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Silence is not golden when it comes to workplace bullies

Bullying in the Workplace_Professional Liability

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Recent surveys say most adult American workers (72%) are aware of workplace bullying.  According to the Workplace Bullying Institute’s (WBI) 2014 Zogby poll, 27% said they suffered abusive conduct at work. An additional 21% said they witnessed bullying.

At the time of WBI’s 2014 survey, there was no state or federal law enacted to compel American employers to address abusive conduct in the workplace that occurs outside the limited definitions of illegal discriminatory actions. During 2014, however, WBI introduced The Healthy Workplace Bill, which set out a clear definition of workplace bullying and protects both employers and employees. Legislators in about 30 states have introduced a version of WBI’s Healthy Workplace Bill but Tennessee is the only state to outlaw workplace bullying at its public agencies.

Even without passage of anti-bullying legislation, employers still face claims for bullying conduct under existing anti-discrimination laws such as Title VIII of the 1964 Civil Rights Act and under legal theories such as harassments and intentional infliction of emotional distress and/or workers’ compensation.

It should be noted that companies doing business outside the US need to be aware that anti-bullying laws have been implemented in a number of countries including Australia, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Luxembourg, Norway, The Netherlands, Poland, Serbia, Spain, Sweden, Thailand, Turkey and the UK.

On January 1, 2015 California upped the ante against bullying

As of January 1, 2015, California enacted the first “anti-bullying” legislation affecting the private sector in the US. The California amendment (AB 1825) defines bullying as “abusive conduct” and requires that California employers with 50 or more employees include “prevention of abusive conduct as a component of the sexual harassment training and education.” 

The amendment takes on bullying in the workplace on two fronts. First, it mandates the training and educating of managers on how to avoid bullying behavior in the first place. Second, it offers greater support for impacted employees who speak up about harmful worker behavior that is not otherwise protected by law – i.e., based on race, color, sex, national origin or religion.

Impact of bullying on employers

WBI founders Gary Namie and his wife Ruth Namie, say, “Victims suffer from depression, anxiety and panic. They take more sick days, resulting in higher rates of absenteeism. They have higher rates of stress-related health problems, increasing employers’ healthcare costs. They are not motivated, engaged or productive.”

However, bullying affects more than the targeted individual or individuals. It can have a negative impact on the entire organization. It decreases the effectiveness of teams and lessens corporate productivity. Tangible costs include unwanted turnover of key skilled personnel, absenteeism, higher insurance costs (due to absenteeism resulting from health issues) and litigation expenses. Intangible costs may include damage to an institutional reputation and an impaired ability to recruit and retain the best talent.

WBI has also polled business leaders about workplace bullying. According to the 2013 poll of business leaders and CXO-level corporate leaders, 68% considered “workplace bullying a serious problem”. The consequences of workplace bullying should cause employers to take note. So why don’t more business do something about bullying? The most obvious reason is that they are unaware that it is happening. In fact, WBI research indicates that the most common reaction of employers to bullying was denial (25%) and discounting (16%).

 

 

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Victims of bullying have higher rates of stress-related health problems, increasing employers’ healthcare costs.

 

What is workplace bullying?
Another part of the problem is the definition of bullying. What exactly constitutes bullying? Is the supervisor providing constructive criticism or needlessly belittling employees? Are employees engaging in harmless banter or abusive conduct?

WBI defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (targets) by one or more perpetrators”. The new California amendment calls it “abusive behavior”. The most common forms of workplace bullying include shouting or swearing at an employee, singling out an employee for unjustified blame, excluding an employee from company activities, having an employee’s work or contributions ignored, language or actions that embarrass or humiliate an employee and practical jokes, especially if they occur repeatedly to the same person.

The typical bully creates an atmosphere of fear. Often, victims are reluctant to report bullying, especially if it is being done by their supervisor or colleague. They are afraid of being viewed as a troublemaker and/or losing their job. This fear is realistic. According to WBI, the majority of workplace bullies (56%) are supervisors; 33% are co-workers and 11% are from subordinates, bottom-up.

Men account for nearly 69% of bullies. They tend to bully female (57%) and male (43%) employees equally. Female bullies (31%) are more likely to bully other females (68%), with men accounting for 32% of female targets. However, women make up 60% of the targets of bullies, men make up 40%.

Beyond gender discrimination, race is another huge factor in bullying. Hispanics were targeted about 32% of the time; African Americans 33%; Asians 33%; and Whites about 24%.

More disturbing is that co-workers rarely helped their bullied colleagues. The WBI survey said that co-workers “didn’t want to get involved”. Only 29% took positive steps – i.e., privately helping the victim, attempting to intervene or resolve the incident. About 38% did nothing, while 7% isolated or ostracized the victim and 4% sided with the bully.

Preventing workplace bullying
Employers need to develop clear company policies against bullying and communicate those policies to employees. Also, companies doing business overseas need to ensure that they have specific anti-bullying policies if they want to do business in the countries cited above in this article.

The most common comment from employees is that they are not aware of a company policy against bullying. Further, many don’t realize how serious the effects of bullying can be on an employee or employer. Given the potential harm of workplace bullying, here are some practical tips to help companies prevent bullying in the workplace.

  1. Conduct an honest review of the company’s culture. Look for reduced productivity in a team or department. Is there an increase in stress-related claims or absenteeism? Are legal costs rising due to dispute resolution, harassment and workplace violence claims, settlements or trials?
  2. Establish a code of conduct policy. Draft a strong, clear message that bullying (gender, racial and religious discrimination) will not be tolerated. Work with employees, management and executives as well as appropriate outside resources to develop the appropriate language.
  3. Create and implement managerial and supervisory training programs that address bullying conduct and offer constructive ways to intervene.
  4. Establish a formal complaint process. Take all complaints seriously. Conduct a thorough and neutral investigation.
  5. Develop a uniform policy to address and resolve any complaints in a timely fashion.

Here’s how XL Group can help
For small and mid-size companies, a costly workplace lawsuit or the impact of bullying behavior can dramatically affect the bottom line and the reputation of the company. XL Group’s Private Commercial Employment Practices Liability Insurance (EPLI) clients benefit from comprehensive insurance coverage.

XL Private Commercial has partnered with Enquiron to bring our EPL policy holders the XL Employment Risk Management HELPLINE. Their insureds benefit from unlimited expert HR advice and risk management tools including phone service, online portal and monthly HR Express Updates. Clients are offered expert risk management guidance and advice on how to proactively strengthen their HR policies and procedures. If a company needs additional consulting assistance outside of the core HELPLINE, XL partners with industry leaders who provide resources offering training at your location, live over the web or online self-directed courses; HR audits, and employee handbook assistance.

The necessary first step is to ensure that your company has XL’s EPL Insurance. That guarantees that you will have access to proactive risk management resources and assistance in developing anti-bullying policies and procedures to help mitigate any potential loss.


About the Author

Julie Marvel keeps our clients informed about the emerging issues and regulations influencing employment practices litigations. XL Group’s Private Commercial unit offers a broad suite of management liability coverages, including EPLI and D&O tailored for small and mid-size private companies.

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