Workplace bullying, or psychological harassment, is destructive behavior in the form of repeated unreasonable actions, verbal conduct, or gestures that are hostile and unwanted. Workplace bullying can affect an employee’s psychological health and make the work environment harmful. It can happen between co-workers or between persons in positions of authority against their subordinates. Workplace bullying often involves a misuse of the power that comes from having supervisory authority over someone. It is an ongoing pattern of behavior that creates a sense of assault on the dignity of the subordinate. Supervisors who have high standards and make tough demands on their subordinates are not necessarily being workplace bullies, as long as their demands are work-related and their motives are to obtain the best job performance of which the subordinate is capable. Criticizing an employee’s work product is not always the same as workplace bullying.

There is no law in Wisconsin or anywhere in the United States that prohibits workplace bullying. While there are both federal and state laws that prohibit harassment because of an employee’s membership in a protected class (race, color, sex, pregnancy, sexual orientation, gender identity, age, religion, ethnic or national origin, disability, creed, marital status, honorably discharged vet or military status), there is no legal claim for “harassment” that is not related to a protected status. Even if a supervisor’s expectations and behavior are unfair, personally motivated, and damaging, unless the motivation also includes animus because of the employee’s protected status, the employee does not have a legal claim against the employer arising from that behavior under current law.

Other than specific laws that protect employees (see I’ve Been Fired), the only remedy for any workplace injury is through worker’s compensation law. Under worker’s compensation law, the employee who has suffered psychological injury has to show that, objectively, a “person of ordinary sensibility [would] be emotionally injured or mentally distressed.”1 If similarly situated employees are also subject to the same kinds of daily stresses and strains without suffering psychological injury, the psychological injury is not compensable under worker’s compensation law. The employee must show that unusual circumstances, not normally encountered in that employee’s kind of work, caused the injury.

While a number of states, including Wisconsin, have considered legislation that would create a cause of action for workplace bullying, no state has adopted such legislation. A law that would prohibit abusive work environments was introduced in the Wisconsin legislature in both the 2009 – 2010 and the 2011 – 2012 legislative sessions, and was voted down both times, most recently in March of 2012. Under this legislation, “abusive work environment” would have been defined as “a work environment in which an employee is subjected to abusive conduct that is so severe that it causes tangible harm, i.e., material impairment of physical or mental health or bodily integrity, to the employee.” 2011 Assembly Bill 364. This law would have been similar to laws on the books in several other countries, including Canada.

As indicated by the number of states that have considered workplace bullying laws, there is a healthy movement afoot to require employers to ensure that bullying is not tolerated. Zero tolerance employment policies should be part of an employer’s broad goal to maintain a safe, healthy, and productive work environment. If you or someone you know has questions about what can be done about an abusive work environment, contact Hawks Quindel, S.C. to schedule an appointment with an attorney.

1 Jensen v. Employers Mutual Casualty Company, 161 Wis. 2d 253, 268 (1991).

Summer Murshid

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