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January, 2023

Workplace Investigations: What Is “Bullying”?

There is a slippery slope between what may be considered sub-optimal or bad management practices, “bullying,” and “harassment.”  When behaviors prompt an employee complaint, workplace investigators need to evaluate where a supervisor’s conduct falls on the spectrum.  That analysis largely turns on an assessment of the target and nature of the behaviors, centered on the organization’s workplace policies.

Distinguishing Bullying from Harassment

As a workplace trainer, I regularly advise that the only distinction between bullying and harassment is that harassment is based on a protected characteristic, while bullying is not.  Actions like physical contact, threatening or insulting comments or gestures, and exclusion or isolation may prompt complaints of bullying, and they are equally likely to result in complaints of harassment.  The behaviors are the same, but the target differs.

An investigator presented with those types of reported behaviors first needs to determine whether they actually occurred.  If it seems more likely than not that they did occur, then the issue becomes one of determining whether an individual has been singled out for that treatment based on a protected characteristic, or whether the respondent engaged in those behaviors based on personal dislike of the complainant or indiscriminately toward a range of individuals with differing characteristics.  In other words, is this individual a so-called “equal opportunity jerk?”  That determination is not as simple as it may seem.

Considering the Target

Non-sexual behaviors, such as yelling at an employee, throwing papers at her and reassigning her to a different work group may be considered sexual harassment if they are targeting an employee because she is a woman.  The investigator needs to consider why the behaviors occurred, whether others have experienced similar behaviors from the respondent, and whether those others possess the same or different characteristics from the complainant.

Even if an investigator finds that a supervisor yells and makes demeaning comments to individuals across the gender spectrum, however, that may not be determinative on the question of whether the conduct is harassment or bullying.  Recently, for example, I met with a complainant who conceded that a manager was harsh and very critical of both the men and women on the team but asserted that the level of hostility was more pronounced toward women, and that only the women were belittled in a public setting.  As an investigator, therefore, it was not only the perpetuation of hostile behaviors targeting individuals across the gender spectrum, but also the severity of those behaviors as directed at different groups, that I needed to consider.

Anti-Bullying Policy Language Can Obviate the Distinction

Organizations can avoid this level of hair-splitting by adopting broader policies related to appropriate workplace conduct.  Policies that require employees to treat each other with respect and dignity or to maintain a respectful work environment, as well as those that prohibit both harassment and bullying, capture these types of offensive behaviors regardless of who is being targeted or for what reason.  Under such policies, the investigator can just focus on the behaviors themselves and, if they are found to occur, the organization has grounds to take responsive disciplinary and remedial action.  Whether the behaviors also give rise to a legal claim of harassment then becomes a question for litigators to resolve, and only if the matter proceeds to litigation.

Narrowly-defined policies can place organizations in a defensive posture.  Organizations that identify and resolve issues in a manner that sufficiently satisfies the complainant may be able to avoid subsequent legal action.  Organizations that decline to act unless offensive behaviors are found to be based on a protected characteristic are more likely to have a dissatisfied complainant who will pursue legal remedies to address the behaviors.

Bullying or Bad Management?

Investigators may also need to analyze behaviors at the other end of the spectrum, to determine whether a supervisor has engaged in poor management, or whether the supervisor’s approach crosses the line into bullying behavior.  In this context, the starting point needs to be the organization’s policies, and how they define bullying behavior.  Some organizations have detailed policies that provide a definition of bullying with specific examples, and those provisions should guide an investigator’s determination as to whether behaviors violate the policy.

Many organizations have less explicit policies against bullying, or none at all.  The challenge in those situations is that not every harsh or critical communication by a manager qualifies as “bullying.”  The nature of the behavior, whether it is targeted, and the reason for the behavior are often critical to determining whether a supervisor has crossed the line between appropriate feedback or discipline for an employee’s violation of workplace conduct standards, and inappropriate behavior.

Receiving critical feedback usually does not make an employee feel good and may cause discomfort or upset.  Some managers also deliver that type of message more delicately than others.  In general, we consider critical feedback to be appropriate manager behavior and not bullying because it is motivated by legitimate business considerations.

At times, though, even if critical feedback is warranted, the manner in which it is delivered may be inappropriate.  The distinction is reflected in existing legal definitions of “abusive conduct,” which require a certain degree of malevolence or hostility before workplace behaviors will be considered to be bullying.  Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.”  California, which requires harassment prevention training to expressly address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  Both states provide examples that include:

  • repeated verbal abuse such as derogatory remarks, insults and epithets;
  • threatening, intimidating, or humiliating verbal or physical conduct; or
  • gratuitously undermining or sabotaging a person’s work performance.

While employers can always define bullying under their own policies more broadly than the state laws, when the policies lack a clear definition, these laws provide a helpful framework for investigators delineating between bullying and bad management.

Policies as Guideposts

As with the distinction between harassment and bullying, organizations that adopt broad policies related to workplace conduct can make clear to employees and supervisors – in advance – how the organization defines the boundaries of permissible workplace behavior.  Policies that address bullying with a definition and examples of the types of behaviors considered to be inappropriate provide helpful guideposts as to the organization’s expectations and the norms for appropriate conduct.  Those guideposts can also inform workplace investigators’ determinations of when behaviors have crossed the line between bad management and bullying.  Without guideposts, it’s a slippery slope.

By Tracey I. Levy

 

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