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Bulletin Winter 2016

Employment LAw Bullying is different from aggression. Whereas aggression may involve a single act, bullying involves repeated attacks against the target, creating an on-going pattern of behavior. “Tough” or “demanding” bosses are not necessarily bullies as long as they are respectful and fair and their primary motivation is to obtain the best performance by setting high, yet reasonable, expectations for working safely. Workplace bullying can be instigated by coworkers, supervisors, contract workers or labor representatives.3 The Workplace Bullying Institute, www.workplacebullying.org, a rich resource on this topic, defines workplace bullying as follows: Workplace bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is: • Threatening, humiliating, or intimidating, or • Work interference –sabotage – which prevents work from getting done, or • Verbal abuse4 What causes this type of behavior? Many believe that with the advent of Facebook, Twitter and other online forums where one can vent or attack anonymously or without consequence, combined with tighter deadlines, longer hours and other workplace pressures, that “ambition or impatience can turn reasonable people nasty.”5 Further, fear does not usually bring out the best in bosses or subordinates and if you are “holding on to your job by your fingertips – it takes depth of character and personal resilience not to take out your anxiety on those around - or, in hierarchical terms, under - you.”6 Further, bullying should not be confused with sexual or racial or other recognized prohibited harassment, although the behaviors can overlap. The latter is pervasive or severe ill treatment of someone based on their sex, race or other protected categories defined by Title VII of the Civil Rights Act, The Americans with Disabilities Amendments Act or the Age Discrimination in Employment Act. Interestingly, the targets of bullying are usually not the “weakest” players, but often the strongest. In the workplace, the targets of bullying tend to have the highest emotional quotient, people tend to like them better, they mentor others and are some of the most proficient employees. “The bully tends to be someone who is skilled at manipulating and controlling, but while they see everything as a competition, they do not feel skilled/ competent enough to compete on their own merits. These employees bully as a futile attempt to feel more powerful.”7 Bullying can take many forms including: • Repeated exclusion of the target from workplace gatherings during or after work; • Repeatedly criticizing or embarrassing the target in front of others; • Attempting to turn other employees against the target; • Repeated abusive and/or loud angry feedback; • Excessive monitoring or micro-managing of the target; • Giving repeated unrealistic deadlines and/or destroying needed work materials making work completion impossible. • Importantly, bullying is not defined as: • Disciplinary procedures in accordance with adopted policies of The Company • Routine coaching and counseling, including feedback about and correction of work performance • Reasonable work assignments, including shift, post, and overtime assignments • Individual differences in style of personal expression • Passionate, loud expression with no intent to harm others • Differences of opinion on work-related concerns • The non-abusive exercise of managerial prerogative II. Current Legislation In 2014, the Tennessee legislature passed The Health Workplace Bill and was the first state to enact such legislation, although 28 states have attempted to introduce similar legislation.8 The legislation required the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) to create a model policy for local governments to prevent abusive conduct in the workplace.9 “The model policy shall: (1) Assist employers in recognizing and responding to abusive conduct in the workplace; (2) Prevent retaliation against any employee who has reported abusive conduct in the workplace.” The Tennessee law states that “if a local governmental entity adopts a policy that prohibits abusive conduct in the workplace, then the local government entity will be immune from suit for any employee’s conduct that results in negligent or intentional infliction of mental anguish. This amendment must not be construed to limit the personal liability Birmingham Bar Bulletin/ Winter 2016 15


Bulletin Winter 2016
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