Last Nov. 19Fox Rothschild LLP had a guest blogger on the subject of bullying: Ellen Pinkos Cobb, Esq., a senior regulatory and legal analyst for the The Isosceles Group. In her book “Bullying, Violence, Harassment, Discrimination and Stress” (2012) updated for 2014, she covers new developments in countries all over the world.

The NFL/Martin bullying investigation report

Cobb's last guest post on Nov. 19 began: ”With alleged harassment on the Miami Dolphins football team, there is increased discussion of workplace bullying. It’s about time. The United States lags behind many countries in this area.”

Now that the NFL report about bullying/harassment within the Dolphins’ workplace has been released, Cobb says about the damage inflicted by bullying in the workplace:

“Like many others, I just read the NFL-commissioned bullying investigation report which found that harassment of Jonathan Martin resembled ‘a classic case of bullying, where persons who are in a position of power harass the less powerful.’ I don’t understand. A person is treated repeatedly, harshly, unacceptably, in violation of a policy, just abused, in his workplace. But it is OK apparently. There is no law against workplace bullying in the United States.

We are behind. Other countries have laws against repeated, severe, and pervasive mistreatment at work, including Finland, Sweden, France, Serbia, and Canada. Starting Jan. 1 of this year, a worker in Australia who believes he/she has been bullied at work may apply to a commission and have an investigation conducted. If the commission determines that workplace bullying has occurred, an order to stop the bullying may be issued to the employer. So far, no flood gates have opened.

Workplace bullying is like sexual harassment. Of course it cannot be measured. But with a law, it can be determined and lessened. Public perception can change.

For those who argue it was only Martin’s problem: maybe not. A study has found that bullying, an internal occurrence undertaken by manager and/or co-workers, leads to more workers leaving their job than violence, which is typically inflicted by sources external to a company.”

Bullying as affecting productivity

Cobb also said that “Other costs to a company beyond loss of skill and experience when a worker leaves due to being bullied: increased staff turnover and loss of morale, absenteeism, potential workers’ compensation claims, increases in health care and disability, early retirement and counseling program costs. Litigation. Harm to a company’s reputation. Disruptive all around.”

Finally, Cobb noted that “This is the part where I mention I have been a target of bullying. I haven’t. I have not been bullied in the workplace or at school. But I have seen it and its disruptive effects on others in the workplace, and I don’t understand why there is not a law against it, not here, not in 2014.”

Bullying summarized 

There are currently no laws against workplace bullying in any state within the U.S., although 25 states have had such laws introduced within the last number of years (all voted down), and it is only a matter of time before such laws likely become enacted. Justice Antonin Scalia commented in one Supreme Court case that the anti-discrimination laws did not enact a “civility code” in the workplace.  If anti-bullying legislation is enacted this would be a first step to such a “civility code.”  Is this a good idea?  So far, half the states did not think so – but that was then and this is now.

Nobody likes or condones bullying.  Employers have much to be concerned about when it comes to workplace bullying:  all studies point to decreased morale, decreased job satisfaction, increased absenteeism and an overall decrease in workplace productivity, to say nothing about the personal toll bullying takes on the bullied.  But what will be the effect of anti-bullying laws?  How will they be written so as not to be overbroad and subsume normal workplace interaction?  And how will they affect the employer-employee relationship?

It is interesting to note that the new NFL report discussed by Cobb lists a number of authoritative articles on bullying which the investigators considered – and not one was a legal article.  Nor did we see a single legal case cited – a rarity for lawyers in any situation.  But the point is that there is no legal precedent in the U.S. so that the only authorities considered are social scientists and workplace psychologists.       

Richard Cohen, a partner with Fox Rothschild LLP in New York, edits the law firm’s blog. He can be reached at 212-878-7906 or rcohen@foxrothschild.com.

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