David Simon

According to recent surveys, 75% of U.S. workers have been affected by workplace bullying (as either a victim or witness), and 29% of HR managers report that employees in their workplaces have quit as a direct result of bullying. Yet harassing or abusive conduct that's not based on a legally protected characteristic, such as gender, religion, ethnic origin, race, etc., is not covered by current laws prohibiting workplace harassment. Courts fully recognize bullying behavior by managers and co-workers as being abusive and harassing, but because it's "equal-opportunity" harassment -- obnoxious behavior that doesn't single out individual victims on a protected basis -- it is generally beyond the express protection of the law. (See, e.g., http://ow.ly/1otZ2.)

Over the past few years, however, many countries (including Australia, the United Kingdom, France, Germany, Sweden, Norway, Switzerland and parts of Canada) have passed comprehensive anti-bullying laws, and at least 14 states in the U.S. are considering similar legislation. The proposed state laws would make it unlawful to subject an employee to an "abusive work environment" so severe that it leads to physical or psychological harm. (The definition of an abusive work environment is similar to the definition of a hostile work environment under anti-harassment laws. An abusive work environment is generally defined as one in which an individual is repeatedly exposed to malicious conduct that is unrelated to any legitimate business interest and that a reasonable person would find hostile and offensive.)

Until the law catches up with this unfortunate reality of today's workplace, there are still a few potential options for bullying victims -- and concerns for employers with bullies on their staff:

1. Bullying that takes the form of assault, battery, retaliation, defamation, or discrimination based on a legally protected characteristic is clearly illegal. (Note that an "assault" does not require actual touching in most jurisdictions.)

2. An employee who is targeted by a bully may claim that the abusive conduct is based on his/her membership in a protected class and transform a pattern of bullying into a discrimination lawsuit. There are lots of protected classes -- the familiar ones under federal law (Title VII of the Civil Rights Act, Pregnancy Discrimination Act, Age Discrimination in Employment Act, Americans with Disabilities Act, and Genetic Information Nondiscrimination Act), as well as many more that apply in specific states and localities.

3. Many companies have policies that are more strict about workplace conduct than the law is. These policies typically provide that every employee, regardless of his or her position, deserves to be treated with civility, dignity and respect. So while a bully may not be acting illegally, s/he may still be subject to discipline -- often up to and including termination -- for violating company policy.

So watch out, equal-opportunity harassers -- your days may be numbered....