Key points
- Implementing an anti-bullying policy is an important starting point for workplaces in developing a holistic and comprehensive strategy for addressing and preventing bullying.
- Anti-bullying policies should:
- Clearly define bullying;
- Differentiate bullying from legitimate feedback;
- Specify guidelines for reporting and investigating bullying;
- Afford confidentiality to the fullest extent possible;
- Delineate consequences for bullying;
- And specify proactive measures to prevent retaliation.
A lawyer who is being bullied at the organization where they work often has limited recourse.
While the bullying may include abusive behavior like shouting, insults, or invading space, no federal or state law makes workplace bullying illegal. Only when the bullying is based on a protected characteristic such as race, sex, religion, or disability does the behavior meet the legal definition of harassment and therefore become unlawful.
Lawyers who cannot prove that they were bullied because of such a characteristic therefore often have few, if any, remedies available under law or their organizations’ anti-harassment policies, even though the impact of bullying may be just as damaging as the behaviors classified as harassment.
And bullying is prevalent in the legal profession: Nearly 1 in 4 of the more than 6,000 Illinois lawyers who responded to a 2023-2024 survey on bullying in the legal profession, which was sponsored by the Commission on Professionalism, reported being bullied in the past year, with deleterious impacts on their health, productivity, and workplace retention.
October is National Bullying Prevention Month and a fitting time for legal organizations to review their policies to ensure that they comprehensively address workplace bullying and provide lawyers with a mechanism for meaningful recourse.
Why workplace bullying policies are needed
Almost 40% of lawyers who participated in the study said bullying is ingrained in the culture of the legal profession; however, many cited a disappointing lack of consequences for the bully, “just let it go” policies from workplaces, and a fear of reporting the behavior.
The most reported bullying behaviors included name-calling, shouting, belittling criticism, false accusations, malicious rumors, exclusion from important work meetings, stealing credit for work, and being asked to do something unethical. Lawyers also reported cyber-bullying, being excluded from employer-sponsored social events, invasion of personal space, shoving, and throwing of objects.
Eighteen percent of the lawyers surveyed said they had left a job practicing law due to bullying, and many emphasized other negative impacts for them and their workplaces, including feeling less productive at work (39%) and suffering declines in their physical health (20%) and emotional well-being (54%).
“Bullying compounds itself. After being bullied, you begin to worry. Then, you have trouble sleeping. You come to work, but you aren’t working at your full capacity,” a survey participant said.
Only 20% of bullied lawyers said they reported the bullying to a supervisor, upper-level attorney, or human resources.
Many said they decided not to report the bullying for fear of being perceived as “weak,” worries about the bully’s status and potential retaliation, or concerns that their employer would not do anything.
Of those lawyers who reported the bullying, only 18% said that their employer committed to promptly investigating the complaint, and 12% said their employer dismissed their complaint as unimportant or not believable.
“My employer said that was how the bully got things done,” an Illinois lawyer recounted in the survey.
Notably, only 22% of those who reported bullying said that their employer committed to taking appropriate action against the bully.
“It’ll never stop if there aren’t meaningful consequences to bad behavior,” a survey respondent said.
Developing an effective workplace bullying policy
Implementing an anti-bullying policy is an important starting point for workplaces in developing a holistic and comprehensive strategy for addressing and preventing this harmful behavior.
Anti-bullying policies should clearly define bullying; differentiate bullying from legitimate feedback; specify guidelines for reporting and investigating bullying; afford confidentiality to the fullest extent possible; delineate consequences for bullying; and specify proactive measures to prevent retaliation. I delve into each of these below.
1. Clearly define bullying
An effective anti-bullying policy should clearly define the type of conduct and language that constitute bullying.
A sample definition is: “Bullying is repeated, inappropriate behavior that is targeted toward a person (or persons) and that a reasonable person would find intimidating, humiliating, or improperly controlling, including verbal, nonverbal, or physical acts.”
The policy should also include specific examples of bullying behavior, such as those described previously or contained in the Commission’s Bullying in the Legal Profession report.
Importantly, the policy should also differentiate bullying from legitimate feedback regarding performance or work product. It should make clear that the definition of bullying excludes reasonable actions taken by an employer or supervisor when addressing underperformance or violations of personnel guidelines. This helps to ensure that conscientious managers are not precluded from fulfilling their supervisory roles and obligations.
2. Specify guidelines for reporting and investigating bullying
Outlining clear procedures for reporting and investigating complaints of bullying is essential for empowering lawyers to report bullying. It also helps to prevent ad hoc investigatory approaches that are either cursory or inconsistent with due process.
While the steps and personnel who will lead the investigations into bullying will vary depending on the size and nature of the organization, best practices include designating multiple people to whom a bullying complaint can be made, requiring a prompt investigation and documentation of the results, and sharing the results with the complainant and the person accused of bullying.
Additionally, the individuals designated to receive and investigate complaints should be trained on the policy’s procedures and how to appropriately communicate with the complainant, the person accused of bullying, and potential witnesses.
3. Set expectations regarding confidentiality
When I present on this topic, I am often asked how to honor a victim’s understandable request for complete confidentiality while also responsibly following through on the employer’s obligation to investigate and address the complaint, which customarily involves interviewing the person accused of bullying and potential witnesses.
Respecting each of these interests—all of which are legitimate—requires maintaining confidentiality to the fullest extent consistent with a thorough investigation and the organization’s legal obligations, which will depend on the facts of the particular complaint.
Expressly stating this principle in an anti-bullying policy sets expectations for all parties. It helps ensure that designated personnel do not promise complete confidentiality or disclose information regarding the complaint to individuals who do not have a legitimate reason to be advised on the issue.
4. Delineate consequences for bullying
Many lawyers who responded to the Bullying in the Legal Profession survey correctly asserted that bullying will continue unabated if there are no consequences for the behavior.
Accordingly, the anti-bullying policy should delineate a spectrum of consequences for bullying—ranging in severity and accounting for repeat offenses—including verbal reprimand, written reprimand, demotion in job status and/or leadership position, and termination.
In the survey, lawyers repeatedly voiced concern about a lack of consequences for bullying complaints against rainmakers.
One Illinois lawyer put the matter in stark terms: “Sometimes the bullies are big earners, so the other partners accept money in exchange for civility.”
If there is not a genuine, collective commitment to holding all lawyers to the same high standards of conduct, then releasing an anti-bullying policy on paper while exempting certain lawyers from it in practice, will do more harm than good.
And it would be unfair to encourage victims of bullying to take the risks associated with reporting the behavior only to insulate certain bullies from consequences and leave victims undefended against potential retaliation.
5. Specify measures to prohibit retaliation
A fear of retaliation was why many survey respondents said they did not report the bullying they experienced.
“If I said something, I might have lost my job. I feared possible repercussions,” one Illinois lawyer said.
An effective anti-bullying policy therefore should not only expressly prohibit retaliation but also incorporate specific follow-up procedures to ensure retaliation is not occurring.
During an investigation and in the weeks and months following its conclusion, designated individuals within the legal organization should follow up with the complainant to assess whether they are experiencing overt or covert retaliation. They should ask whether the complainant has received insults, negative comments, or threats related to reporting the bullying or otherwise.
To assess whether subtler forms of retaliation are occurring, they should also ask questions such as whether the complainant is receiving an appropriate level of work and whether they are being included in team meetings and customary business development activities.
The goal is to ensure that a victim’s career is not undermined or eroded for reporting abusive conduct.
Disrupting a harmful industry norm
For too long, bullying within the legal profession has been viewed, as one survey respondent stated, as “an expected rite of passage.”
Implementing and enforcing a comprehensive anti-bullying policy within legal organizations is one important step toward disrupting this industry norm and creating a healthier legal profession for lawyers today and generations of lawyers to come.
Disclaimer:
The information provided in this article is for general informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Readers should consult a qualified attorney for advice on specific legal matters.
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