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NFL case opens window into widespread danger of workplace bullying

- - Thursday, November 7, 2013

Not all bullies are in the schoolyard — or in the locker room.

The shocking case of the hazing of Miami Dolphins football player Jonathan Martin by teammate Richie Incognito has focused attention on the larger problem of workplace bullying — and of the difficulties for federal and state officials in trying to define and deter it.

As the Dolphins case unfolds, analysts who have studied the problem say workplace bullying may be more prevalent than many think. Bullying at the office and on the factory floor has become the focus of several proposed state laws, as well as a rallying cry for advocates, employers and employees alike.

According to a 2011 study by the Society for Human Resource Management, the leading trade group for personnel professionals, more than half of the companies surveyed reported incidents of bullying in their workplaces. More than 25 percent of human resources professionals themselves reported that they had been victimized in the workplace. But according to the association, only 43 percent of companies report having an anti-bullying section in their employee manuals.

Workplace bullying can lead to health problems such as hypertension, insomnia, depression and stress. Productivity and the corporate bottom line can suffer as a result of increased employee turnover, absenteeism and a negative reputation.

Statutes against bullying, in person and online, tend to focus on younger victims in school. The few state statutes that explicitly address workplace bullying typically focus on school employees and not the corporate world at large.

The Pew Charitable Trusts' Stateline news service reports that the very definition of what constitutes legal bullying varies from state to state: "Some states describe it as persistent harassment, while others describe it as simply annoying behavior or teasing. Others, such as Florida, lay out specific behaviors, such as harassment, stalking and assault, which also are criminal acts."

The confusion leads some to question whether employers are doing enough to educate and protect their employees.

David C. Yamada, a law professor and director of Suffolk University Law School's New Workplace Institute, has drafted a model "Healthy Workplace Bill" which tries to define what constitutes an "abusive work environment."

He wrote recently that workplace bullying tends to get overlooked because the human interest appeal typically doesn't reach the level of bullying children.

"Although workplace bullying is one of the most common forms of interpersonal abuse at work, most people targeted for this mistreatment are unlikely to find the media interested in their stories. In this case, without the growing media attention, it's possible that the whole thing would've been swept under the rug," said Mr. Yamada. "Most bullying targets must deal with the abuse on a wildly uneven playing field, and having a legal wedge will help to level things out."

Weighing legislation

No state has passed an anti-bullying law for the workplace, although 25 states have considered legislation since 2003 to allow workers to sue for harassment without showing discrimination. This year alone, the Healthy Workplace Bill has made the rounds in 11 states.

Australia, Britain and Sweden have laws on the books intended to protect against workplace bullying.

Catherine Mattice is president of Civility Partners, a corporate consulting firm that specializes in office bullying and "negative workplace behaviors. She said the efforts at the state level have moved slowly but mark a good step in the right direction.

Nevada, she noted, is the only U.S. state that has a law against workplace bullying — though only for schools. Nevada's law states that neither adults nor students shall engage in bullying.

"The fact that they included adults in that piece is huge," Ms. Mattice said.

In Massachusetts, 21,000 state employees had a collective bargaining agreement that addresses workplace bullying. Although the agreement has not been passed into law, the contract policy that government employees are protected from workplace bullying remains a step in the right direction.

Mr. Yamada said New York may prove a pioneer, with 79 state legislators signing on to a bill to curb workplace bullying.

Despite efforts to ban workplace bullying, the issue remains in a legal gray area. Although most states have enacted laws against employee harassment, the precise definition of a hostile work environment remains elusive.

Harassment, discrimination and hostile work environments are considered workplace bullying, but federal discrimination laws cover only "protected classes," such as those based on race or gender.

"If your bully is an 'equal-opportunity bully,' then you have no legal recourse. Equal-opportunity bullying is legal," Ms. Mattice said.

Likewise, workplace bullying can include nonviolent tactics such as taunting or social exclusion, which are not covered by the law.

Curbing lawsuits

For corporate managers and lawmakers alike, one problem has been how to curb bullying without encouraging lawsuits filed on frivolous or nebulous grounds. Critics fear that everyday workplace disputes and corporate power plays could explode into overblown lawsuits, thereby draining companies' financial resources.

According to the Workplace Bullying Institute, 37 percent of adult Americans say they have been bullied and 12 percent say they have witnessed instances of bullying, but codifying what they have experienced in an enforceable law or corporate policy is more difficult.

"But how do you define bullying?" Lori Armstrong Halber, a partner with Fisher & Phillips LLP, said in an interview posted on the Workplace Bullying Institute's website. "In an effort to avoid litigation, employers would be mediating all sorts of employee interactions. They'd be hearing things like, 'He was mean to me,' and 'She doesn't like me.'"

Many victims of bullying in the workplace do not confront their abusers, much less report the abuse to their supervisors, for fear of being labeled "overly sensitive" or out of touch with workplace culture. A 2007 study by the Workplace Bullying Institute found that, out of 7,740 survey respondents, 40 percent never informed their employers about hostile work situations.

Gary Namie, director of the Workplace Bullying Institute, said the tempest stirred up by the Miami Dolphins' hazing case could clear the way for more victims to come forward.

"It took extreme bravery for 6-foot 5-inch, 312-pound Jonathan Martin to file a complaint about an abusive work environment," said Mr. Namie. "This encouraged all of the people outside of sports who are bullied in their workplace to know that being targeted has nothing to do with weakness. The Miami Dolphins did something that few employers ever do outside of sports. They suspended the alleged bully."

In light of the bad economy, some analysts fear workplace bullying may be getting worse. Prior to the recession, most workers could leave if they were mistreated. Now, with an uncertain job market, workers may not have any choice but to stay put and tolerate the abuse.

Those who work with anti-bullying laws say persistence is needed, especially because state legislation is making headway slowly.

"We need to use stories like this one [in Miami] to educate employers about the human and organizational costs of workplace bullying," said Mr. Yamada. "After all, what happened to Jonathan Martin is happening to many thousands of workers every day."

Said Ms. Mattice, "My general advice would be not to have an anti-bullying policy, but instead to have a healthy workplace policy. So rather than telling employees what not to do, the policy is much more effective if you tell employees what to do."