Bullying in the Air?
by Michael Fox
I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?
Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.
I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.
(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)
Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.