KU law, journalism scholars sum up nonexistent state of workplace cyberbullying laws

LAWRENCE — The COVID-19 pandemic has forced much of life to move online, including education, entertainment, communications and work. While technology has provided a way for many parts of life to carry on virtually, it has also provided space for negative elements of life such as cyberbullying to increase. Schools have made strides in combating the problem in recent years, but two University of Kansas scholars point out in a new book chapter that American law is woefully unprepared to handle workplace cyberbullying.

In fact, such laws currently don’t exist, as Genelle Belmas and Harrison Rosenthal illustrate in “(Non)existent Laws of Workplace Cyberbullying: Limitations of Legal Redress in a Digitized Market.” The authors examine how American law addresses workplace bullying, legal strategies people have used in such cases, attitudes toward workplace bullying in America, barriers to workplace bullying redress for employees and what needs to be done to further protect employees. The chapter is included in the “Handbook of Research on Cyberbullying and Online Harassment in the Workplace,” edited by Leslie Ramos Salazar of West Texas A&M University.

Rosenthal, a doctoral student in law and journalism as well as a graduate research assistant, and Belmas, associate professor of journalism & mass communications at KU, work together on law and communications research, and they formed the idea for the chapter through their scholarship on communications law.

“Cyberbullying tends to be associated with kids. But it also exists in the workplace, and the law simply has not kept up with it,” Belmas said.

The authors examine the lack of cyberbullying and workplace bullying law in three parts: Regulatory failures, employer liability and current suggested response to workplace bullying. In the first part, Rosenthal and Belmas point out how workplace bullying is beginning to get more attention in the United State, how European countries and policymakers have been ahead of the curve in passing laws to combat the problem, and how researchers are beginning to further address the issue in the United States. However, there is still a lack of a legal definition as to what workplace bullying and cyberbullying are.

“States and state legislatures have been very resistant to policy regarding workplace cyberbullying,” Rosenthal said. “Number one, people still view bullying skeptically and regard it as the domain of schools. You also have to go through American tort law, which requires a great burden of proof.”

Thirty states have thus far introduced legislation aimed at combating workplace bullying, but none have passed. The authors examine the three main avenues of tort law victims of workplace bullying have pursued: Intentional infliction of emotional distress, intentional interference in the employment relationship and appeals to U.S. Equal Employment Opportunity Commission. All approaches have shortcomings, though, as they point out in summaries of cases that have used each approach. In essence, the law doesn’t cover workplace bullying specifically and suggests people need to have tough skin.

The law requires someone accused of bullying or cyberbullying in the workplace to recognize that they are engaged in bullying and not simply act on claims of a victim’s experiencing intentional infliction of emotional distress. In terms of intentional interference in the employment relationships, courts have ruled that someone has to have hiring and firing ability before the actions they take against an employee can be considered bullying, even if the accused bully has the ability to assign work.

“In theory, because I’m not Harrison’s supervisor, and because I can’t fire him, I can’t harass him,” Belmas said. “Even though I could assign him undesirable work.”

Other legal avenues, such as claims through OSHA protection, which has been effective in preventing and providing recourse for physical injuries in the workplace, and Title VII of the 1964 Voting Rights Act, have proven unsuccessful in addressing workplace bullying.

“This whole issue is very gendered. That is part of the reason so many claims have been based on Title VII,” Rosenthal said. “Well over half of workplace bullying incidents happen with a male supervisor bullying a female employee.”

The chapter also examines landmark court cases that have settled liability for employers found to maintain hostile work environments. And while law does not currently adequately cover workplace bullying or cyberbullying, the authors point out how it is in companies’ interest to address the problem through policy, both to reduce their liability and to be a workplace for healthier, happier and more productive employees.

Finally, the authors summarize proposed responses to workplace bullying, including broadening existing statutory frameworks where applicable and enacting legislation. Perhaps most importantly, beginning with a definition of the workplace bullying would be effective for policymakers, legislators and scholars. Currently, it is very difficult to even bring expert witnesses in such cases, because without a definition, judges can simply adopt attitudes such as “it’s only bullying. No expert witnesses are required.”

“Cyberbullying law in America is based on the idea of bullying in general. There basically is no law, because we can’t agree on what bullying even is,” Belmas said. “The courts are therefore far behind our European colleagues and the trends in business and law. We don’t tend to consider the dignity of the workplace as much here.”

Rosenthal and Belmas’ chapter is part of a book that aims to gather research, case studies and interventions on the growing phenomenon of cyberbullying in the workplace. The problem may be beginning to be better understood and addressed in some areas, but the law is still lacking.

“Because legal acknowledgment of face-to-face workplace bullying is still in its infancy, legal acknowledgement of virtual workplace bullying is necessarily in utero,” the authors write. “While some scholars have foreshadowed the urgent dangers posed by increased workplace digitization and internet connectivity, the law, as a reactive instrumentality, is not yet positioned to protect or rehabilitate workers injured by bullying — cyber or physical.”

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Updated on: 10/20/2020