Thursday, May 31, 2007

Sticks and stones may break my bones...

As long as harassment has been illegal, the lynch pin of its unlawfulness has always been the protected characteristic of the person being harassed. Harassment in and of itself is not unlawful, but instead harassment because of sex, race, age, religion, disability, national origin, etc. The Supreme Court has long made it clear that the employment discrimination laws are not a "code of general civility." Legislative pushes in 13 different states are attempting to change that to make general workplace bullying illegal. There are even two different organizations promoting these legislative efforts, and Bullybusters identifies itself as the "National Coordinators of U.S. State Legislative Initiatives to Stop Workplace Bullying." The purpose of these bills is to extend protection to all employees from abusive work environments regardless of protected group status. Thankfully, Ohio is not one of these states (yet). It would be an understatement to say that these laws, if passed, would hamstring the ability of companies to manage their workforces. Anti-bullying laws could also provide a death-blow to employment at-will by eliminating protected classes. It would not be a stretch to imagine an employee suing for constructive discharge as a result of being bullied.

Nevertheless, because this issue is perceived to be an epidemic, it is one that could achieve a groundswell of popular support. According to a March 2007 survey conducted by the Employment Law Alliance, 44% of workers claim to have been bullied on the job, and an astounding 64% feel they should have the right to sue if bullied. Only 16% could emphatically say that those bullied should not be able to sue. The survey lists specific examples of perceived workplace injustices that employees report as "bullying":

  1. Making sarcastic jokes or teasing remarks (60%)
  2. Criticizing performance in front of others (59%)
  3. Interrupting in a rude manner (58%)
  4. Giving a dirty look (56%)
  5. Raising one's voice or yelling (55%)
  6. Deliberately ignoring (54%)
  7. Making personal insults (50%)
  8. Demeaning or embarrassing comments in person or by email (40%)
  9. Spreading rumors or inappropriately sharing confidential information (40%)
  10. Making inappropriate physical contact (17%)
  11. Physically threatening (11%)

Robert Sutton, Professor of Management Science and Engineering in the Stanford Engineering School, published an entire book on this topic, The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't. According to Professor Sutton, there are a dozen common, everyday tools bullies use, a list that closely mirrors the incidents of bullying reported in the Employment Law Alliance survey.

This movement is frightening. Readers of this blog know that I am a strong advocate of employers treating employees fairly. Fair treatment, that is, treating employees the way you would want to be treated if you were in their shoes, is the best proactive approach employers can take to avoid litigation. But, do we really need laws that make it illegal for a manager to be a jerk. We are creating a society of wusses. It's ridiculous that kids can't play dodgeball anymore because the less athletically gifted might get hurt (lest anyone prejudge my biases, I was the kid in the middle of the circle getting pounded by red rubber balls). It's just as ridiculous that a manager cannot throw a tantrum, justified or not. Bosses come in all shapes and sizes, and have varying degrees of "touchy-feeliness." Those that cannot handle working for a bullying boss will find work elsewhere, and the companies that tolerate or foster these types of managers will be left with a revolving-door workforce that ultimately hurts the bottom line. Bullying, however, is not akin to the historic, invidious, systemic discrimination that needs legal intervention to remedy. Let us all hope that common sense prevails and this movement dies a quick death.