People are almost always surprised to learn that, despite the serious harms that they can cause, workplace bullying and hostile work environments are not illegal unless motivated by discriminatory or retaliatory bias that the law specifically prohibits. The short version: being a jerk to everyone is, well, perfectly legal.
Workplace bullying can be devastating. Those who are bullied feel humiliated and demoralized. The bullying can literally make them sick, causing stress and anxiety, depression, sleep disorders, and other illnesses. Employers also suffer as absenteeism increases, morale and productivity decline, and companies lose good employees.
Workplace bullying is also far too prevalent. A national survey conducted by Zogby found that 27% of people have suffered abusive conduct at work and another 21% have witnessed it happen. 7% of those surveyed said they were currently being bullied at work. The consequences of bullying were severe: 48% of those who were bullied said that they left their jobs or felt forced to quit because of the bullying, while 13% were terminated (probably in retaliation for speaking up), and another 13% were transferred to a different position.
Even more troubling is that many workplaces do not prohibit or discourage bullying. According to the survey, 72% of respondents felt that employers most commonly condone or even encourage bullying, including by denying it (failing to investigate or claiming it didn’t happen), discounting it (describing it as not serious), rationalizing it (saying it was innocent, or a routine way of doing business), defending it, or even encouraging it. In contrast, only 28% believed that appropriate reactions to bullying are commonly taken, such as showing concern, condemning the bullying, and taking action to eliminate it through policies and procedures.
Fortunately, momentum has been building to raise awareness about and to prevent workplace bullying. Twenty-six legislatures around the country have introduced legislation to take action against abusive work environments.
Here in California, our Legislature has taken a stand against workplace bullying by passing AB 2053. AB 2053 amends Government Code section 12950.1 to require large employers to provide training regarding abusive conduct in the workplace. Since 2005, California employers with 50 or more employees have been required to provide two hours of sexual harassment training to all supervisory employees within six months of their taking on a supervisory role and every two years thereafter. AB 2053 defines “abusive conduct” and requires that a portion of that sexual harassment training time be spent on “prevention of abusive conduct.” “Abusive conduct” is defined as:
conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
The pessimists among us will point out that this law has no teeth and may have little impact on workplace bullying. Why? Because despite this training requirement, workplace bullying remains perfectly legal. In theory, an employer can go through the motions of briefly educating supervisors about abusive conduct every other year during their two hours of sexual harassment training, while continuing to do absolutely nothing when employees are bullied in the workplace and complain about the abusive conduct.
But the optimists among us understand that AB 2053 likely will have a positive impact. As University of San Diego Law Professor Laurence Claus explains in his book Law’s Evolution and Human Understanding, laws express the expectations of a community. In doing so, they help us predict what others in our community will likely do and expect. By passing a law that defines “abusive conduct” and requires training on its prevention, the Legislature is conveying society’s expectation that abusive conduct is not appropriate in the workplace. It is conveying the expectation that employers will take action to prevent and remedy abusive conduct. And it is conveying the expectation that the ball is in each employers’ court to:
- Take a stance that workplace bullying and other abusive conduct will not be tolerated.
- Create policies and procedures regarding abusive conduct.
- Change workplace culture.
Employers should embrace AB 2053. They have only to gain by making sure that employees are treated with dignity and respect. AB 2053 has created the opportunity for employers to update their policies and procedures to make clear that—just as society expects—workplace bullying will not be tolerated. Employers should be sure that employees have a way to report abusive conduct in the workplace just as they can report sexual harassment, discrimination, or other prohibited conduct. They should thoroughly investigate complaints and take corrective action. They should protect workers from retaliation. By taking real action to eliminate workplace bullying, beyond what is required by law, employers can demonstrate to their employees that they are both valued and valuable. We shouldn’t expect anything less.