Workplace bullying is becoming a bigger problem than harassment. A recent survey found that workplace bullying is four times more likely than unlawful workplace harassment. Twenty-seven percent of U.S. workers report experiencing abusive conduct at work, and 21 percent report witnessing such conduct.

Bullying in the workplace is defined as actions by an individual or group that are unreasonable, inappropriate, typically repeated and cause an intentional impact on the target, such as humiliation, degradation, offense, intimidation, danger or a safety risk to the target. Bullying can be physical or psychological. Simply put, bullying is a form of violence.

Workplace bullying does not just affect the target. It affects others in the workplace, as well, and can cause reduced productivity, interfere with the free flow of communications within the organization and lead to higher turnover — all of which significantly increase an employer’s operating costs.

Although there are not yet any state or federal laws directly regulating workplace bullying, at least 26 states have considered adopting such laws in the past decade. With a growing awareness of this issue, employers can expect increased attention by lawmakers, government agencies and civil rights groups.

Even without specific legislation directly on point, workplace bullying can lead to all sorts of expensive legal claims, including assault, battery, defamation, false imprisonment, intentional infliction of emotional distress, negligent hiring, supervision and/or retention, interference with contractual relations, and related claims. Significantly, these common law causes of action usually do not have caps or limits on damages as do Title VII, the Age Discrimination in Employment Act, or similar federal and state anti-discrimination or anti-harassment statutes. The absence of statutory limits on damages makes bullying claims more attractive than claims under the more well-known anti-discrimination or anti-harassment statutes.

In addition to common law tort and statutory anti-discrimination or anti-harassment claims, workplace bullying can result in claims for disability pay or benefits, workers' compensation payments, medical leave or other types of benefits or compensation. It can even result in liability under OSHA's rules that impose on employers the general duty to maintain a safe work environment.

Employers who want to prevent workplace bullying and avoid, or at least minimize, any downstream exposure to legal claims and costs relating to workplace bullying should consider taking the following seven steps:

  1. Develop and enact workplace bullying and violence policies that define workplace violence and bullying behavior. But, make sure that any policies comply with applicable laws, including some of the recent pronouncements of the National Labor Relations Board relating to the rights of employees to engage in concerted activities for their mutual aid and protection.
  2. Publish a specific and well-defined step-by-step grievance or reporting procedure.
  3. Make sure that everyone understands, through written policies and training, that retaliation against those who may complain of bullying will not be tolerated.
  4. Leaders should create an environment that fosters openness and empathy so employees who report being harassed or bullied feel supported and comfortable enough to report any violations. In other words, leaders in the organization cannot just "talk the talk" and then take actions that undermine or are inconsistent with the written policies.
  5. Clearly communicate the consequences of violating the workplace bullying and violence policies. The language of the policy should specifically state that "violation of this policy can result in disciplinary action, up to and including immediate termination of employment, civil or criminal prosecution, denial of unemployment benefits or other actions that may be appropriate under the circumstances."
  6. Train supervisors and employees about the policy, consequences of violating it, the procedures for reporting claims and how reports will be immediately investigated and remedied, as appropriate under the circumstances. Make the training real for supervisors and employees by using interactive instructional methods such as case studies and concrete examples.
  7. Ensure adequate follow-up, evaluate employees and enforce policies and procedures. An effective workplace bullying policy will have little impact if there is no follow through. Employers must be willing to make hard decisions and stick to their policies and procedures when confronted with workplace bullying situations.

Over time, employers will need to refine and adapt their workplace bullying and violence policies and training programs, especially as this area becomes better defined through experience, litigation and new statutory developments.