By Procopio Partner and Labor & Employment Practice Group Leader Marie Burke Kenny

As employers across the economic landscape seek to operate at peak efficiency, they are increasingly held accountable to meet demanding performance goals. As a result, employees at every level are experiencing increased tension and uncertainty. That can naturally lead to workplace tension and sometimes even bullying. No matter the circumstances, bullying should never be tolerated.  In today’s workplace, it is critical that employers create a work culture that rejects bullying, promotes reporting and promptly resolves any incidents of bullying.

In order to prevent bullying, it is important to understand the dynamics of bullying.  In the workplace, bullying typically occurs when there is a power imbalance. The bully usually acts aggressively with the intent of subjugating the will of another (less powerful) person. A supervisor who sets a high standard and holds employees accountable to that standard is generally is not guilty of bullying, but rather is just doing his or her job. But if the supervisor’s management style exhibits a pattern of mistreatment, then he or she may be a bully.

Workplace bullying involves the “repeated, malicious, health-endangering mistreatment of one employee… by one or more employees,” as Gary and Ruth Namie describe it in The Bully at Work. Such mistreatment can come in a variety of forms. It may be verbal, such as insults, name-calling, overly harsh criticism, or even shouting. It may also be non-verbal, such as hostile glares, intimidating gestures, or the “silent treatment.” Often, it may involve work interference, such as unreasonably heavy work demands, constantly changing standards or false accusations of mistakes. Bullies often feel justified in their behavior and may be unaware of the harmful consequences of their actions.

Victims of bullying suffer considerably, according to numerous studies. Symptoms can include debilitating anxiety, clinical depression and even post-traumatic stress disorder. Some victims might feel guilt over “allowing” the victimization to have occurred, as well as an extreme frustration with a lack of justice. This psychological trauma can manifest itself physically, from chronic fatigue syndrome to cardiovascular problems such as strokes and heart attacks.
Bullying is far too common in today’s workplace. A Society of Human Resources Management survey found that 51% of employees—that’s one out of every two—have suffered from incidents of bullying in the workplace. A majority of bullies—62%–are men, while a majority of victims—58%–are women. The survey also found that female bullies target other women 80% of the time.

The most troubling finding? 83% of bullies are supervisors.

Because bullying is largely dependent on the use of superior power or influence to intimidate someone, supervisors are uniquely positioned to perpetrate acts of bullying. It is therefore critically important that employers cultivate a work environment that discourages and punishes bullying by supervisors. Employers who unwittingly permit a culture of bullying are not only putting employees at risk of emotional harm, but may also face legal liability under many state and federal employment laws.

One of the legal risks for employers is that the victim could belong to a protected class. If there is any evidence that the bullying was motivated by a victim’s gender, race, ethnicity, national origin, citizenship, age, sexual orientation, religion, or many other categories, the bullying may constitute unlawful harassment and subject the employer to significant liability. Additionally, a victim of bullying may file a workers’ compensation claim seeking compensation for psychiatric, mental or emotional injuries resulting from inappropriate work stress.

Employers also should not underestimate the toll bullying can take on the bottom line. Bullying may lead to reduced productivity, decreased retention of valued employees, steep fines and settlement costs, as well as adverse publicity.

So what can an employer do to ensure both a productive and healthy workplace while adhering to the law?

Proactive steps an employer can take include:

• Creating an anti-bullying policy. Adopting and distributing a robust policy that clearly identifies unacceptable behavior communicates to employees that management will not tolerate bullying.   The policy should encourage employees to report bullying, even if anonymously. Employees need to agree in writing to abide by that policy as a condition of employment.
• Providing anti-bullying training. It’s not enough to adopt a written policy prohibiting bullying.  In California, employers with more than 50 employees are also required to provide anti-bullying training. Supervisors and employees should be trained to fully understand what constitutes acceptable workplace conduct and what will not be tolerated.

Ongoing practices aimed at prevention include:

• Keeping your eyes and ears open. When bullying occurs in the workplace, somebody other than the victim usually knows. Even if coworkers are reluctant to report bullying, obvious behaviors such as aggressively berating an employee in a staff meeting or insulting someone in a group email can be red flags. Likewise, unusual behavior in the victim such as despondency, reduced productivity, and frequent absences, might be a sign that something isn’t right. Paying attention to repeated comments or rumors about certain difficult “personalities” in the workplace can also lead to the discovery of bullying. The key to prevention is vigilance.
• Taking allegations seriously. Encouraging employees to report incidents of bullying, regardless of whether they are the victims or witnesses, is critically important. The best way to create a culture of reporting is to demonstrate that the allegations are treated seriously and resolved promptly. As such, all allegations of bullying should be investigated. It’s important to approach it objectively, allowing both the complaining employee and the employee accused of bullying a full opportunity to participate fully in the investigation.
• Taking corrective action when necessary. If the investigation corroborates the allegation of bullying, employers should take corrective action. That could involve a range of disciplinary steps based on the severity, duration and scope of the bullying. It is important to remember, however, that a bully has rights too. Due to privacy rights, a California employer may be restricted from sharing details of corrective action with other employees. However, in the wake of effective corrective action, marked improvement in the workplace will become apparent.

Employers are responsible for providing employees with an environment that is a healthy and safe. Doing so is required by law, but it is also the right thing to do.  Taking effective and aggressive steps to eradicate bullying in the workplace also improves employee morale, enhances employee retention, prevents lawsuits and ultimately benefits the bottom line.