Workplace Bullying Is Always Harmful and Wrong. But Sometimes, It Is Also Against The Law.

By Menaka Fernando

Whether it happens to a child on a playground or an adult in the workplace, bullying is always harmful, always wrong, and never acceptable. Taunts, teasing, threats, or intimidation are all examples of abusive behavior that can constitute bullying. Sadly, more and more American workers are subjected to workplace bullying by superiors, colleagues, and others. A 2021 survey by the Workplace Bullying Institute found that 30% of American adults reported being bullied at work (including remote work), while an additional 19% observed bullying in their workplace. That translates into 76.3 million American workers directly impacted by workplace bullying.

Many people are surprised to learn that as abhorrent as such conduct is, and no matter how much it warrants consequences for those who engage in bullying, it isn't necessarily illegal. You won't find any federal law that directly addresses or prohibits bullying. But when the target of workplace bullying is a member of a class protected by federal or state anti-discrimination laws, it can rise to the level of prohibited harassment and provide victims with legal rights and remedies, including the right to recover compensation.

What Is the Definition of Workplace Bullying?

As noted, there is no federal law against workplace "bullying," which means there is also no legal definition of the term. But the WBI defines workplace bullying as:

  • Repeated, health-harming mistreatment of an employee by one or more co-workers.
  • Abusive conduct in the form of verbal abuse.
  • Behaviors perceived as threatening, humiliating, or intimidating.
  • Work sabotage.
  • A combination of the above behaviors.

Historically, bullying was a face-to-face and verbal phenomenon, with hurtful comments, cruel jokes, or intimidating threats made directly to and in the victim's presence. Today, however, bullying has moved online and into inboxes, chats, and other electronic spaces. Bullying in an abusive email, Slack message, or videoconference is just as harmful and wrong as it is in person.

When Does Bullying Become Prohibited Harassment?

While workplace bullying may not be illegal, per se, workplace harassment definitely can be. Harassment is considered a form of employment discrimination prohibited under several federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA). Most states also have laws that prohibit harassment in the workplace.

Harassment is generally defined as "unwelcome conduct" towards a person based on their race, religion, color, sex (including sexual orientation, gender identity, or pregnancy), national origin, age (beginning at age 40), or disability. Anti-discrimination laws also prohibit harassment of workers in retaliation for reporting misconduct, or opposing employment practices they reasonably believe are discriminatory.

Harassment becomes unlawful where:

  • Enduring the offensive behavior becomes a condition of continued employment.

or

  • The conduct is severe or pervasive enough to create a hostile work environment

Bullying crosses the line into prohibited harassment when the target is a member of one of the above-mentioned protected classes, and the abusive conduct is based on that status. For example if a supervisor yells at and threatens women for minor mistakes but allows men a free pass for similar or worse conduct, this differential treatment could amount to unlawful gender-based harassment.

If the bullying is so severe or pervasive as to make it difficult for the target to do their job, or if supervisors participate in or turn a blind eye to such misconduct, that can constitute a hostile work environment sufficient to support a discrimination claim under federal law.

State Anti-Bullying Laws

Most state anti-discrimination laws mirror federal law, though many provide more expansive protections and remedies. But no state laws currently make workplace bullying illegal or actionable outside the context of prohibited harassment.

However, many states have adopted laws designed to reduce bullying behavior in the workplace. For example, California requires workplaces with 50 or more employees to conduct training and education regarding abusive workplace conduct as part of mandated harassment prevention training. Moreover, if the bullying behavior escalates to violence or threats of violence, there may be additional legal (both civil and criminal) protections available under federal and state law.

It can be challenging for victims of workplace bullying to know how to respond to such misconduct– or whether to respond at all. Not wanting to rock the boat, antagonize a superior, or lose their jobs can prevent employees from taking appropriate actions to stand up for themselves. But if nothing is done, nothing will change.

If you have suffered at the hands of a workplace bully, you should discuss your concerns and experiences with an experienced employment lawyer who can evaluate your situation, determine whether you have a viable discrimination claim, and advise you of your options.