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Unfortunately, it's not illegal to be just a jerk and a bully

In the workplace, under Title VII, workplaces of over 15 employees can't hate/discriminate on the basis of race, sex, national origin, or religion; under the ADA workplaces of over 15 employees can't hate/discriminate on the basis of disability; and under the ADEA workplaces of over 20 employees can't hate/discriminate on the basis of age. Sexual orientation is not covered,

But otherwise, you can hate/discriminate for any other reason. Just hating a person for living isn't covered. Sexual harassment is discrimination on the basis of sex, but any other kind of harassment--merely being a bully, is not illegal. In fact, such abrasive behavior is often characteristic of the management class, and is the stuff of so many movies.

Anyway, interesting arguments to outlaw workplace bullying:

An eye roll, a glare, a dismissive snort ? these are the tactics of the workplace bully. They don?t sound like much, but that?s why they are so insidious. How do you complain to human resources that your boss is picking on you? Who cares that a co-worker won?t return your phone calls?

Unlike the playground bully, who often resorts to physical threats, the work bully sets out on a course of constant but subtle harassment. It may start with a belittling comment at a staff meeting. Later it becomes gossip to co-workers and forgetting to invite someone to an important work event. If the bully is a supervisor, victims may be stripped of critical duties, then accused of not doing their job, says Gary Namie, founder of the Workplace Bullying Institute, an advocacy group based in Bellingham, Wash.

This month, researchers at the University of Manitoba reported that the emotional toll of workplace bullying is more severe than that of sexual harassment. And in today?s corporate culture, supervisors may condone bullying as part of a tough management style.

But the tide may be turning, thanks in part to a best-selling book by Robert I. Sutton, a management professor and co-director of the Center for Work, Technology and Organization at Stanford. Among other things, the book argues that workplace bullies are bad for business, because they lead to absenteeism and turnover.

The New York State Legislature is considering an antibullying bill, and in several other states, including New Jersey and Connecticut, lawmakers have introduced such measures ? without success so far.

Business groups often argue that existing laws are adequate to protect workers. But bullying generally does not involve race, age or sex, which have protected status in the courts. Instead, most workplace hostility occurs just because someone doesn?t like someone else.

?Many of these situations fall between the cracks of existing state and federal employment law,? said David C. Yamada, a professor at the Suffolk University Law School in Boston, who has drafted antibullying legislation. ?There is a real gap in the law that someone could be tormented and subjected to humiliation and really be suffering because of it, but the courts are saying it?s not severe enough for us to allow the lawsuit to go forward.?

The antibullying bills are often referred to as ?healthy workplace? legislation. The name is more palatable to businesses, but they also acknowledge the serious health toll bullying can have. Some victims become physically ill from the stress, with depression, anxiety and even symptoms of post-traumatic stress disorder. Surveys also suggest that victims of office bullies call in sick more often ? although it?s not clear whether they really are sick or just avoiding the abusive environment at work.

A large share of the problem involves women victimizing women. The Zogby survey showed that 40 percent of workplace bullies are women.

?She gave this employee totally inappropriate assignments, setting him up to fail, and then punished him when he could not complete the assignments,? said the reader, who asked not to be named. ?She eventually did not invite this employee to the Christmas party.? The worker finally quit.

Still, it can be hard to distinguish between normal personality disputes and the incessant torture of workplace bullying.

Some of the behaviors ? glaring, failing to return calls, not praising a worker ? may seem trivial, but they take a toll when repeated over and over again.

?It can be damaging to be constantly dismissed in front of your peers,? Dr. Neuman said. ?The thing that is upsetting about it is that people come to expect it and say, ?Well, this is what it?s like around here.? It shouldn?t be part of the culture, but often it is.?

This is all very interesting. I am exceedingly pessimistic about attempts to reform the workplace, even though this is my life's work. But if these bills are successful, that will do a lot to restructure the narrative of workplace interaction. While legal mandates are hardly ever enough to change workplace culture, they do change rights consciousness. And organizations will adapt to at least give the appearance of compliance, and that is not always a hollow, empty gesture.

If this works, this will be great--Title VII is very limited, and does not even cover discrimination on the basis of sexual orientation or appearance. While I am not a flaming liberal such that I want all social interactions policed for civility and PC politeness (to do so would be to dilute claims of real discrimination on the basis of the protected categories), I do think that workplace bullying is a serious problem. Whether I think that we should regulate eye-rolls and glares is quite another. Also, I worry about the disaggregation of asshole behavior from discriminatory behavior. While there's some irrational animus out there ("I hate you for breathing"), I am also uncertain how much of this very subtle discrimination can be teased apart from gender/race/sexual orientation/religious/national origin discrimination. Sometimes, there are equal opportunity jerks. Other times, I'm not so sure that their hate is as indiscriminate as it appears.

Full post as published by Law and Letters on March 25, 2008 (boomark / email).