Don't Count On Anti-Bullying Laws Being Enacted Under The Next 'Precedent'

Despite the need for anti-bullying laws, columnist Richard Cohen predicts that they will wither on the vine – for now.

office bully bullyingMelania was perhaps our shortest-tenured First Lady (elect) – (can anyone say Mrs. William Henry Harrison?). Before she (was) hurried from the Big Stage, she seemed to adopt – unironically – anti-bullying as her cause. Can anyone say “Get ‘im outta here!” or “Lock ‘er up!!”?

With the incoming Bully-in-Chief not known for his care and feeding of the weak or vulnerable, what will become of the movement against workplace bullying, which had been gathering steam? Will it go the way of Melania and disappear from view?

Is Workplace Bullying Increasing?

Workplace bullying will surely not go away. Quite the opposite.

I came across a Michigan newspaper discussing the increase of school bullying since the election, a reporter quoting a local school board member as saying that “I’m just glad the elections, in general, are over. It’s not just this Trump-Hillary thing, it’s all these politicians. It’s put bullying back 10 years.”

Were the article’s readers impressed? Readers argued among themselves: “Kinda harsh, Snowflake. Sorry I hurt your tender feelings but play in the pool can get rough. Feel free to put on your big-boy pants and troll again sometime,” and “it’s butt-hurt whiny BS like that that our kids see and emulate. Get over it and the kids will do the same.”

Nice. Looks like bullying has been put back more than 10 years.

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Speaking of cases of workplace racist speech, WaPo’s Wonkblog noted recently that they “illustrate the minefield employers are navigating amid a political climate in which racist language and views have been unleashed. While such sentiments have always existed, many Americans fear the hatred has been normalized, even legitimized, by Donald Trump’s campaign rhetoric.”

The same can be said about workplace bullying. It’s an issue even in law firms.

But despite the need for and desirability of anti-bullying laws, I am afraid that they will wither on the vine – for now.

Are There Any Laws Against Workplace Bullying?

Currently there are no federal or state laws defining or regulating workplace bullying. Justice Scalia put it bluntly in Oncale: Title VII is not “a general civility code for the American workplace” (so get over it!).

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A New York federal court noted in its decision that “Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Simply put: if you remove the racial, sexual, age or other protected class aspect of workplace harassment and hostile work environment, you get — bullying.

Many state legislatures – at least 25 – have debated but have not passed such laws. But a number of other countries have – such as Australia.

What Is A Bully?

One man illustrated for me workplace bullying in action. According to a local news article, the Manitoba (Canada) Human Rights Commission, suing on behalf of employees, presented “overwhelming” evidence of workplace intimidation by an employer.

The “adjudicator” (i.e., judge) held that “the evidence was overwhelming that the workplace … was ‘volatile and intimidating. The company was very much [his] petty kingdom.” He kept his staff “on pins and needles in terms of job security,” and “the smell of freshly-terminated staff hung in the office air, and the threat of more firings always seemed to loom.”

“The smell of freshly-terminated staff” – pretty evocative!

Is Workplace Bullying A Problem?

When I wrote a while ago about this topic, I received some great comments. One reader said that “If left unchecked, bullying behavior can have a profound negative impact on business,” and another commented that “While general bullying is not against the law in the U.S., prudent employers will still reduce bullying to reduce the risk of litigation.… almost every employee is in some protected class.”

Another reader noted that “From an HR management standpoint, anti-bullying has moved beyond regulating civility & has become a risk factor to be assessed.”

So yes – it is a problem – for employees and employers.

Are Anti-Bullying Laws The Answer?

Yes, says David Yamada of Suffolk University Law School, who is also the Director of the New Workplace Institute. He is the author of template legislation that has served as the basis of most of the workplace anti-bullying bills that have been introduced across the country – futilely up to now.

And can they be enacted narrowly enough to pass constitutional muster?

Professor Yamada told me in 2014 that “I can attest that the need for such legislation is underscored by the terrible inadequacy of existing law, including tort claims (IIED) and other causes of action. … the template bill, a/k/a The Healthy Workplace Bill, sets a relatively high threshold for recovery, higher in fact than hostile work environment standards for sexual harassment. In other words, it’s about creating a cause of action for abuse, not incivility.”

See his informative YouTube video, his blog video, and some of his legal scholarship.

If Ever Enacted, Would Such Laws Lead (Gulp!) To Justice Scalia’s Dreaded “Workplace Civility Code?”

Oh God, NO! Not that!

But for those who afraid that the workplace may indeed become civil – fear not!

At least for four more years.

Further Reading

To see how bullying is legislatively treated globally, see Ellen Cobb’s excellent Workplace Bullying, Violence, Harassment, Discrimination and Stress – International Laws, Developments and Resources.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.