Workplace bullying legislation repeatedly defeated

The NFL's Richie Incognito was accused to bullying a teammate. Photo: AP. The NFL's Richie Incognito was accused to bullying a teammate. Photo: AP.

Public awareness of workplace bullying has never been higher, thanks to high-profile cases such as the one involving Miami Dolphins teammates Richie Incognito and Jonathan Martin. Yet none of the more than two dozen states that have taken up the issue has actually passed any legislation to tackle the problem.

A recent survey found that 93 percent of Americans support legislation that would offer protections against bullying at work. The survey, conducted by Zogby Analytics for the Workplace Bullying Institute, found that 27 percent of Americans report having experienced abusive conduct at work. Another 21 percent say they have witnessed such behavior. Overall, 72 percent of those surveyed said they were aware of the issue of workplace bullying.

“Everybody has a story,” said Gary Namie, co-founder and director of the Workplace Bullying Institute. “It is an epidemic. When you count witnesses, 65 million people in the workforce know firsthand what (bullying) is about.”

The Incognito-Martin case brought workplace bullying into the spotlight.

Martin accused Incognito of bullying him, and then left the team. A lawyer hired by the National Football League to investigate the matter recently released a report concluding that Incognito “engaged in a pattern of harassment'' of Martin. 

Namie and his Bellingham, Wash.-based institute have been working on the issue for more than 20 years, but he said that the Incognito-Martin case caused “a tectonic shift.”

“It says a lot about our culture that it took a case in the NFL to have this impact,” he said. “The NFL case normalized it for many people. It freed people up to say, ‘I have been bullied, if this 300-pound giant of a man can also be bullied.’ (It was) as if being bullied is a sign of weakness, which it is not. But (the publicity now) takes the sting away.”

If the numbers are right, there’s a lot of bullying going on at the office, and a good deal of it is at the hands of supervisors.

According to a 2012 survey of 3,892 workers by CareerBuilder, 35 percent of workers said they were bullied at work, compared with 27 percent the previous year. Among workers who said they were bullied, 48 percent said it involved incidents with their bosses, while 26 percent said it involved someone higher up in the company than their bosses.

Perhaps most problematically, of the 27 percent of workers who reported the bullying to their HR departments, 57 percent said nothing was done.

The cost of bullying can be high.

In what has been described as the largest single judgment for a single victim of workplace harassment in U.S. history, a jury in 2012 awarded $168 million to Ani Chopourian, a physician assistant who claimed she was bullied by a surgeon at Mercy General Hospital in Sacramento, Calif.

Legal claims filed against employers by victims of bullying generally cited harassment focusing on the victim’s race, disability, religion or sexual orientation.

Namie, who was a consultant to the NFL on the Incognito-Martin case, said the story, which shocked many with its details of repeated abuse, underscores the need for legislation on workplace bullying. But the prospects for such legislation remain mixed at best. Despite the strong support for legislation reflected in the recent survey, laws at the state level have repeatedly stalled.

Lawmakers in 25 states have introduced some variation of the Healthy Workplace Bill, legislation written by Suffolk University professor David Yamada and endorsed by Namie’s group. The legislation would provide definitions of bullying behavior, require proof of harm by a professional health provider, and allow a bullying employee to be sued as an individual. The law provides protections for employers who act in good faith to put in place policies on bullying.

However, business and management groups remain wary of legislative solutions. They argue that such laws will become efforts to “legislate civility” and could trigger a flood of lawsuits. 

Susan Corcoran, an attorney with Jackson Lewis in White Plains, N.Y., and co-chair of government affairs for New York’s chapter of the Society for Human Resource Management, said employers believe there are better ways to deal with workplace bullying.

Corcoran said her state SHRM decided not to support the Healthy Workplace Bill when it came before the New York State Assembly in 2013 because the group feels employers are already putting anti-bullying policies in place.

“As HR professionals, we feel very strongly about the different types of proactive steps we take in the workplace to ensure it’s a positive one, and hopefully, a bully-free workplace,” she said. “We did oppose the (New York) legislation, because we didn’t want another piece of legislation imposed on our employers.”

Namie blames the lack of legislative action on the lobbying muscle of groups like the U.S. Chamber of Commerce. “The business lobby is powerful,” he said. “We’ve had a decade of dealing with politicians, and I must say the courageous ones are in short supply.”

He also dismissed the self-policing approach that SHRM endorses. According to Namie, only about 6 percent of employers have created an effective anti-bullying policy. “What happens is, they will add a sentence or two, or they’ll throw the word ‘bullying’ in, but they have no intention of holding an executive or manager accountable. It undermines the entire effort,” he said.

His group’s latest survey also finds shortcomings in employers’ efforts to manage the problem: it shows that only 28 percent of employers take meaningful steps to address workplace bullying when it takes place. “It is clear that in 2014, despite significant public awareness at 72 percent, employers are doing very little voluntarily to address bullying,” the report says.

Kevin Dahle, a Minnesota state senator who recently introduced a workplace bullying bill, has watched a similar debate unfold in his state.

There, lawmakers have been arguing about a school bullying bill for five years, with no resolution. “(Opponents) don’t like the definitions, they feel like it’s too much paperwork, there are gray areas — a simple, sarcastic joke in the office might be construed as bullying,” he said.

Dahle’s bill is more limited than some: it only applies to public workers in state agencies, and it requires management and labor to sit down and agree on definitions and policies.

Photo: NFL player Richie Incognito.

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