You may recall some recent high profile stories in the media involving teenagers committing suicide as a result of being bullied by their peers. However, bullying is not limited to the playground or teenagers engaged in social media. Recent surveys indicate that bullying is also prevalent in the workplace. For example, a survey commissioned earlier this year by the Workplace Bullying Institute indicated that 27% of Americans have suffered abusive conduct at work, while 72% of those surveyed are aware that workplace bullying happens.
The consequences of bullying in the workplace are staggering and should cause employers to take note. A 1990 study conducted by the Bureau of National Affairs estimated that U.S. businesses lose five to six billion dollars annually in decreased productivity caused by "real or perceived abuse" of employees. And research has indicated that workplace bullying leads to employee turnover, decreased morale and affects the physical and mental health of victims and their families.
But while workplace bullying may be identifiable after the fact or in the aggregate, it can be much more difficult to identify the bad behavior contemporaneously. That is, is your supervisor providing constructive criticism or needlessly belittling employees? Are your employees engaging in harmless banter or abusive conduct? Moreover, while a company's investigators may be trained to identify behavior which could lead to legal liability, bullying, while harmful, may not always result a legally cognizable claim. Indeed, while efforts have been made to introduce anti-bullying legislation such as the Healthy Workplace Bill in over one-half of the states, no specific anti-bullying legislation has yet passed in the United States.
Even without passage of anti-bullying legislation, employers may still face claims for bullying conduct under existing anti-discrimination laws such as Title VII of the 1964 Civil Rights Act, under legal theories such as harassment and...