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Bullying Legislation

Overview of Anti-Bullying Legislation in the United States

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Being made to feel like an outcast
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Workplace advocates have been pushing anti-bullying legislation in the United States for many years. Twenty-one states have introduced workplace bullying legislation known as The Healthy Workplace Bill but no laws have been enacted; thirteen states are active in 2012 with 18 current bills.

Josh Van Kampen, Esq., of Van Kampen Law, PLLC, in Charlotte, North Carolina, provides the following summary of workplace bullying laws in the United States.

There is no federal law that expressly prohibits bullying in the workplace or otherwise. While efforts at prohibiting bullying in the education sector have picked up steam at the state level (48 states have passed some form of anti-bullying legislation in schools), there has been no serious effort to enact legislation prohibiting bullying in the workplace. As a result, workplace bullying victims are left to scour a patchwork of other federal and state laws that (though not necessarily directed at bullying) that may nonetheless encompass the bullying behavior at issue.

Victims may find some protection through state common law torts like intentional infliction of emotional distress or battery. For example, if the bullying behavior included offensive, unwelcome touching, that conduct can constitute civil battery. Alternatively, if the bully behavior is egregious enough it may be sufficient to support a claim for negligent or intentional infliction of emotional distress. However, these torts are difficult to prevail under because they require the behavior to be completely outrageous.

Nonetheless, there are a few "bright spots" where state law torts have found to prohibit bullying behavior. In Raess v. Doescher, 883 N.E.2d 790 (2008), the Indiana Supreme Court upheld a $325,000 compensatory damages award for civil assault brought by a perfusionist (an operator of heart/lunch machine during open heart surgery) against a heart surgeon. The behavior at issue in that case included the surgeon rapidly advancing on the plaintiff with clenched fists, piercing eyes and beet-red face, screaming and swearing at him. According to the plaintiff, he backed up against a wall and put his hands up, believing that the surgeon was going to "smack the sh*t out of him."

Federal employment laws may also offer some protection to bullying victims, but that protection hinges precariously on the motive of the bully. The bully must be motivated by the victim's protected status. For example, if the bully is motivated by the victim's race such that he has targeted African-Americans for bullying, but not whites, that bully behavior could constitute a racially hostile work environment. On the other hand, if the bully is motivated by a personal dislike for the victim unencumbered by a racial or gender bias, the federal employment laws would offer no protection.

For example, a former Bausch & Lomb Inc. employee's evidence established "at most, workplace bullying completely detached from any discriminatory motive," the U.S. Court of Appeals for the Second Circuit ruled, affirming the dismissal of her harassment and retaliation claims (Vito v. Bausch & Lomb Inc., 2d Cir., No. 10-756-cv, unpublished opinion12/17/10).

Similarly, a factory worker failed to show that her female co-worker sexually harassed her because the co-worker's conduct was "more indicative of humiliating or bullying behavior" than a sexual attraction, a divided U.S. Court of Appeals for the Fifth Circuit ruled (Love v. Motiva Enters, LLC, 5th Cir., No. 08-30996, unpublished opinion 10/16/09). Love's co-worker, Jeanne Sirey, allegedly called her offensive names, twice touched her under her underwear, and made other unwanted physical contact, such as trying to hug Love and repeatedly rubbing her breasts against Love. Those incidents did not "support an inference of sexual attraction and implicit proposals for sex in light of Sirey's consistent insults toward Love and demonstrated negative feelings about Love and her appearance," the court held. "Sirey's conduct is more indicative of humiliating or previous bullying behavior."

Unfortunately, it is likely to take several Columbine-like catastrophes to marshal support to broaden employment protections to include protection from bullying. Yet, groups like the Chamber of Commerce are likely to vehemently oppose such legislation since it exposes employers to a new category of lawsuits. Given the lack of bipartisanship, it may be a generation or two before this problem is addressed in the workplace. Until then, employees are forced to rely on private employers to self-govern themselves in the absence of serious legal exposure.

For more information on workplace bullying, these articles may be helpful:

  1. About.com
  2. Careers
  3. Legal Careers
  4. Career Trends
  5. Bullying Legislation - Bullying Laws - Anti-Bullying Legislation in the United States

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