Saul C. Glazer, Editor
Axley Brynelson, LLP

Vol. 17, No. 4
April 2008

EMPLOYEE MISCONDUCT

Putting a stop to bullying in the workplace

Michael J. Westcott

To date, there have been no federal or state laws passed to address the issue of bullying in the workplace. That's likely to change soon, however. Thirteen states are currently considering legislation to prohibit workplace bullying, so it's only a matter of time before such a law is adopted somewhere. Wisconsin may not be far behind in the race to legislate workplace civility.

A little background

Despite efforts by creative lawyers to expand the scope of the law covering hostile work environments and harassment, workplace bullying still isn't unlawful in Wisconsin unless it's motivated by an impermissible reason like gender, race, or age discrimination. Indeed, the Seventh Circuit, which covers Illinois and Indiana in addition to Wisconsin, has stated several times that Title VII of the Civil Rights Act of 1964 isn't a prohibition on unpleasant conduct in the workplace, but is violated only when the bad conduct is improperly motivated. The court has made it clear that Title VII isn't a general code of workplace civility, nor does it mandate admirable behavior by employees. The Seventh Circuit has repeatedly pointed out that the fair employment laws don't guarantee a utopian workplace or even a pleasant one.

As a result, there has been a backlash in several states from various organizations in support of legislation prohibiting harassing or offensive conduct that isn't motivated by an unlawful reason. Currently, California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Vermont, and Washington have such legislation pending.

Take the bully by the horns

Recognizing the need to take action against workplace bullying, many proactive employers have adopted policies and procedures to prohibit such conduct. Employers are aware that offensive and overbearing conduct in the workplace has a negative impact on productivity and increases employee turnover. Some companies have adopted policies specifically aimed at bullying, while others have broadened their harassment policies to include any form of harassment regardless of its motivation.

A well-written policy to address workplace bullying can be modeled on your sexual or racial harassment policy. The key, as in all policies, is knowledge and communication. Your written policy should clearly describe the nature of the conduct it prohibits. In an antibullying policy in particular, it's helpful to include examples to illustrate the type of conduct that won't be tolerated. You should also explain that not every type or form of harassment can be specifically identified and prohibited in a policy.

You should disseminate your policy to all employees and require them to sign a form acknowledging that they have received it. Employees subject to the policy should be given documented training so they know what your expectations are as well as how to respond to and report workplace bullying.

When claims of bullying are brought to management's attention, you should investigate them in the same way you handle complaints about unlawful forms of harassment. Confidentiality should be respected to the extent possible. Retaliation should absolutely be prohibited. Remember, when people are being bullied, they have more serious concerns about retaliation than with other forms of harassment.

Help online

There are several websites that can be of assistance if you're interested in addressing bullying in your workplace. Perhaps the most prominent one is www.workplacebullyinglaw.org. We strongly encourage you to start addressing the issue before the law mandates that you do it.

Copyright 2008 M. Lee Smith Publishers LLC

WISCONSIN EMPLOYMENT LAW LETTER provides information about current employment law issues under Wisconsin and federal law. It is designed to alert you to legal issues and does not constitute legal advice. Questions about your company's problems and issues should be presented to the employment law attorney of your choice.