What is the difference between workplace bullying and harassment?
Bullying and harassment often feature similar behaviors, such as offensive remarks or physical aggression. Workplace bullying is generally recognized as repeated, unreasonable and unwelcome behavior directed at a specific employee (or multiple employees) involving a power imbalance that results in psychological or physical harm.
Harassment, on the other hand, triggers legal protections. By definition, harassment involves a protected characteristic – such as gender, race, religion, sex, color, disability, age, genetic information or national origin – and is actionable under either federal law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act, and/or state law, which may include other categories (including sexual orientation and gender identity).
The legal protections under such laws do not cover all potentially harmful behavior. In the 1998 decision of Oncale v. Sundowner, the U.S. Supreme Court noted that Title VII, for example, is not “a general civility code” that prohibits “all verbal or physical harassment in the workplace.” Instead, such statutes are intended to protect the categories of individuals specified in the laws.
One typical illustration of a workplace bully involves the “equal opportunity jerk” who is generally rude and inappropriate to all of his or her subordinates for a variety of reasons that are not based on a protected category. A supervisor who bullies using gender-neutral language or behavior does not violate state or federal law; nor does a manager who singles out a particular employee because of a personality conflict or a disagreement about how the job should be performed.
Harsh criticism, threatening physical gestures and insults based on intelligence (calling employees “stupid” or “incompetent”) are textbook cases of workplace bullying that are not actionable under federal or state law.
In practical terms, that means that workplace bullying is legal, although efforts have been made to enact anti-bullying laws. The Workplace Bullying Institute drafted model legislation called The Healthy Workplace Bill, and a version of the bill has been introduced in 30 states and two territories. For example, Massachusetts lawmakers recently considered Senate Bill 1072, legislation that would have banned all “abusive conduct” against employees, even if it wasn’t based on a protected characteristic.
To date, no jurisdictions have enacted the measure.
While workplace bullying remains legal, it doesn’t mean that employers should turn a blind eye to such behavior, which has been documented to have a negative impact on the workforce. Employers can provide protections that the law does not, by establishing anti-bullying policies with guidance on how victims of bullying can report incidents and with applicable penalties for employees who violate the policy.