Bullying at work: Hard to define, even harder to ban

January 7, 2014, 5:58 PM UTC
Illustration: ImageZoo/Corbis

FORTUNE — In 2013, Congress had one of its least productive years ever, with the number of bills passed reaching historic lows.

In part, states and local legislatures have made up for the slack on the national level. This was particularly the case on issues related to the workplace. State and local governments across the U.S. passed bills on the following issues in the previous year: protecting the right of employees to carry a concealed weapon in their vehicle, even if it’s on company premises; limiting the circumstances in which employers can deduct money from an employee’s pay; controlling when employers can ask for criminal records as part of a background check; limiting the use of credit checks as part of a background check; and expanding non-discrimination laws to include relatively new protected classes, such as unemployment status and homelessness.

Perhaps the most prominent area of legislative expansion in the recent past — at least at the state level — has involved social media. By way of background, in 2012, four states prohibited employers from asking applicants or employees for their social media passwords. In 2013, eight more states passed comparable bills. Expect more in 2014.

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Yet, I know of no employer asking for social media passwords. Indeed, at large human resource conferences, when I have asked attendees for their views, I have not had one HR professional say that he or she favors asking for social media passwords. So, from my rather unscientific sample, it seems we are passing laws in search of a problem.

At the same time, bullying at work is painfully common. A study from CareerBuilder published in 2012 indicates that 35% of employees feel they have been bullied at work.

Yet, there are no laws in the U.S. prohibiting bullying at the office. Since 2003, anti-bullying bills have been introduced in 25 states. All have failed.

In general, bullying is lawful. It may become unlawful only if an individual is targeted for bullying because of her sex, race, disability, or membership in another protected group (or because he or she has engaged in a protected activity, such as taking family or medical leave).

Still, the cost of bullying — both emotional and physical — on its victims can be substantial. It can affect witnesses too, who may fear that they may be next and often quite. Bullying is undeniably bad business.

So why are workplace anti-bullying bills failing, even in states that tend to pass laws that protect employees, such as California, Maryland, and Connecticut?

Perhaps it is because the definition of bullying can be incredibly subjective. How do we write what one might argue is really a code of civility? We all can agree that screaming at an employee is wrong. But what is the difference between screaming and raising one’s voice? Sometimes it is nothing more than perception.

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There is also the issue of power. Many proposed bills include threatening and intimidating conduct as part of the definition of bullying. How does this apply when we are dealing with managers? Isn’t power, by definition, somewhat intimidating? Is letting an employee know that he will be fired if he doesn’t improve his performance threatening?

Employees could potentially use bullying laws to strong-arm managers into not managing them. A poor performer could argue that legitimate performance management, if not genteel, constitutes bullying.

All of these issues make bullying laws a well-intentioned but ultimately flawed attempt to solve a major problem in the office. And even if bullying is lawful, that does not mean employers should tolerate it. Employers should address examples of unacceptable bullying in supervisory training and include employees’ treatment of colleagues (particularly subordinates) in their performance evaluations. In the end, though, some problems are best left as business, not legal, matters.

Jonathan A. Segal is a partner at the law firm Duane Morris LLP, where he is a member of the firm’s employment, labor, benefits, and immigration practice group. This article should not be construed as legal advice.