Laws lacking in workplace bullying

Workplaces have bullies just like schoolyards, but bullied workers generally have fewer legal protections than school children. State and federal laws do not prohibit bullying in the workplace, as long as it does not constitute discrimination or certain types of harassment.

But calls for legislation outlawing the activity have grown louder since last fall when the topic grabbed national headlines after an NFL lineman accused a teammate of hazing and bullying.

Advocates said more than one-third of U.S. workers experience bullying, and the public is finally beginning to understand its prevalence and harm.

“It’s very serious because it destroys people’s health, jobs and careers,” said Gary Namie, director of the Workplace Bullying Institute, an educational and research nonprofit in Bellingham, Wash. “It’s a major, major problem, but it’s not illegal, so employers don’t have to deal with it.”

But laws prohibiting workplace bullying would hurt businesses by making managers vulnerable to employment litigation whenever they had to discipline or fire a worker, according to some legal and human resources experts. They said employers — not lawmakers — should be charged with preventing and combating hostile work conditions.

“I think our court systems would be clogged with lawsuits (if workplace bullying laws were passed), and you’ll end up with a workplace where no employer will fire an employee out of fear of some bullying claim coming back,” said Jon Hyman, a partner in the labor and employment group at Kohrman, Jackson & Krantz, a corporate law practice in Cleveland. “The best defense against this kind of legislation (becoming law) is for employers to be proactive about the issue.”

Susan Camp, 49, of Newark, worked for a trucking company in Marysville between 1996 and December 2007, but was fired after being allegedly bullied and mistreated by the branch manager.

Camp said her male supervisor treated her in a degrading and humiliating manner every day, and he cussed at her, put his hands in her face and yelled at her to stop talking, and had strict rules about how she must act when speaking with him.

“He was condescending and he spoke to me as if I were a 3-year-old child or I had an IQ of a slow dog,” she said. “He would speak very slowly and very loud, and it was very disrespectful, not just as a woman, but as a human being.”

Camp said she suffered from stress and anxiety, and she was fired after taking a leave of absence to deal with her mental health issues.

She filed a sexual harassment lawsuit against the firm that claimed her supervisor bullied her and treated her differently because she was a woman. The lawsuit was later resolved.

Bullying or discrimination

Sexual discrimination in the workplace is against the law.

Workers who are persistently intimidated, bullied and harassed at work because of their sex, race, color, national origin, religion, age or disability can pursue legal action under federal law, said Roxi Liming, Camp’s attorney and a partner with Adams, Liming & Hockenberry, a Columbus law firm.

But bullying at work is not illegal if it is not discriminatory, Liming said. If Camp’s boss had treated male employees the same way, there would have been no cause for legal action, she said.

“I often get phone calls from potential clients who are complaining about how they are being treated in the workplace,” she said. “Unfortunately, under the law as it is written, bosses are allowed to be total jerks. As long as they are being an equal opportunity jerk, they are allowed to get away with it. I don’t think that is fair.”

Ohio courts have dismissed cases of alleged bullying because the workers said they were being harassed because they were homosexual. Sexual orientation is not a protected class. A Summit County man sued his employer after coworkers allegedly posted notes taunting him, changed his computer’s screen saver to an insult, smashed his cell phone and engaged in other behaviors. The court dismissed the case because the harassment was not definitively based on his race.

Workplace bullying is repeated mistreatment by one or more people that causes health harm and takes the form of verbal abuse, threats, intimidation, humiliation or work sabotage, said Namie, with the Workplace Bullying Institute.

Call for better management

In 2010, more than one-third of workers reported being mistreated at work within the previous six months, according to a study by the institute.

Most workplace bullies are managers and bosses, who justify their actions on the grounds that it will lead to better work outcomes, Namie said.

“The bosses can say, ‘I’m just motivating this person, or I’m just training this person, or I’ve got to make a perfectionist out of this person,’” he said. “But none of this is necessary to make work productive or high quality, and in fact, it undermines and demoralizes. … These petty tyrants are cowards.”

In March 2012, the Journal of Nursing Scholarship published a study about workplace bullying among novice nurses. Peggy Berry, a doctoral candidate at the College of Nursing at the University of Cincinnati, was one of the authors of the study.

Berry, who is a Washington Twp. resident, said she surveyed about 200 nurses and found that more than one in five respondents had been bullied repeatedly over a six-month period.

The survey was conducted in 2010. But Berry said she surveyed dozens of those nurses again recently and found that about one-third reported being repeatedly bullied.

“When we see statistics like this, (it’s clear companies) are not managing their workforces effectively,” she said.

Berry said employers who do not create respectful work environments will face more turnover and other employment issues. This occurs because bullied nurses tend to make more errors, take sick leave more frequently, and often they resign or get fired because of stress and reduced work quality or productivity.

Workplace bullying has been around for as long as there have been workplaces, but advocates said awareness of the problem is spreading.

They said support for anti-bullying laws in states nationwide has grown after Miami Dolphins offensive lineman Jonathan Martin left the team in October, and allegations surfaced that he was bullied by teammate Richie Incognito.

Incognito allegedly cussed at Martin, called him racial slurs and threatened harm.

The NFL is investigating the incident, but many experts believe it is a classic case of workplace bullying and locker room hazing. No workplace bullying laws have been introduced in Ohio.

Losing good employees

The Incognito incident led to intense media coverage and a national discussion about bullying, but new laws are not needed because most employers already have workplace rules that forbid harassment, intimidation and hostility, said Bob Bethel, state council director for the Ohio Society of Human Resource Management State Council.

“Anti-harassment policies have been in place for many years, while workplace violence policies have been added in more recent years, mostly as a result of violent outbursts in companies,” said Bethel, who also works with the Employers’ Association. “Employers also realize that bullying results in good employees leaving, just like Jonathan Martin left the Dolphins.”

Last year, an employee of the Greene County Board of Elections accused the agency’s director of bullying and harassment. A month-long probe by Greene County Personnel Department and the elections board resulted in the director being required to attend a training seminar on supervising employees as part of a disciplinary measure, according to documents obtained by the Dayton Daily News.

Good managers will make sure workers are abiding by policies that prohibit them from making threatening remarks and using aggressive or hostile behaviors that cause emotional distress, Bethel said.

Many companies hold annual training for employees and supervisors so they understand that bullying will not be tolerated and know how to properly report incidents.

Businesses need to stamp out abusive and bullying behaviors, otherwise more stories like the Incognito incident will surface, which will increase the likelihood that lawmakers will take action and create bad laws, said Hyman, the Cleveland attorney.

“Ultimately, this would lead to state legislators stepping in to craft a legislative solution to something that businesses really should be able to take care of themselves,” he said. “If someone is going to be a jerk, I don’t know how you legislate that away.”

Legislation outlawing bullying would have a chilling effect on the ability of managers to effectively manage their employees, he said. Workers who are fired or disciplined often believe they are being treated unfairly and they would be likely to sue their employers for mistreatment and bullying, he said.

Employers can take steps to combat bullying by creating policies that forbid it. But a lack of oversight means managers can choose to ignore or selectively enforce the rules when violations occur, said Jason P. Matthews, a Dayton attorney who specializes in labor and employment law.

“The problem becomes, when a violation happens, whether it’s enforced and how it’s enforced,” he said.

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