In the #metoo movement, we are seeing more talk about what is bullying and what is harassment. Unfortunately, only one of these is against the law. Bullying, while not against the law, is still something that needs to be investigated and is behavior that needs to stop. However, many times, situations are identified as bullying when in fact those situations are more likely workplace harassment and should be dealt with as such.

I recently attended an excellent training on Title IX and the speaker spent a bit of time talking about harassment and bullying. Then I listened to the Hostile Work Environment Podcast and was struck at how often when someone is being a jerk, rather than calling it out, it is dismissed as “not illegal” so we do nothing. But as they discussed, while bullying may not be illegal, yet, this is behavior that still needs to be addressed.

What is Bullying?

So what is Bullying? It is the persistent, repeated, malicious, offensive, and intimidating behavior which humiliates degrades and displays a lack of dignity and respect for the target, resulting in them feeling vulnerable and threatened. Sounds a lot like workplace harassment, doesn’t it? The key difference is bullying is not done because of a protected class, perhaps this person is an equal opportunity bully. It is up to you, the HR professional conducting the investigation to determine if there is harassment or bullying and what the next steps should be.

In the United States, there are 10 federally protected classes: Race, Color, Religion or Creed, National origin or ancestry, sex, age, physical or mental disability, veteran status, genetic information, and citizenship. You will want to check your state and local regulations as many states have additional protections.

When Should HR Get Involved in Bullying at Work?

As an HR professional, you should be investigating every situation that might be harassment. Working through the complaint, you may come to the conclusion that the behavior is not directed at the individual due to a protected class. I would encourage you to review the case again, just to ensure you are correct. Many times, we are quick to dismiss behavior as bullying if we cannot immediately see a protected class. It is always good to take a closer look at the situation. Is this really a situation where the person is a jerk to everyone or do they only treat women or men or POC that way? You may need to do some digging and review past files to truly get to the heart of this. I think we as HR professionals need to do a better job of looking at an employee’s past behavior looking for patterns. You know an employment attorney will do that digging, so you want to be sure you are addressing any illegal behavior as soon as possible.

And what if you really do have an equal opportunity jerk on your hands? Just because it’s not illegal (so far), doesn’t mean you shouldn’t address the behavior. We need to have a higher standard than “not illegal” when it comes to behavior in the workplace. You can start with your policies and procedures. Have you included language around behavior? Nordstorms instructs their employees to “Use Good Judgment in All Situations.” Perhaps you want to include examples of what this does or doesn’t look like to help your employees understand what you mean by “good judgment.”

Holding Your Employees Accountable for Bullying and Workplace Harassment

By defining this for your employees, it will make it easier for you to hold your employees accountable and you definitely need to hold your employees accountable for their behavior. Any violation of the behavior policy should be dealt with like any other policy violation. You need to be consistent.

Plaintiff attorneys are starting to look for different ways to use current laws to protect employees from bullying behavior: Simple assault and disorderly conduct are starting to get used, especially if there is a physical threat included in the bullying.

And while it should go without saying, you want to be sure you are not retaliating against the employee who is complaining. Again, even if the behavior is bullying and not harassment, you may fall into retaliation.

Legally, you might not have to do anything about bullying, but it is in your best interest to address the behavior to have a positive work environment.