Should workplace bullying be a criminal offense in the U.S.?

A recurring question within the workplace anti-bullying movement in the U.S. is whether workplace bullying should be a criminal offense. This discussion has been fueled by recent legal developments in Australia, where the state of Victoria has criminalized workplace bullying, as well as ongoing awareness that under French law, “moral harassment” can be a criminal offense.

I cannot speak with sufficient authority about whether the legal systems in other nations are capable of handling criminal claims for workplace bullying, but I do believe that making standard-brand workplace bullying a criminal offense in the U.S. would create significant challenges for targets seeking justice and seriously disrupt our workplaces.

This position is informed not only by a decade of research, advocacy, and public education about workplace bullying as a law professor, but also by my experiences as a former assistant attorney general for New York State enforcing workplace safety laws and as a former public defender arguing criminal appeals on behalf of indigent defendants in New York City.

Here are some of my specific concerns:

Overworked police and prosecutors offices

The idea that already overburdened police departments and prosecutors offices would be able to investigate a rush of complaints from workers claiming they were bullied is wholly unrealistic. The criminal justice system cannot handle what’s currently on its plate.

In addition, we shouldn’t expect police departments, labor departments, and prosecutors offices to create special units to handle workplace bullying complaints. At best, state or federal labor departments might be able to prosecute a small number of easy-to-prove, high visibility cases. Anyone who expects more should read up on the status of city, state, and federal law enforcement budgets.

No private cause of action

Those who favor criminal sanctions for workplace bullying should be aware that if law enforcement authorities don’t want to go forward with a prosecution, there is no further action on a case. If workplace bullying is made a criminal offense, those whose complaints do not lead to a prosecution will have no further recourse; one cannot pursue a criminal case solely as a private citizen.

No damages to the target, no punishment of organizations

In most cases, the criminal justice system does not provide compensation to victims; that’s what the civil justice system is designed to do. Therefore, even a successful prosecution of an individual bully will not provide damages to the target. (And try collecting from someone who is imprisoned, in any event!)

Also, because individuals, not institutions, are the subject of criminal prosecutions (as opposed to, say, employment claims that can be brought against employers), there will be no organizational accountability for bullying situations enabled by abusive or dysfunctional work environments.

Impact on workers and workplaces

This is a definitely an example of beware, you may get what you seek.

First, workers already are reluctant to file claims against their employers when they have valid claims recognized by the law. How many would be willing to press criminal charges by calling the police or some other government entity?

Second, how would the presence of police or criminal investigators showing up at an office in response to a complaint about bullying at work further fracture already damaged employment relationships? And would there be any disincentive for an underperforming, unhappy worker to “drop a dime” on a supervisor he doesn’t like?

Burden of proof

Some have criticized the Healthy Workplace Bill for creating too high a legal threshold for making a successful claim at trial, especially the requirements that targets prove the behaviors (1) were intended to harm them and (2) caused tangible mental or physical harm.

Well, that’s nothing compared to proving a criminal claim for workplace bullying, where the burden of proof is beyond a reasonable doubt. Think the Casey Anthony acquittal. Think the O.J. Simpson acquittal.

It bears mentioning that the federal Occupational Safety and Health Act does provide for short terms of imprisonment for willful violations of workplace safety codes that cause a worker’s death. However, despite many worker fatalities due to unsafe working conditions, this is one of the very least invoked provisions of the law. Criminal prosecutions under OSHA are a rarity.

Existing criminal law

Extreme cases of workplace bullying, especially those that involve physical harm, already may be violative of existing criminal laws for assault, battery, or false imprisonment. Various criminal wiretapping and surveillance laws may cover bullying that uses advanced technologies.

***

In sum, criminalizing workplace bullying in the U.S. sounds a lot better in theory than it would play out in reality.  Some targets, understandably angry about being subjected to this terrible form of abuse, imagine with great satisfaction their tormenters being hauled off to prison. However, in most cases of workplace bullying, this would be extremely unlikely to occur.

18 responses

  1. Criminalizing sounds good, but we don’t do that good of a job with criminal prosecutions in other areas right now. Holding the companies accountable as we do with sexual harrassment would be more effective — although not perfect.

  2. Are there any Ombudsmen that represent victims of bullying and harassment in the workplace world? No one that would be biased toward the business or management of the organization?

    • Some organizations have ombudspersons, but it sounds like you’re looking for a mediator, some of whom may be familiar with bullying-type conflicts.

  3. From the target’s perspective, involvement in a criminal prosecution seems more likely to increase stress and delay healing than to achieve “justice”. And fear of prosecution might well increase the likelihood that employers will delay, deny, and obfuscate when instances of workplace bullying arise. Not my idea of a way to better workplace behaviour.

  4. The next generation will turn things around. Right now there isn’t time for these issues our government cannot even take care of what is on there plate right now. They are fully aware that this is a problem, the list is long, I do not think workplace bullying is on the list for now.

  5. Yes, I believe any level of bullying should result in the bully having every hair of their body ripped out, one by one, and very sloooooowly, clamps be applied to nipples, and a moderate voltage of electricity applied to the pads of their feet for a intermitent periods of at least two hours daily.
    Incarceration within a maximum facility pen with lethal gang members would be a nice added touch.

    Thank you again for a lovely, thought provoking BLOG Mr. Y.

    Sincerely,
    Ms. WI

      • I shall have to scour your archives,
        Mr.Y.
        Thank you very much for the suggestion.
        Barely am able to get around a computer but will make a point to
        find the post.
        Regards.

  6. The scourge on the American workplace is the outmoded outdated and insidious “At Will” employment doctrine. In my opinion it’s this cancerous employment model that fosters negative workplace symptoms such as bullying.

    This statement and question, “First, workers already are reluctant to file claims against their employers when they have valid claims recognized by the law. How many would be willing to press criminal charges by calling the police or some other government entity?” is indicative of the atmosphere of intimidation and sense of helplessness many employees feel because of employment At Will.

    In the criminal justice system there is a charge of conspiracy. However, to my knowledge there is no equivalent civil employment penalty. HR’s routinely “conspire” with managers, owners, customers, co-workers, vendors and legal departments to violate the rights of career seekers and employees. I call it “workplace conspiracy”. It’s a point well taken about the unique problems that would be created in seeking to implement criminalizing workplace bullying.

    Since in my view bullying is just one of many manifestations of “workplace conspiracy” maybe exploring this concept would open the door for being able to go after the institutions themselves. Since almost every department and management level can be involved in the “workplace conspiracy”.

    For example, Suzy J. is hired and six months later is sexually harassed by her manager. She complains to HR. The HR director is best friends with the harassing manager. These two “discuss” the situation with another department manager. Suzy J. gets transferred to the other department and is then exposed to known bullying behavior by a co-worker.

    She is also given a negative 360 feedback performance appraisal. Since the raters (one of which is the former manager) are anonymous she has no clue who rated her poorly. The outcome of this scenario is predictable, especially since Suzy J. has little or no knowledge of her Basic Employee Rights.

    I don’t believe there can ever be any consistent remedy for workplace bullying and other forms of discrimination and harassment as long as the quagmire of “At Will” remains in place.

  7. Dear David, I am humbled before your impeccable credentials. It is this scope of knowledge & experience that has truly qualified you to be a person, in whose hands, the future hopes for justice is shared and an end to the workplace savagery that is causing the industrial landscape to become nothing more than a killing field. My passion might be borne of vengeance, I hope I am not all about vengeance, that would disappoint and sadden me. I know my passion is not rooted in vindictiveness but in the terrible sense that the legal system and judiciary in this country (Australia) IS based on a class system and history affirms this, again and again. The sons/daughters of the powerful & wealthy might escape a conviction because it would terminate their ambitions to travel and or study abroad. Yet, whatever negatives might evolve from the imprisonment of an ‘unimportant person’ is of little consequence to the judiciary, who, most often, vehemently seek their ‘pound of flesh’ for violators of our laws. Violators of laws, of human rights, responsibilities & decencies should be brought to justice and should be convicted alike, if a case is proven against them.
    I spent 25 years working among the privileged & powerful and, to my discredit, became blind and numb to their cruelty, but worst of all, I became a tool used to negate and/or neutralise the complaints of the abused. You turn off or you leave and I couldn’t afford to leave, so I turned off. Such blind loyalty has its price and when the cruelty became too inhuman, I began to bear the pressure of the pain caused to victims. One victim in particular, who was targeted vehemently and incessantly and it was my efforts to expose the cruel culture, rife in the organisation, that ran me foul of my employers. At that time I actually became a target of a cruel, carefully orchestrated campaign of psychological and emotional torture. A long standing employee, servant of the club, privy to the evil ways of the inner sanctum was now an enemy among them. Sounds dramatic – it was and the harder I tried to cope and survive their abuse the more intense and cruel it became.

    When I crashed, it was big time and I believe that the life altering injury I have suffered is perhaps my punishment for not having the fortitude to come forward when I first encountered the depth of corruption in my first years at that awful place, where I would spent up to 12-14 hours a day.
    What is left I have salvaged from my broken life and I cannot rest until the lives, and deaths, of two dear young people, have been vindicated and validated. No one deserves to have their lives made so utterly unbearable that they believe they no longer have a right to be among us. That terrible sense of not being worthy of walking this earth, that overwhelms them because that is what their abusers have brainwashed them to believe. That they have, somehow lost their right to self esteem and any hope of happiness .

    I cannot believe, perhaps through ignorance, that there is any punishment that would be enough to discourage such well established abusers, short of criminal charges. Even the threat of serious criminal charges being laid could be a significant deterrent. As for people making frivolous claims, proper filtering processes would counter this problem and I certainly cannot agree that a person might regard one incident, or even concoct an incident report against someone they do not like. I think we must be credited with more common sense than that. I believe that criminalization is the most appropriate course and I further believe that it is up to the experts to come up with the finer points relating to administration and execution of such laws. Let us not abandon a concept because it will be difficult or complex. Let’s work it out, let’s make it happen. In spite of my many jokes to the contrary, I do not expect to see our jails full of CEO’s, executives, managers, foremen, but I do need to know that they have been counselled and that their misconduct has been recorded and becomes a matter of public record. Victims, particularly those who have sought relief through the justice system must adapt to the stigma that follows them like a foul odour. I do not expect anything less for the perpetrators/abusers.

    Dianne Wilkinson

    • Dianne, I am sorry to hear more of your own terrible experiences, and thank you for your very thoughtful points. Here and via the many comments you’ve shared on Facebook, you continue to offer painful, honest testimony as to the destructive impacts of this form of abuse.

      I hasten to reiterate that my assessment is based on the capability of the American criminal justice system to handle cases alleging workplace bullying, and I won’t belabor you with more on that point. While your exhortations of “let’s work it out, let’s make it happen” are well taken, I must invest my energies in something that is within the realm of possibility in my lifetime, which is making workplace bullying an unlawful employment practice in the U.S., hopefully via the Healthy Workplace Bill. I believe that day is coming, perhaps sooner than later. But as you may have been following, even well-publicized workplace bullying-related suicides have not yet been sufficient to spur our legislatures to adopt a baseline workplace bullying law. So…we have our work cut out for us here in the States.

      That said, I think the situation in Australia is notably more advanced, legally speaking, and I am heartened by the fact that various Australian states have been hospitable to both civil and criminal legislation. I dearly hope that there continues to be forward movement. I know that you will continue to contribute your voice toward making it so.

      Thank you again for sharing your perspectives with us.

      • Thank you again David, I completely understand your objectivity and common sense approach to this problem. You are so well versed with the intricacies of the law that you cannot, realistically, see that criminalizing workplace abuse is a viable option. My grandmother used to use the term “throwing effort after foolishness” perhaps this is what one does when one has difficulty separating the subjectivity from possibility. I know the people I have dealt with, I know their mentality and their ability to step away from accountability in order to escape culpability. I have watched this all my life, with a certain unpleasant ‘awe’ at the many facets of the human condition. How are one group governed by ethics & morals that another group can rise above.

        The fact that I have difficulty reconciling the deaths of the two young people to whom I refer because they were pointless, avoidable and they were borne of the kind of vile misconduct that is sickening to contemplate. To attack a lesser human being and to taunt them, just for the sheer pleasure of the power the abuser experiences. Unconscionable, cruel and evil.
        I have seen that excitement David, when I was finally reduced to tears, I saw that gloating pleasure in the eyes, the straightening of the stance, the widening placement of the feet – a lifetime’s experience with animals has well familiarised me with that stance David. They can scarcely contain their desire to actually physically attack and if you stand ur ground, such an outcome is even less unlikely.

        It is impossible to perform one’s duties under these conditions and I hear stories of people fleeing one grotesque workplace situation and landing in another and I do not believe that it is simply because some people will always be targets, always be victims.

        Yet I do believe that some people will always be monsters and I will hold dear the hope, albeit, throwing effort after foolishness, that the laws in this country will be reformed to criminalise cruel psychological, emotional, sexual and physical abuse.

        I suspect that in my little missive I have, in fact, shot myself in the foot but that is one of the beauties of ignorance or is it idealism – I can dream and maybe, just maybe, it might happen.
        If we had, in Australia, anything resembling your Healthy Workplace Bill, I would be very satisfied and hopeful but we don’t our governments only understand bullying and, if bullying the bully is the only way we will affect change, then we will have to be satisfied with this option, no matter how imperfect – it is a stand. David, you are very special to me and your patience is truly admirable, thank you for taking the time to reply XO<3

  8. I too have seen that characteristic stance…the lighting up like a jack-ol-antern at the prospect of diminishing another human being. It is truly a terrible thing witness and to have to incorporate into one’s view of the world and understanding of the potentials of human beings. It doesn’t surprise me at all that people don’t/ won’t/ can’t believe it. But I’ve seen it.

  9. One thing I am aware of each and every day: Unless it has happened to you or observed by you, other have a difficult time comprehending the magnitude of what happens to the target internally. We can be educated but until you have lived the experience, there is little wisdom gained in the knowledge.

  10. Pingback: Meet Professor David Yamada, Suffolk University Law School Professor, and host of the Minding the Workplace blog, from The New Workplace Institute. | Workspace Practices

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