a lot of generic bullying. These behaviors don’t occur in a vacuum. They hang together. Shouldn’t we be free of all this stuff by now?”