By Wade W. Herring
Bullies are big news, but most media reports concern children or young adults still in school. What about bullying in the adult world outside of school? What does the law say about adult bullies and their victims in the workplace?
The law attempts to regulate and prohibit serious misconduct. As a general rule, the law does not require people to be fair or nice to one another. The law is not a civility code. Various criminal laws prohibit intentional misconduct such as assault, battery, stalking and terroristic threats.
In 2000, the Georgia legislature passed a law requiring judges to impose longer criminal sentences when the jury found beyond a reasonable doubt that the defendant had acted “because of bias or prejudice.”
Just four years later, the Georgia Supreme Court struck down the law as unconstitutionally vague because the statute did not define bias or prejudice. Additionally, the court was concerned that the law “impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”
Today, Georgia is one of only five states without a “hate crime” law.
Like criminal law, the civil law offers traditional remedies for the victim of a bully’s misconduct. The victim can sue the bully for money damages, asserting such time-tested legal theories as assault, battery, false imprisonment, defamation, trespass or intentional infliction of emotional distress.
In the work world, good businesses create workplaces where employees feel safe and respected. A good work environment also facilitates recruiting and retaining talent. A positive work environment encourages worker productivity.
Employers should prohibit bullying at work to avoid legal problems for the business. Employees who feel mistreated will look for legal remedies, ranging from union organizing, to workers’ compensation claims, to claims of harassment and discrimination.
Federal employment laws prohibit discrimination or harassment because of race, color, national origin, religion, sex, gender, age, disability or genetic status. As with the law generally, the employment laws are focused on serious misconduct.
Thus, the boss can lawfully demand high standards, even when such demands create stress and tension at work. The occasional harsh word or inappropriate joke in the workplace is not against the law. The miscommunications and wounded feelings that are part of every human interaction, even at work, are not illegal.
The law does not provide a remedy for every workplace slight or misunderstanding.
What the law forbids is a repeated pattern of severe or pervasive misconduct that creates an objectively hostile or abusive environment so serious that it interferes with the victim’s ability to do his or her job. The objective severity of the harassment is judged from the perspective of a reasonable person in the victim’s position, considering all the circumstances.
The victim must prove that the conduct was not just offensive but actually constituted discrimination because of race, sex or any one or more of the other protected categories. Employees who believe they are victims of a hostile work environment should first seek a solution at work, but they can always file a charge of discrimination against their employer with the Equal Employment Opportunity Commission (EEOC).
Complaints not resolved at the EEOC can proceed to lawsuits, typically in federal court. Remedies include money damages from the employer/business for lost wages and benefits, compensatory damages for wounded feelings and emotional distress, punitive damages and attorney’s fees and expenses.
Any employer with 15 or more employees (the number of employees required for EEOC jurisdiction) should have written equal employment and anti-harassment policies, complete with a complaint and investigation procedure, as well as an anti-retaliation provision.
On an annual basis, employees should be reminded of the company’s rule against harassment. “Best practices” suggest periodic training for supervisors and all employees on the concepts of harassment, how employees can avoid harassment problems and how to complain if they have a problem.
Your employment attorney can assist with creating and/or reviewing materials, presentations and trainings.
The law prohibits serious misconduct. Good businesses encourage their employees to act according to a much higher standard: Do unto others as you would have them do unto you. Bullying is bad business.
Wade W. Herring II is a partner at HunterMaclean and the leader of the firm’s Employment Practice Group. He can be reached at 912-236-0261 or email@example.com.