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One of the major problems facing employers with the prospect of legislation outlawing workplace bullying is the term bullying is so ill-defined, say observers.
Something as relatively innocuous as a momentarily lost temper could be labeled bullying, they say.
“How do you adjudicate those issues?” asked Eric A. Tate, a partner with law firm Morrison & Foerster L.L.P. in San Francisco. “The range of conduct that could be unlawful just becomes infinite.”
“Nobody's perfect,” he said. “Do you really want to be the subject of being sued if you lose your temper? If you're on a deadline and somebody screws up royally, how do you discipline people?” said Mr. Tate.
Legislation that was passed by the New York Senate last month, but not voted on by the House, defined abusive conduct as conduct “that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant's conduct.” It says also: “A single act normally will not constitute, abusive conduct, but an especially severe and egregious act may meet this standard.” But critics say the entire concept of bullying is subject to individual interpretation.
The movement toward anti-bullying legislation “is now attempting to promote legally required civility in the workplace, which has never been the law, so it will be interesting to see and watch where this goes,” said Mary M. Krakow, a partner with Minneapolis-based law firm Fredrikson & Byron P.A.
“The U.S. Supreme Court and all the other courts following its lead have always said Title VII (of the Civil Rights Act of 1964) wasn't meant to be a workplace civility code, that there was a certain amount of...incivility that goes along with being just human and that we're all meant to endure,” said Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland.
However, David C. Yamada, a law professor at Suffolk University Law School in Boston, said his model anti-bullying law, which has been the basis of most of the proposed legislation that has been introduced, including New York's, is intended to make it difficult for workers to successfully claim they have been bullied.
“Someone would have to establish that the abusive conduct is both malicious in its intent and tangibly harmful to their health, so this goes well beyond everyday dust-ups in the workplace or disagreements,” Mr. Yamada said.
“My hope is the main value of this statute will be preventative, that it will send a message out to employers that, by engaging in training and preventative practices, they can severely reduce any liability exposure under its statute,” Mr. Yamada said.