Tuesday, February 3, 2009

Workplace bullying can be difficult to distinguish

One of the emerging issues in employment law today is workplace bullying.
Laws have been proposed in at least a dozen states that would address abusive behavior in the workplace, but so far none has become law. The difficulty seems to be in distinguishing bullying from relatively common (albeit obnoxious) management techniques.

In California, the Legislature considered a bill several years ago that would have banned malicious behavior by an employer or manager "that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests." It died in committee, partly because it was feared that the broad definition would lead to a flood of lawsuits.

Nearly every week I get a call from an employee who complains about a hostile environment at work. When I ask more questions, I often find there is no legal recourse because the boss treats everyone the same way. He or she is an equal opportunity jerk, and the laws that protect employees from discrimination and harassment are of little use in this situation.

But are the courts the best place to address this problem? Can a judge or jury right all of the wrongs – large and small – that people experience on a daily basis? Shouldn’t we expect to take some things in stride and take some responsibility for the way we allow ourselves to be treated?

Discrimination on the basis of status is different. When being female, older or Latino is the cause of unfair treatment, it’s an institutional problem. But when one person feels intimidated by another, it’s often a function of their specific relationship, not the result of a widespread societal bias.

Of course, assault and battery is still illegal, as are threats of violence, even at work. That is not to say that bullying is OK. It’s not.

It’s very damaging to an organization to allow a manager to rule by intimidation. It has been estimated that a single abusive manager can waste $180,000 in a single year.

Even if that manager produces profits in the short run, he or she is killing the goose to get those golden eggs. There is no excuse for genuine abuse in the workplace, but a legal definition needs to be narrower than simply "hostile" or "offensive," or we truly risk having courts second guessing every interaction between employer and employee.

HR Consultant Catherine Mattice has studied workplace bullying extensively. She recommends beefing up the employer’s communication practices to avoid the potential losses and liabilities that a generally hostile workplace – even a legal one – can entail.

On her Web site, www.noworkplacebullies.com, she points out ways to recognize bullies in your workplace and steps you can take to reduce dissatisfaction and boost morale. In these times, that’s not a bad goal for any employer.

By Lou Storrow, Chairman of the Carlsbad Chamber of Commerce Board of Directors, Feb 01, 2009

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