Labor and Employment

Is Workplace Bullying Illegal?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn whether workplace bullying is illegal and what you can do about it.

As efforts to prevent bullying of children at school have become widespread, many adults have realized that they are facing bullying at work. Workplace bullying—teasing, belittling comments, yelling, name-calling, and even threatening employees with discipline or physical harm—often goes unchecked. Employees may be afraid to speak up against a workplace bully, especially if the bully is a manager. And employees who do complain are often surprised to learn that bullying isn’t necessarily illegal.

What Is Workplace Bullying?

According to the Workplace Bullying Institute, workplace bullying is abusive conduct that takes the form of verbal abuse; threats, humiliation, or intimidation; or interference that prevents the target from getting work done (sabotage). As in the schoolyard, bullying often starts when one person starts picking on someone else and then enlists others to join in. The workplace bully may be a manager, coworker, vendor, or even a customer.

When Is Bullying Illegal?

To date, neither federal law nor the law of any state prohibits workplace bullying outright. Although a number of states have considered anti-bullying legislation, none has yet to pass such a law. That doesn’t necessarily mean bullying is legal in every situation, however.

Bullying is illegal when it violates federal or state laws prohibiting discrimination and harassment in the workplace. These laws protect employees from harassment based on protected characteristics, such as race, color, national origin, religion, sex, age, or disability. If a workplace bully is targeting an employee based on a protected characteristic, that could qualify as illegal harassment. The employee would have a hostile work environment claim, if the unwelcome conduct is severe or pervasive enough that a reasonable person would find it to be offensive, hostile, or abusive.

Example: Carla’s manager, Jared, makes fun of her and picks on her constantly, calling her “incompetent,” “stupid,” and “lazy.” If these comments are based on Carla’s gender, they might add up to harassment. For example, if Jared constantly says things like, “I know women aren’t that bright, but you really take the cake,” his bullying might be illegal sex-based harassment. The same is true if Jared bullies all of the women who report to him, but none of the men. However, if Jared’s comments have no link to gender, or if he bullies all of his reports, regardless of sex, his actions are probably not illegal.

In extreme cases, workplace bullying might violate other laws. For example, if a workplace bully threatens to physically harm an employee, the employee might be able to sue for assault. Likewise, a workplace bully who menaces an employee on the way to and from work might be guilty of stalking.

California recently became the first state to require larger companies (those with at least 50 employees) to train managers on preventing abusive conduct at work, even when the bullying is not based on a protected class. Abusive conduct is defined as any malicious conduct that a reasonable person would find hostile, offensive, and unrelated to the employer’s legitimate business interests. This includes verbal abuse, threats, and efforts to sabotage or undermine someone’s work performance. However, the law does not make abusive conduct illegal or allow employees to sue employers who fail to stop it.

If You Are Facing Workplace Bullying

If you are being bullied at work, consider filing a complaint with your company’s HR department. Even if the bully is not breaking the law, it is in your employer’s best interests to put a stop to workplace bullying. Bullying drags down morale, performance, and productivity, without any benefit to the company. Savvy employers will take steps to stop bullying as soon as they are aware of it.

Keep notes of the mistreatment you have faced, including dates, times, what was said, and who else was present. Also keep records of the effects the bullying has had on you, including absences, stress, and medical problems. These records will help your company investigate and take action to stop the problem. If you aren’t satisfied with your company’s response, your notes will also help you decide whether and how to take action against your company.

If your company doesn’t take your concerns seriously, talk to an attorney right away. If you are facing illegal harassment, you may have only a short time—possibly as few as 180 days—to file a complaint with a government agency. You must file such an administrative complaint before you can file a lawsuit, so missing this deadline will likely mean you have no legal recourse.

An experienced employment attorney can assess the facts of your case and determine whether you have viable legal claims against your employer. An attorney can help you negotiate with your employer or take legal action to assert your rights.

Questions for Your Attorney

  • I'm upset about being bullied at work, and my health is suffering from the stress. Can I sue the bully personally?
  • Can a workplace bully's actions also amount to a crime, for example, if I’m being touched in a sexual way or followed home from work?
  • Do I have to use my company’s complaint system or can I go straight to a government agency or court?

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