Under the Radar: Workplace Bullying in a Litigious Age
September 17, 2012 10:53 am
By: David Yamada
Decades ago, Title VII of the Civil Rights Act of 1964 declared that discrimination on the basis of race, color, religion, sex, or national origin is an unlawful employment practice. Before the enactment of Title VII, discriminatory employment practices were largely open and transparent. Because it was legal to exclude or classify workers and job applicants based on these categories, there was no need to hide it. Anti-discrimination law changed all that.
Overt workplace discrimination has declined considerably in the U.S. Both anti-discrimination laws and changing social attitudes have had a positive impact in that regard. However, many of those engaging in workplace discrimination have become more savvy about it, using less obvious practices that are harder to challenge, while refraining for uttering statements of bias that once were more common. In such circumstances, getting an employer to take a discrimination complaint seriously can be a more daunting task. The same goes for proving a discrimination claim filed with an agency or court of law.
What does this mean for workplace bullying?
Taking these trends into account, I’d like to offer a reluctant hypothesis: As workplace bullying continues to enter the mainstream of American employee relations, and as advocates for the workplace anti-bullying movement enjoy greater successes in public education, employer awareness, and law reform, bullying behaviors at work will become increasingly covert and indirect.
In other words, those who are inclined to engage in bullying will be aware of more enlightened public attitudes against such mistreatment. In time, they also will face greater liability exposure as the legal system responds more effectively. For some, these developments may discourage them from bullying. Others, however, will become more devious and more ingenious about how they mistreat their co-workers. These covert and indirect forms of bullying are harder to unpack than more transparent forms of work abuse.
The good news is that all of the positive developments concerning workplace bullying eventually should help to decrease the prevalence of bullying behaviors. The bad news is that those who bully others will be more likely to do so in ways that are difficult to sort out and address.
David Yamada is a Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston.