Much of what Cherry complained about at trial was not strictly sexual harassment. He said in testimony that even after he and Reasoner no longer were permitted to work together, the former supervisor, as a form of administrative harassment, would file paperwork for injuries Cherry never sustained or catch Cherry's attention only to laugh in his face. Witnesses saw Reasoner deliberately bump into Cherry twice while they walked past each other. Even though the bumps contributed to what became an environment too hostile for Cherry, it was legal because it was not sexual.
Lacking Solid Legal Definition
"Bullying" is a term without a solid legal definition, but it can be loosely defined as unwanted, hostile behavior. The word, which has attracted much attention in the fight against school bullying and cyber-bullying, is meant to be a way to label unhealthy workplace behaviors that are not targeted based on race or gender. In the workplace, experts say, sexual harassment and bullying often take place concurrently; also, bullying progresses into other forms of harassment. "There is a blurring of the boundaries between harassment and bullying" and even attorneys "are confused about this," says Strauss. Bullying consultant Mattice adds, "I think sexual harassment, discrimination, all those behaviors are a form of bullying. The only difference … is that one's legal and one's not."
There now is a movement to pass state-level legislation to protect employees from workplace bullying. The so-called Healthy Workplace Bill is the brainchild of husband-and-wife psychologists Gary Namie and Ruth Namie, who are pushing the legislation and coordinating research through their Bellingham, Wash.-based Workplace Bullying Institute. The bill "was crafted to plug the gap in discrimination law," Gary says. It is intended to provide an incentive for employers to act to prevent bullying and provide legal redress for anyone in a hostile work environment, regardless of protected-status membership.
Simple as it sounds, such a bill raises many thorny issues. Brent Darnell, a management consultant to contractors who focuses on employee behavior, says a lot of the harassment he sees is the unintentional result of "alpha males" creating bonds with others on jobsites by teasing and being condescending as a way to push for results. Perpetrators are shocked when they understand the effects on others, says Darnell. Training, rather than a new law, would go further in limiting harassment, he adds.
The importance of behavior isn't lost on contractors. Rocky Turner, chief executive of industrial contractor and steel erector LPR Construction Co., Loveland, Colo., says his company tracks the reasons people leave the company and encourages its managers to be more aware of their behavior. "Managers are becoming kinder and gentler," he says.
Businesses have valid reason to dislike the idea of more legislation that entitles unhappy employees to monetary compensation. Maryland AGC's McCulloch also has doubts about anti-bullying laws, such as the one introduced in his state. "It creates a series of traps even for conscientious employers. It opens the door for juries to deal with sympathetic plaintiffs in [cases] no employer would ever conceive of as bullying. The approach, though well intentioned, is not well thought out."
Legal experts also wonder if new state-level laws should be asked to patch gaps that exist in federal law. "It may be better if Title VII could be revised," says Mattice, who adds that this is "probably a dream." It also may be an idealistic dream to legislate precisely what rules of civility people in the workplace must observe while making employers responsible for violations.