The recent investigation against Governor Cuomo uncovered, in addition to acts of sexual harassment, many instances of “workplace bullying.” But while harassment, as well as intimidation and retaliation, are illegal, bullying isn’t. So where is the line drawn?
Workplace bullying is broadly defined as any form of repeated, unreasonable actions of individuals or a group, directed towards an employee or group of employees, intended to intimidate or risk the health and safety of the employee(s).
Examples include unwarranted or invalid criticism, blaming without factual justification, excessive monitoring, shouting, swearing, or otherwise humiliating the employee.
These behaviors, however, can also be attributed to a “tough boss,” which, as unpleasant as they may be, may not necessarily constitute a workplace bully if their primary motivation is to set high expectations and obtain the best performance.
While this activity is not illegal per se—yet—it affects employee morale, creates workplace tension, and has been shown to negatively impact productivity.
At least 31 states have introduced bills aimed at making workplace bullying illegal, but none have yet passed except for Puerto Rico’s in 2020. So bullying in the workplace is currently not expressly illegal in any state.
In New York State, the “Healthy Workplace Bill” has been reintroduced several times. It has not yet passed, but inches closer to passage each time. If and when it’s passed, it will make it unlawful for employers to create or allow abusive conduct.
This is defined as “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.”
Under this bill, potential remedies include reinstatement, removal of the harasser from the plaintiff’s work environment, back pay, medical expenses, punitive damages, and attorney fees.
Although workplace bullying is not yet illegal, with so many protected categories under federal, state, local and employment discrimination statutes, any bullying could prompt a harassment complaint.
Of course, beyond the risk of litigation, bullying negatively affects both the targeted employee(s) and the workplace as a whole, ultimately harming the business. Employers should seek to recognize bullying behavior and minimize it by:
- implementing clear anti-bullying policies
- requiring specialized training, like workplace civility
- taking steps to address known bullying behavior
It’s not illegal to bully employees, but it’s not good business. And the writing is on the wall; workplace bullying will soon become the new frontier in labor & employment law.