The problem of bullying has gained considerable national attention over the past few years. While much of it is focused on children and teens, bullying is also an element of workplace discrimination in California. In response, the state recently enacted a law requiring employers to include “abusive conduct” prevention training in their already mandatory sexual harassment avoidance training for supervisors.
Law AB2053 went into effect on January 1 of this year. It provides a definition of abusive contact as behavior that “a reasonable person would find hostile, offensive” and has no connection to an employer’s legitimate business purposes. Such conduct can include verbal and physical conduct of a “threatening, intimidating or humiliating” nature or deliberately undermining a person’s work performance.
In addition, bullying is not limited to actions of a supervisor towards an employee. It can be directed from an employee towards a supervisor or occur between employees. Behavior from a third party who visits the workplace can also constitute bullying.
One thing the law does not do is tie bullying in with any other categories of illegal discrimination such as age, gender, race or disability. Bullying is abusive behavior that has no element of these previously protected areas of workplace discrimination in California.
Training requirements already in place before the law took effect stated that companies with a minimum of 50 employees must provide at least two hours of sexual harassment prevention training to their supervisors every two years. If an employee is promoted to supervisor, he or she must undergo training within six months of their status change.
Right now there is no language in the law that indicates whether or not supervisors who recently received sexual harassment prevention training must immediately undergo the new abusive conduct prevention training. Anthony Zaller, author of California Employment Law Report, suggests that “employers should approach this issue with caution.”
The law also does not address the issue of accepted practices such as performance improvement programs, in which employees are often subjected to strict requirements. Business and labor expert Todd R. Wullfson of the law firm Carothers, DiSante and Freudenburger advises companies to be more detailed in memos outlining such programs.
Wullfson says that such correspondence should describe the specific behavior triggering the discipline along with previous warnings. Most important is documentation stating that the employee is the only one exhibiting such behavior and instances with other employees has not been overlooked.
As bullying continues to gain scrutiny as a form of workplace discrimination in California, employees can be proactive by creating a company anti-bullying policy. Results of a survey conducted by the Society for Human Resources Management showed that more than half of participating employers had seen instances of bullying in their workplace, but less than half said that their workplace had an anti-bullying policy.
Negative effects of workplace bullying go beyond the immediate issues of poor morale and increased turnover. The American Psychiatric Association has stated that bullying can cause psychological damage, so a victimized employee may miss work to undergo treatment, or at least suffer from diminished work performance. A strong anti-bullying policy can also help eliminate abusive behavior based on non-protected categories such as weight or clothing style.
As lawmakers continue to define and address bullying as an element of workplace discrimination in California, it can be difficult to navigate the changing landscape and understand your specific rights. Contact our LA workplace discrimination lawyer for expert answers to your questions.