Bullying Investigations: Key Considerations for Workplace Investigators
Nearly a third of American workers have been bullied at work, according to a 2024 survey by the Workplace Bullying Institute (WBI). Thirty-two percent of respondents in the WBI survey reported experiencing “abusive conduct that is threatening, intimidating, or humiliating; work sabotage or verbal abuse” in their current job or work history.
Such bullying not only affects the employees involved, but also creates challenges for employers and workplace investigators. Claims of bullying are different from allegations of discrimination, harassment, and retaliation, which implicate specific employment laws. By contrast, bullying is not prohibited under federal or state law, so there is not a specific legal test to analyze. Bullying allegations also often involve subjective perceptions of workplace interactions that may have legitimate business purposes, such as providing performance feedback. Employees complaining of bullying may also express their concerns in vague or conclusory language—for example, by calling a manager’s criticism “hostile” or “aggressive.”
In this post, we discuss strategies for workplace investigators handling bullying claims. We offer some ideas on how to formulate relevant, actionable questions to structure the investigation. Clearly defining the scope also helps ensure the investigator gathers relevant evidence and develops factual findings that will inform and assist employers.
Identify Relevant Policies. The investigator must identify and consider relevant policies when analyzing alleged bullying behavior. There is no single definition of workplace bullying. Some employers have policies prohibiting “bullying” or “abusive conduct,” though many do not. Anti-bullying policies often vary in their content. Employers without anti-bullying policies may also have other misconduct policies that may cover conduct reported as “bullying.”
Given this varied landscape, it is important for investigators handling bullying claims to identify and review any relevant policies. This will help frame the scope of the investigation in terms that allow the investigator or employer to determine if a violation of policy has occurred.
By way of example, a California statutory definition of “abusive conduct” includes many concepts typical of anti-bullying policies. Although California law does not prohibit workplace bullying, the state does require employers to cover “abusive conduct” during mandatory anti-harassment training. Government Code Section 12950.1(h)(2) defines “abusive conduct” to mean workplace conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Such conduct must be committed “with malice.” The conduct may include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets.” Alternatively, “abusive conduct” may take the form of “verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating,” or the “gratuitous sabotage or undermining” of an employee’s work performance. Generally, a single act will not constitute abusive conduct unless it is “especially severe and egregious.”
This definition, and the policies that follow it, provide some important lines of inquiry for investigators. For example:
Did the alleged conduct occur on a single occasion or repeatedly?
Was there potentially a legitimate business reason for the conduct?
Did the conduct involve any insults, epithets, or derogatory language?
Does the evidence suggest the alleged bully was gratuitously sabotaging the complainant’s work?
If the conduct occurred, can it reasonably be considered hostile and offensive, or intimidating and humiliating?
Is there evidence that the alleged bully acted maliciously?
Define the Alleged Conduct in Concrete Terms. The investigator must define the alleged conduct in concrete terms. Employees complaining of bullying may cite a wide variety of conduct. For example, a complainant may report “belittling” comments, “aggressive” communication, “unfair” performance criticism, “unmanageable” workloads, “impossible” deadlines, exclusion from meetings or work-related activities, teasing or ridiculing, or many other types of conduct. Investigators handling such allegations should consider if the complainant is alleging the conduct was motivated by a protected characteristic. If so, the allegations should be analyzed as potential discrimination or harassment. However, if not, the conduct may constitute bullying.
It is important for investigators to ask probing questions so they can specifically define the alleged conduct. For example, perhaps a complainant alleges his supervisor was “aggressive” and “belittling” during a one-on-one meeting. This is a good starting place, but more information is needed. How was the supervisor “aggressive”? Did she raise her voice? If so, to what extent? Did she yell or scream? Similarly, in what sense was the supervisor “belittling”? Did she use demeaning language to denigrate the complainant? If so, what specific words did she use? Alternatively, was her tone of voice belittling? If so, what vocal characteristics created this impression?
As with any investigation, investigators should also gather details about the circumstances of the alleged conduct. For example, investigators should ask about the context and frequency of the conduct and whether others were present. Such details will help the investigator uncover other evidence that may corroborate or discredit the allegations. Witnesses may confirm that the alleged conduct occurred. Witness perspectives can also help an investigator determine how a reasonable person would perceive the conduct. If three witnesses consistently found the conduct hostile or offensive, this may help the investigator determine that the conduct rose to this level. Evidence of the broader context can also help the investigator determine whether conduct was for legitimate business purposes or motivated by malice.
Examine All the Evidence. As with any investigation, investigators handling bullying claims must gather relevant evidence about issues within the scope of the inquiry. This will generally include providing the alleged bully with an opportunity to respond to the allegations. The respondent’s perspective will help define the extent of the issues in dispute. For example, the respondent might deny engaging in any of the alleged conduct, admit some actions while denying others, or acknowledge doing everything described by the complainant but offer legitimate business reasons for doing so.
Investigators should also explore other evidence relevant to the disputed issues. This might include reviewing any relevant documentation, such as emails or text messages; obtaining witness accounts; or, determining if anyone else experienced similar conduct. Investigators will also generally want to test any purported legitimate business reasons the respondent may offer. For example, the investigator might consider whether the conduct is consistent with established policies or past practice. Investigators should also consider the reasonableness of the explanations offered by the respondent. For example, even if the complainant had performance or attendance problems, that may not justify the respondent publicly criticizing the complainant in front of other employees.
Once the investigator has carefully defined the scope of the investigation in light of the employer’s policies and has examined all the evidence, the investigator will be able to draw reasoned conclusions. This will assist the decision-maker in deciding what, if any, corrective action or other measures are warranted.
