Should workplace bullying be a criminal offense in the U.S.?

A recurring question within the workplace anti-bullying movement in the U.S. is whether workplace bullying should be a criminal offense. This discussion has been fueled by recent legal developments in Australia, where the state of Victoria has criminalized workplace bullying, as well as ongoing awareness that under French law, “moral harassment” can be a criminal offense.

I cannot speak with sufficient authority about whether the legal systems in other nations are capable of handling criminal claims for workplace bullying, but I do believe that making standard-brand workplace bullying a criminal offense in the U.S. would create significant challenges for targets seeking justice and seriously disrupt our workplaces.

This position is informed not only by a decade of research, advocacy, and public education about workplace bullying as a law professor, but also by my experiences as a former assistant attorney general for New York State enforcing workplace safety laws and as a former public defender arguing criminal appeals on behalf of indigent defendants in New York City.

Here are some of my specific concerns:

Overworked police and prosecutors offices

The idea that already overburdened police departments and prosecutors offices would be able to investigate a rush of complaints from workers claiming they were bullied is wholly unrealistic. The criminal justice system cannot handle what’s currently on its plate.

In addition, we shouldn’t expect police departments, labor departments, and prosecutors offices to create special units to handle workplace bullying complaints. At best, state or federal labor departments might be able to prosecute a small number of easy-to-prove, high visibility cases. Anyone who expects more should read up on the status of city, state, and federal law enforcement budgets.

No private cause of action

Those who favor criminal sanctions for workplace bullying should be aware that if law enforcement authorities don’t want to go forward with a prosecution, there is no further action on a case. If workplace bullying is made a criminal offense, those whose complaints do not lead to a prosecution will have no further recourse; one cannot pursue a criminal case solely as a private citizen.

No damages to the target, no punishment of organizations

In most cases, the criminal justice system does not provide compensation to victims; that’s what the civil justice system is designed to do. Therefore, even a successful prosecution of an individual bully will not provide damages to the target. (And try collecting from someone who is imprisoned, in any event!)

Also, because individuals, not institutions, are the subject of criminal prosecutions (as opposed to, say, employment claims that can be brought against employers), there will be no organizational accountability for bullying situations enabled by abusive or dysfunctional work environments.

Impact on workers and workplaces

This is a definitely an example of beware, you may get what you seek.

First, workers already are reluctant to file claims against their employers when they have valid claims recognized by the law. How many would be willing to press criminal charges by calling the police or some other government entity?

Second, how would the presence of police or criminal investigators showing up at an office in response to a complaint about bullying at work further fracture already damaged employment relationships? And would there be any disincentive for an underperforming, unhappy worker to “drop a dime” on a supervisor he doesn’t like?

Burden of proof

Some have criticized the Healthy Workplace Bill for creating too high a legal threshold for making a successful claim at trial, especially the requirements that targets prove the behaviors (1) were intended to harm them and (2) caused tangible mental or physical harm.

Well, that’s nothing compared to proving a criminal claim for workplace bullying, where the burden of proof is beyond a reasonable doubt. Think the Casey Anthony acquittal. Think the O.J. Simpson acquittal.

It bears mentioning that the federal Occupational Safety and Health Act does provide for short terms of imprisonment for willful violations of workplace safety codes that cause a worker’s death. However, despite many worker fatalities due to unsafe working conditions, this is one of the very least invoked provisions of the law. Criminal prosecutions under OSHA are a rarity.

Existing criminal law

Extreme cases of workplace bullying, especially those that involve physical harm, already may be violative of existing criminal laws for assault, battery, or false imprisonment. Various criminal wiretapping and surveillance laws may cover bullying that uses advanced technologies.

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In sum, criminalizing workplace bullying in the U.S. sounds a lot better in theory than it would play out in reality.  Some targets, understandably angry about being subjected to this terrible form of abuse, imagine with great satisfaction their tormenters being hauled off to prison. However, in most cases of workplace bullying, this would be extremely unlikely to occur.