Bloomberg Law
Sept. 8, 2021, 8:00 AM

Bullying in the Workplace: A Harbinger of Serious Problems

Amy R. Foote
Amy R. Foote
Abby Barasch
Abby Barasch

Who remembers their first encounter with a classroom bully? It was the kid who exhibited unwanted and aggressive behavior and who made threats, spread rumors, attacked the “weaker” kids physically and/or verbally, and excluded those same kids from the group on purpose. That bully controlled the school social dynamics through intimidation and fear.

Unfortunately, that bully from grade school is present in the workplace and is still demonstrating that intimidating and threatening behavior, although often much more adeptly and covertly.

Bullying in the workplace is all too prevalent and generally includes repeated incidents or a pattern of behavior which is intended to intimidate, offend, degrade, or humiliate a particular person. Workplace bullies assert their power and influence through targeted aggression and personal attacks. Similar to sexual harassment, bullying is uninvited, undeserved, and unwarranted.

Bullying Not Based on a Protected Characteristic. A manager criticizes a senior consultant’s work product calling it unsophisticated and telling the senior consultant that her three-year old could write a better report. Using profanity the manager screams at the senior consultant that she must provide better work product. The excessive criticism continues for several weeks with each presentation and memorandum the senior consultant prepares for the manager. The manager shares the work product with other employees at the firm during coffee breaks and meetings, loudly mocking the senior consultant. The manager uses demeaning and obscene language to describe the senior consultant’s work product always within earshot of the senior consultant’s work station.

Bullying Based on Protected Characteristics—Sex Stereotyping and Sexual Orientation and Gender Identity. An admin likes to wear jewelry, and his work attire frequently includes earrings and necklaces. His supervisor thinks it’s weird and strange that, as a man, the admin wears jewelry. She frequently makes sarcastic comments to him about his appearance and refers to him “jokingly” as her “office boy.” The admin, who hopes to develop his career in the area of customer relations or human resources, applies for an open promotional position that would involve working in an area of the firm where he would interact with the public. His supervisor tells the admin that if he wants that job, he had better look “more normal” or else wait for a promotion to mail room supervisor, where he won’t be seen.

The supervisor also is “suspicious” that the admin is gay, which she says she “doesn’t mind,” but she thinks that the admin is “secretive.” She jokingly and persistently starts asking him questions about his private life, such as “Are you married?” “Do you have a partner?” “Do you have kids?” The admin tries to respond politely “No” to all her questions but becomes annoyed, uncomfortable, and stressed from the intrusive personal questions. The supervisor starts gossiping with the admin’s co-workers about his supposed sexual orientation, inquiring if anyone knows whether he likes to date women or men.

No Federal, State Laws

Yet, unlike sexual harassment and other types of harassment, existing federal and state laws only protect workers against bullying when it involves physical harm or when the target belongs to a protected group of people who share a common trait such as race, gender, age, disability, or veteran status.

These classes of individuals are legally protected from being harmed or harassed by laws, practices, and policies that discriminate against them due to a shared characteristic. Behavior that creates a toxic work environment only violates discrimination laws if the offensive behavior or unequal treatment is based on a protected characteristic.

Recently, there has been no shortage of examples of bullying in the workplace in our current news cycle. In August, Gov. Andrew Cuomo (D-N.Y.) announced his resignation, amid a sexual harassment probe following accusations brought by 11 women who worked for him.

The first former staffer, who spoke up and published her personal account of Cuomo’s inappropriate behavior on Medium, described a culture within the governor’s administration where sexual harassment and bullying were so pervasive that it was not only condoned but was expected. She alleged that the governor used intimidation to silence his critics and exploited the power dynamic with those who worked for him. She added that those who worked for him dare not speak up for fear of facing the consequences—more intimidation, threats, insults, and disparagement.

The Aug. 3 report on the investigation into the sexual harassment allegations against Cuomo describes his bullying and harassing tactics. The workplace he created “was extremely toxic, extremely abusive. If you got yelled at in front of everyone, it wasn’t any special day ... . It was controlled largely by his temper, and he was surrounded by people who enabled his behavior.”

The former governor’s bad behavior became normalized and even admired, according to the allegations. Those who may have been in a position to do something turned away or, worse, retaliated against those who bravely did speak up.

Another recent example is that of Scott Rudin, a powerful, successful, and well-known Broadway producer who is now facing numerous accusations of bullying and disturbing interactions with colleagues. Similar to Cuomo, there were murmurings for years that Rudin threatened, verbally abused, and threw objects at those who worked for him and with him. And similar to Cuomo, Rudin continued to thrive and dominate the entertainment industry that tolerated and accepted his reportedly abusive behavior.

Despite his alleged bullying behavior, Rudin produced numerous Broadway shows and received accolades and awards.

Companies of all sizes routinely offer and even require employees to participate in trainings around topics such as leadership, executive presence, and management development. Workshops that focus on leadership style often emphasize leaders who are decisive, hard-nosed, results-oriented, hands-on, and who display an image of strength and a strong vision.

Yet there is a difference between strong leadership and bullying. While we want effective leadership to drive success and to inspire employees to optimize their potential, we do not want leaders who dominate and govern by fear or a leader who discredits and humiliates. Too much bad behavior has become normalized and even admired.

A Red Flag for Other Potential Issues

A toxic or bullying work environment should be seen as a red flag for other possible troubling behavior, as the psychological motivations behind a workplace bully are often the same as someone who sexually harasses in the workplace. All bullying allegations should be thoroughly investigated by corporate in-house and compliance departments or outside consultants.

Preventing bullying at work, especially by those in management or leadership positions, should be a component of a company’s workplace harassment prevention program. A company should have written policies and procedures in place that provide clear examples of unacceptable behavior and working conditions.

Additionally, a code of conduct should state, in clear terms, a company’s view on workplace bullying and its commitment to the prevention of workplace bullying. It should also state the consequences of hostile and intimidating behavior and provide a commitment to ensure that anyone who reports troubling behavior will not suffer retaliation for those reports.

Ensuring a cohesive and safe work environment for all employees is important and necessary for driving profits and success.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Amy R. Foote is a partner with StoneTurn. She has nearly 20 years of legal, regulatory, compliance and investigative experience as a prosecutor, internal corporate counsel, and litigator. She has advised public and private sector clients on compliance issues, commercial disputes, governance issues, and complex litigation and investigations.

Abby Barasch is a managing director at StoneTurn. She has nearly two decades of experience in conducting and overseeing complex international and U.S. investigations, including fraud inquiries, asset tracing, transactional due diligence, Foreign Corrupt Practices Act and anti-bribery and corruption investigations, employee misconduct, and third-party risk assessments.

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