Question:

I know California has a new law regarding “abusive conduct” in the workplace, but I heard it does not specifically prohibit bullying in the workplace. Is that true?

Answer:

You are correct. Currently, California law does not prohibit “bullying” in the workplace. The California Legislature has introduced several bills over the last few years attempting to regulate employee conduct by prohibiting “bullying” in the workplace but they could not agree on a definition of workplace “bullying.”
California law requires every employer to act to ensure a workplace free of sexual harassment by implementing certain minimum requirements, including posting and training requirements. Since 2005, employers with 50 or more employees are required to provide at least two hours of training and education regarding sexual harassment prevention to all supervisory employees.
Beginning January 1, 2015, employers with 50 or more employees must add “abusive conduct” prevention training to the sexual harassment prevention training they provide to supervisors. In determining the need and potential benefit of this law, the Legislature cited a 2014 study by the Workplace Bullying Institute (WBI). The WBI study surveyed 1,000 employees in January 2014, finding that 27% of American workers are either currently being bullied (7%) or have been bullied in the past (20%) and that workplace bullying affects 65 million workers (48% of workers), who have either been bullied or witnessed bullying. The Legislature also recognized that because abusive work environments can reduce productivity and morale, lead to higher absenteeism rates, frequent turnover, and increases in medical and workers’ compensation claims, training to prevent such conduct will benefit employees and employers.
“Abusive conduct” is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” “Abusive conduct” may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating. “Abusive conduct” may also include the gratuitous sabotage or undermining of a person’s work performance. There is no requirement that the abusive conduct be linked to a protected category, but the conduct must be objectively abusive, what a “reasonable person” would find offensive, and conduct must be either pervasive (requiring multiple acts) or severe.
Although “abusive conduct” is not unlawful in and of itself, it may constitute unlawful harassment or discrimination if it is based on a legally-protected classification, including sex, sexual orientation, age, race, religion, or physical or mental disability. For example, the following types of workplace scenarios could be both “abusive conduct” and harassment or discrimination prohibited under federal and California law:

  • Two younger employees often take and hide an older co-worker’s prescription eyeglasses, which leaves the older employee disoriented and unable to effectively perform her work;
  • A supervisor repeatedly insults an employee because of the employee’s religious clothing;
  • A large, muscular employee regularly corners and threatens to beat up a physically disabled employee unless the disabled employee calls the larger employee “daddy.”

The “abusive conduct” training requirement provides a mechanism for defining unacceptable conduct and disciplining employees who engage in abusive conduct. The training also helps educate the workforce and leads to a respectful work environment.