Monday, June 14, 2010

Empathy does not require liability

This morning, Judy Greenwald at Business Insurance has an article discussing the recent spate of anti-bullying laws making the rounds in various state legislatures. Over at Minding the Workplace, David Yamada, founder and president of the New Workplace Institute, takes issue with the management-side lawyers quoted by Ms. Greenwald for not understanding the proposed law’s liability threshold, and for not being empathetic towards people who’ve been bullied:

The … article indicates that many management-side lawyers who oppose the Healthy Workplace Bill may not understand the relatively high thresholds imposed for winning a claim, as well as the provisions built into the statute that discourage frivolous claims and provide legal incentives for employers to act preventively and responsively toward bullying at work…. What’s absent from the piece is the most disturbing, namely, the lack of acknowledgement of the destructive effects of abusive treatment on workers’ mental and physical health.

As one of the unsympathetic lawyers Ms. Greenwald quoted, I’d like to respond.

I am not pro-bullying. In fact, I abhor bullying – in the workplace, in the schoolyard, anywhere. Anyone who tells you they are in favor of bullying likely is a bully themselves. I recognize that bullying can have negative effects on the victims. It is not acceptable to bully someone. And, employers who turn a blind eye to bullying—whether by managers, supervisors, and co-workers—are doing their businesses and their employees a disservice.

But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit. To quote Michael Fox on this very issue, “Once an employer has been sued, they have lost.” And that is the point. We can all agree that harassment “because of” [race, sex, religion, disability, etc.] needs some legal teeth behind it to change employers conduct. It’s not bullying for bullying’s sake, but instead bullying because of an inherent characteristic. Indeterminate bullying, though, should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

So, what can (and should) employers be doing now about workplace bullying?

  1. Review current policies. I would imagine that most handbooks already have policies and procedures that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

  2. Take complaints seriously. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

To the proponents of the anti-bullying laws: we opponents are not insensitive to the impact bullying can and does have on people. We simply ask that you also look at the flip-side—the impact these laws will have on businesses.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or