The major difference is that no law at present prohibits workplace bullying - despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being. And most other industrialized countries have enacted laws or regulations that address workplace bullying.
However, bullying can become illegal when it creates a hostile or abusive work environment in violation of federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.
Generally, two factors must exist:
The harassing conduct must create a “hostile work environment.”
- The harassing conduct must be directed toward a characteristic that is protected under federal and state civil rights laws. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.
What is a hostile work environment? The U.S. Supreme Court says a hostile work environment is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment. Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993). The Court has repeatedly said that Title VII does not prohibit simple teasing or a merely offensive utterance.
NOTE: A target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.
To sum up, there may be no substantive difference between the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment. The harassing conduct can be identical, with the exact same devestating result.
The significant difference between serious workplace bullying and illegal harassment is a legal distinction pertaining to the characteristics of the target of the conduct.
Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for all targets of a hostile or abusive workplace, whether or not they fall within a category that is now protected under the law.
As Shakespeare once observed: “If you prick us, do we not bleed.”
Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws. All targets of workplace bullying are encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.