Most agree that all bullying is inappropriate, but is workplace bullying unlawful? Technically, it usually isn’t. While physical attacks are illegal, mere insults, shouting, generating rumors, or giving “the cold shoulder” typically are not enough to produce a valid legal claim. However, there are some notable exceptions. Under certain laws, bullying may be a basis for a lawsuit if it is directed towards legally protected characteristics.

Generally, bullying is defined as intentional harmful conduct towards others. This can include verbal harassment, threats, insults, or physical violence. Bullying can also occur in the form of coercion, such as manipulation, generating rumors, or blackmail. This conduct can also extend to outside the workplace, such as stalking. Although there can be one singular occurrence, workplace bullying tends to occur in patterns. There is often an imbalance of power between the harasser and victim, such as a supervisor harassing employees.

Effects of Workplace Bullying

Clearly, bullying can cause physical and psychological distress for the victim. Moreover, bullying can also have harmful effects on an organization as a whole. If offensive conduct continues, it can lead to an organizational culture that accepts this type of behavior. This leads to lower employee morale and higher turnover. It can also lessen overall productivity.

Workplace Harassment

Harassment based on protected characteristics is a type of discrimination. Title VII of the Civil Rights Act of 1964 protects employees from harassment based on sex, color, national origin, race, and religion. This includes protection from sexual harassment. Other federal laws, such as the Age Discrimination and Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act also prohibit harassment. State laws also prohibit discrimination on these and other characteristics.

Harassment involves conduct that results in changing the terms or conditions of the victim’s employment. If offensive comments are directed at an employee’s protected characteristic or only to employees of a specific characteristic, there may be a basis for legal action. The standard for determining harassment is how a reasonable employee perceived the comment or statement. The speaker’s intent is not a relevant factor.

If an alleged victim can prove that unlawful harassment occurred, the employer can be held liable for the conduct. This could be the case even if the employer was unaware of the behavior, if the court finds that they should have known.

For more, read “What Makes Workplace Harassment Unlawful?”

Equal Opportunity Harasser Defense

Employers occasionally assert an “equal opportunity harasser” defense to refute the assertion that the offensive conduct was directed at a protected characteristic. For instance, a supervisor shouts at all employees regularly. When an employee attempts to bring a lawsuit where one of the allegations is harassment due to his race, etc., the employer will respond the conduct was not directed towards any protected characteristic because that supervisor shouts at all employees regardless of race. This can be a legally valid and effective defense to a claim of harassment. However, allowing this management style is not necessarily good for employee morale or deterring harassment complaints in the first place.

Common Law Tort Claims

Even if the conduct does not relate to a protected category, there is still a risk of litigation. If the offensive conduct becomes sufficiently outrageous, employees might have grounds for a tort claim. The legal standard for these claims is usually higher for plaintiffs than under the employment discrimination statutes. Where successful, damage calculations in these cases relate to the alleged mental suffering by the plaintiff as a result of the defendant’s conduct.

Protected Concerted Activity

The National Labor Relations Act protects employee activity in furtherance of collective goals. This means harassment, intimidation, or bullying of other employees on behalf of union objectives is protected under this federal law that applies to many private employers even if their employees are not unionized. For example, employees who repeatedly pressure other employees to call in sick on a particular day to stage a “sick-out” protest of company policy may have protection from discipline. This protection even extends to workplaces without unions, so long as the activity at issue aims at benefitting employees collectively in their employment.

Workplace Civility Policies

Although workplace bullying is not illegal, employers often have workplace civility policies. These prescribe discipline or termination of employees who bully other employees. These policies are most effective when there are clear definitions of terms like “bullying” and “harassment.”

Potential Workplace Bullying Laws

So far, at least 29 states have introduced bills aimed at making workplace bullying illegal. However, none of these bills have passed, so bullying in the workplace is currently not expressly illegal in any state. Remember, however, that many states have harassment laws similar to or more extensive than federal laws.

New York is one state where the Legislature might finally pass anti-bullying legislation before too much longer. There, the “Healthy Workplace Bill” has been reintroduced several times, but has not yet passed. If the bill ever succeeds, it will create a legal claim against employers who allowed bullying to occur.

The Healthy Workplace Bill, as previously proposed, would make it unlawful for employers to subject employees to an “abusive work environment.” This is defined as “a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee, and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such employer after receiving notice thereof, fails to eliminate the abusive conduct”. Potential remedies under this bill include reinstatement, removal of the harasser from the plaintiff’s work environment, back pay, medical expenses, punitive damages, and attorney fees.

Employer Precautions

Although workplace bullying itself isn’t (yet) per se illegal, it’s not something employers should tolerate. If nothing else, with so many protected categories under state and federal employment discrimination statutes, any bullying could prompt a harassment complaint. Of course, beyond the risk of litigation, bullying hurts employee morale and hence productivity.

Still, anti-bullying laws would be very burdensome for employers. They would go far beyond traditional legal risks. Employers would need to become even more proactive in ensuring employees are nice to each other. That will be a tall task for many companies on short notice. That’s another good reason to start now in trying to improve interpersonal relationships between co-workers and with their supervisors. And, hopefully, there would be many positive impacts on the business beyond avoiding lawsuits.

Special thanks to University at Buffalo Law School student Erin Killian for her work on the preparation of this article.