Famiily Rejects Zurich’s Vindication

Pierre WauthierInvestigations into workplace bullying rarely (if ever?) result in an indictment against the employer/company. Why? And what does it mean when a law firm gives the employer/company a clean bill of health?

Most recently, an investigation into the suicide of  Zurich Insurance Group Chief Financial Officer Pierre Wauthier, 53, who killed himself in the summer of 2013, found the company was blameless.  Wauthier left a note accusing company chairman Josef Ackermann of creating an unbearable work environment.

Zurich, an international insurance giant based in Switzerland, asked the Swiss Financial Market Supervisory Authority, known as Finma, to  direct an investigation into Wauthier’s suicide.  The investigation was conducted by a law firm that concluded Zurich’s leaders, including Ackermann, had placed no “undue pressure”  on Wauthier.  Ackermann resigned three days after Wauthier’s suicide, saying he believed Wauthier’s family wanted him to do so.

A couple of years ago, the University of Virginia conducted a high-profile investigation into the suicide  of Kevin Morrissey, the managing editor of The Virginia Quarterly Review, which found the university to be without fault.   This despite the fact that Morrissey had complained 17 times to the human resources office about his treatment by the Review’s editor Ted Genoways.

According to published news reports, Wauthier’s widow, Fabianne,  attended Zurich’s annual shareholder meeting earlier this month, along with her daughter and her late husband’s mother and brother, and publicly blamed months of internal tension at the company for her husband’s death.

She called the investigation  into Wauthier’s suicide “derelict” and “incomplete.” She held up her late husband’s laptop and said the investigators had not even bothered to review its contents.
“How can anyone, Finma included, so categorically exclude work from all the potential reasons,” she asked.

Why do investigations into workplace bullying so often yield conclusions that raise more questions than they answer?  If Wauthier had not felt his workplace environment was  intolerable, it is not likely he would have written that  it was intolerable  in his suicide note.  Kevin Morrissey’s repeated complaints to HR indicate that he, at least,  felt there was a serious problem.

As yet, there is no DNA test to ascertain when a supervisor’s treatment crosses the line into workplace abuse.  When law firms investigate workplace bullying, they often probe whether the bullying rose to the level of a “hostile workplace” under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, national origin and color.  This theory requires the plaintiff to show that he/she was subjected to  intimidation, ridicule and insult that was “sufficiently severe or pervasive to alter the conditions” of employment.

Federal courts  are themselves  hostile to “hostile workplace” claims, dismissing them at a disproportionately higher rate than other types of cases.  Federal judges typically  dismiss all but the  most egregious and obvious bullying, and require the rest to be tied to an obvious claim of prohibited discrimination under Title VII.

Workplace abuse is usually much more subtle than the schoolyard variety. And it exacts a potentially severe toll on the victim long before a federal judge would find it  violates Title VII’s “hostile workplace” provision (provided  there was a corresponding, valid claim of prohibited  discrimination).  Regardless of the so-called investigations that found the employers faultless, two men are dead and there is little real doubt that their workplace was a factor in their deaths.

Workplace bullying  can wreak severe havoc on the employer too. Wauthier’s suicide undermined investor confidence in Zurich and led to Ackermann’s resignation, leaving the company without a chief executive officer and a chief financial officer.  The University of Virginia found itself mired in a maelstrom of  bad publicity for many months that distracted its  leadership and besmirched its reputation.

Employers must be held accountable for workplace abuse long before a defense-side corporate law firm theorizes, after the fact,  that a federal judge might declare the abuse to be illegal if it was paired with a solid claim of  prohibited  discrimination under Title VII.  The employer controls all facets of the workplace. Only the employer can stop workplace bullying and abuse.

More than Half of Women in Workplace Bullied

More than half of women are bullied at work– often by members of their own sex, according to the largest survey of its kind ever conducted in the United Kingdom.

The gender equality group, Opportunity Now, and PwC, an international  professional services group, commissioned a survey that included interviews with nearly 23,000 women and more than 2,000 men.

The group recently issued a report,  “Project 28-40,”  which urges employers to recognize that “harassment and bullying still occur, despite well-meaning policies. Call it out, deal with perpetuators, and make it simple and straightforward to report.”

Helena Morrissey, chairperson of Opportunity Now, said the key  to improve the workplace for women should be training  excellent managers; this will  achieve “much more than yet another initiative  or programme.”

Fifty-two percent of the women who responded to the survey said they experienced bullying at work within the past three years. The rates were highest for Black British / African /Caribbean women (69%), women with disabilities (71%), bisexual (61%) and lesbian and gay women (55%).

Without being specific, the report states that  the biggest enemy facing women in the office or other workplaces may be other women.  The researchers conducted ten focus groups to gain insight from the survey findings.  “Women often experience bullying by female colleagues and line managers, a point echoed by focus groups participants who thought female bullies felt threatened by potential and ability and so exploited their position or authority to undermine,” said the report.

More than one in four of the women surveyed said they had experienced overbearing supervision or misuse of authority, or were deliberately overloaded with work and subject to constant criticism. One in six of the women experienced exclusion and victimization or were intentionally blocked from promotion or training opportunities.

The researchers conclude that the data shows the extent to which workplaces are “dysfunctional, inefficient and fundamentally unjust” to women.

An additional 12% of women reported experiencing sexual  harassment within the past three years. One in eight said they had been sexually harassed – defined as “unwelcome comments of a sexual nature.”  This includes unwanted physical contact or leering, asking for sexual favors, displaying offensive material such as posters, or sending offensive emails or texts of a sexual nature.

Workplace Bully Targets Suffer Without Law

New Jersey – Kevin M. Costello,  a New Jersey attorney, said he turns away more than 2,000 people a year who are seeking his help to combat workplace bullying.

“These are people who have panic attacks.  Their hair is falling out.  They are throwing up blood … They ask, ‘Why can’t you help me?’ ‘Why isn’t there a law?” said Costello, who spoke at the first conference of the National Workplace Bullying Coalition at Rutgers School of Law earlier this month. “I can’t stand saying ‘no’ to that many people,” said Costello.

Costello is assisting New Jersey State Sen. Linda Greenstein,  assistant majority leader of the NJ Senate,  in crafting a proposed state law to address workplace bullying.

Sen. Greenstein said the bill will help targets who are under “extreme stress. What we’re looking for here is not your everyday not-so-pleasant workplace … We’re looking for very serious situations.”

Costello, who specializes in employment rights, said there are no viable options at present for victims of workplace bullying, especially those who do not fall within a protected class under state or federal anti-discrimination laws (i.e., race, sex, religion, color, national origin).

Critics of workplace bullying legislation often argue that such legislation will add to the cost of doing business in New Jersey, make the state  less competitive and  ultimately would harm the state’s economy.  Costello said the same concerns were raised in the past and were unfounded.

“Why should we do something about child labor? The economy would suffer if we didn’t hire children … Why should we pay women the same amount as men? They have husbands … What do you mean Occupational Safety and Health Act?  I want to make sure the economy doesn’t suffer,” he said. “At the end of the day, this is a bill whose time has come.”

More than 100 attorneys, union officials, policy makers and targets of workplace bullying attended the April 4 conference of the NWBC,  the first national organization formed to address the problem of workplace bullying.

Meanwhile, 27 percent of U.S. workers are either experiencing abusive conduct at work or did so in the past, and 21 percent have witnessed it, according to a 2014 national survey by the Workplace Bullying Institute.  The survey also found that almost three-quarters of employers have done nothing to curb workplace bullying.  An estimated  93 percent of  respondents in a national survey said they support enactment of legislation to protect employees from abusive conduct at work.

* Disclaimer:  I am a co-founder and member of the NWBC.

National Workplace Bullying Coalition Conference

The National Workplace Bullying Coalition (NWBC) will hold its first conference  on April 4 at Rutgers School of Law in Newark, NJ, to explore  solutions to the widespread  problem of workplace abuse in the United States.

The keynote speaker is Catherine Mattice, MA, president of the consulting firm, Civility Partners, of San Diego, CA,  and  author of Back Off! Your Kick-Ass Guide to Ending Bullying at Work.  Her presentation is entitled,  “What is Workplace Bullying? Business & Target Solutions.”   Ms. Mattice has served as an expert in USA Today, MSNBC, Inc. Magazine, NBC, ABC and FOX and has presented programs both nationally and internationally on the problem of workplace bullying.

Other speakers  include NJ State Sen. Linda Greenstein, the Assistant Majority Leader of the New Jersey  State Senate and the sponsor of proposed state legislation modeled after the Healthy Workplace Bill, and Kevin Costello, an attorney who maintains a statewide plaintiff-side law practice focusing on  employment rights, school harassment rights and civil rights.

 There will be a special video welcome from U.S. Rep. Michael Honda of California, the chairperson of the Congressional Anti-Bullying Caucus.

 The half-day program will feature two discussion tracks with a variety of  prominent speakers and experts: Labor & Community Advocates:  Working on the Front Lines and Workers’ Compensation and Alternatives to Legislation.  More information and registration information is available at the NWBC website.  Continuing Legal Education credit is available in New Jersey, New York and Pennsylvania.

The program is co-sponsored by the Rutgers Institute for Professional Education and Rutgers Labor and Employment Law Society.

 The National Workplace Bullying Coalition formed in 2013 to advocate a solution to the problem of workplace bullying in the United States, which lags far behind other industrialized countries in addressing the problem. It is estimated that one in every two or three workers is the target of workplace bullying.

* Disclaimer: I’m a founding member of the NWBC and will be present at the conference. Hope to see you there.

Who is Responsible for NFL Bullying?

MartinNow what?

An independent investigation has concluded that Miami Dolphins offensive lineman Jonathan Martin  was bullied and harassed by team mates, forcing him to leave the team midway through the season.

Ted Wells, an attorney who was retained by the National Football League to investigate Martin’s abrupt departure from the Dolphins last fall, concludes in his report that three starters on the Dolphins offensive line, “engaged in a patterns of harassment directed at not only at Jonathan Martin, but also another young Dolphins offensive lineman and an assistant trainer.”  He named Richie Incognito, John Jerry and Mike Pouncey.

The report states that Martin was “taunted on a persistent basis with sexually explicit remarks about his  sister and his mother and at times ridiculed with racial insults and other offensive comments.”  The report alleges the assistant trainer  was the object of racial slurs and the offensive lineman was subjected to homophobic name-calling and improper physical touching.

Dolphins Exonerated?

The Martin case raises the question of whether  the NFL tolerates abuse on the theory that it dehumanizes and “toughens up” players,  making  them more savage on the playing field.

The Wells report, however, barely acknowledges the role of the Dolphins or the NFL in the matter, even though these organizations appear to have tolerated the locker room’s culture of abuse that is laid bare in the report.

The report concludes:  “As all must surely recognize, the NFL is not an ordinary workplace. Professional football is a rough, contact sport played by men of exceptional size, speed, strength and athleticism. But even the largest, strongest and fleetest person may be driven to despair by bullying, taunting and constant insults. We encourage the creation of new workplace conduct rules and guidelines that will help ensure that players respect each other as professionals and people.”

Martin reportedly did not report the harassment to the NFL because he didn’t want to be a “Judas.”

The report criticizes Dolphins Coach Jim Turner  for discouraging complaints. Although Turner denied it, the report states, “The evidence shows that Turner was aware of the “Judas” concept and that he had discussed its meaning with the linemen, explaining how Judas had betrayed Jesus Christ and defining Judas as a “snitch.”

Organizational Goal?

Many employers  engage in or tolerate strategic bullying to accomplish an organizational goal. For example, some unscrupulous employers seek to downsize without paying unemployment compensation or other benefits.

Surveys show that one in every three or four workers in the United States are bullied and harassed, and many suffer potentially serious emotional and physical damage. Unlike many other industrialized countries, no law exists in the United States requiring employers to insure their workplace is free from what some have called “emotional terrorism.”

Victims of workplace bullying often have little  resource.

Press attention may compel the Dolphins  to discipline Martin’s antagonists on the basis of a general  company anti-harassment policy. Many employers do not make that choice, leaving  victims vulnerable to emotional trauma until they quit like Martin or are fired.

This blog advocates  a national response to workplace bullying that permits any victim of a hostile workplace environment to seek the protections  now available only to protected classes (ie. race, sex) under Title VII of the Civil Rights Act.

Article in Family & Intimate Partner Violence Quarterly

My interest in workplace bullying began about five years ago when I moved across the country with my then 14-year-old son to take a job at a non-profit organization that works in the national arena of intimate partner abuse.

I quickly discovered that my new employer had a bullying management structure, which led to a succession of lives interrupted by trauma, a revolving door of needless turnover, and  a colossal waste of resources that should have gone toward halting domestic violence.

Managers used abusive tactics that were similar to those used by perpetrators  of intimate partner abuse – emotional abuse,coercion, threats, harassment, withholding of information, humiliation,  sabotage, isolation, etc.   Workplace bullying involves the misuse of supervisory privilege to exert improper power and control over the target.

One of the first things I did upon leaving this awful place was to write  an article for The Domestic Violence Report., a national publication devoted  to legal developments  and  research in domestic violence law and prevention.

I posed a question in the article that I don’t think was asked before, at least in a domestic violence circles. What happens after batterers leave their homes and go to work?  Do they suddenly become respectful of others and treat their subordinates and co-workers fairly and with dignity? I argued that abuse is a spectrum that includes workplace bullying, as well as intimate partner, child and elder abuse.

I am pleased to note that an updated version of that article has been reprinted in the most recent issue of the Family & Intimate Partner Violence Quarterly,  edited by Mo Therese Hannah, Ph.D.  The Quarterly is a journal devoted to bringing professionals in the field a practical focus on the best new ideas for preventing, prosecuting, and treating family and intimate partner abuse.

The Domestic Violence Report, a publication of the National Civic Institute, was then edited by Joan Zorza, J.D., a true pioneer in the area of domestic violence.   (My former boss had prohibited me from using citations to Ms. Zorza’s many groundbreaking books and articles because she had the temerity to criticize my boss and the organization in the past.)

In just five years, there’s been an explosion of interest in the topic of workplace bullying and abuse. Most Human Resource officials today are at least aware of the problem and many workplaces have adopted general policies prohibiting bullying. However, there has been virtually no movement toward a real solution to the problem  – a federal law or regulations protecting targets of a hostile workplace environment caused by workplace bullying .   Sign the petition!

Another thing I learned at my former workplace is that bullies are not always just individuals. Employers also can be bullies. The organization for years misclassified administrative employees as “exempt” under the Fair Labor Standards Act.  These mostly young women with children were forced to work endless hours at out-of-state conferences without receiving overtime pay or even compensatory time off. After I left the organization, one of them apparently complained and the organization was forced to repay at least those who still worked there back wages.

Who’s Got Their Head in the Sand?

A federal judge has concluded that the U.S. Court of Appeals for the Seventh Circuit in Chicago did not violate the Code of Judicial Conduct when it ridiculed an attorney in a written opinion.

Circuit Judge Joel M. Falum, who was assigned to decide a complaint filed by the attorney, said the offending opinion  a three judge panel of the appellate did not impede the administration of justice by the court.

The 7th Circuit panel included in its written opinion two photos – one featuring an ostrich with its head in the sand and the other depicting a suited man with his head in the sand.

Judge Falum ruled on Dec. 21 that the photos were evidently meant to depict “complainant’s willful avoidance of dispositive legal authority that was repeatedly brought to complainant’s attention.”

The attorney who was the butt of the panel’s  “humor” complained that the judges violated a requirement that judges be “patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Judge Falum interpreted the question for decision as whether the “photo-enhanced opinion” had a prejudicial effect on the effective and expeditious administration of the business of the court.  “The inclusion of photographs to underscore a decision already reached by the court could not have such an effect,”  he decided, dismissing the complaint.

With all  respect to Judge Falum,  it is highly unlikely that a judicial panel furthers the administration of justice when it humiliates an attorney with which it disagrees in the course of denying the attorney’s requested relief.  It certainly doesn’t foster confidence among victims of workplace abuse when the court demeans the professionals who appear before it with hats in hand.   And, by the way, progress often occurs solely because an attorney challenges dispositive legal authority. (Remember slavery and women’s suffrage?)

Ridicule is a common tactic in workplace bullying scenarios.  Targets often are the subject of treatment that is designed to embarrass or humiliate them.  Such treatment can take a profound emotional and physical toll on the target.

The identity of the parties involved in the dispute were not disclosed – neither the complainant nor the three judges.  The case is In Re. Complaints Against Three Judges, Nos 07-11-90072-90074.

Postscript – It’s a myth that ostriches bury their heads in the sand. They don’t. A male ostrich digs large holes (up to 6 to 8 feet wide and 2-3 feet deep) in the sand to make a nest. Predators cannot see the eggs across the countryside which gives the nest a bit of protection.

Library of Congress v. Free Speech

do-not-enterThe Library of Congress (LOC) has closed its doors to a foundation that was created by current and former employees to assist LOC employees in pursing complaints of racial discrimination.

The issue is interesting because it raises concerns about the right to free speech under the First Amendment of the U.S. Constitution, which would appear to be central to the Library’s mission.

A panel of three judges for the U.S. Court of Appeals for the D.C. Circuit recently upheld a lower court’s dismissal of a lawsuit filed against the LOC by The Cook and Shaw Foundation,  a non-profit group formed by present and past employees to assist LOC employees in filing race discrimination lawsuits.

The Library has a policy in which it recognizes certain employee organizations and gives them meeting space, the right to post materials on bulletin boards, etc.  The Foundation’s request for recognition was denied because “the Foundation’s purpose of helping employees bring and maintain lawsuits against the Library is inconsistent with the Library’s policy that recognized employee organizations be ‘concerned only with welfare, financial assistance, recreational, cultural, or professional activities.’”

The Foundation filed a lawsuit alleging the LOC violated the retaliation clause of Title VII of the Civil Rights Act of 1964.  This clause makes it unlawful for an employer to discriminate against any employees (or applicants for employment) because they have opposed any practice made an unlawful by the law or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

There is a certain logic to the Foundation’s view that helping employees file race discrimination lawsuits relates to their welfare and professional activities.  However, the appeals court ruled that Title VII covers only employees and job applicants and not foundations. The appellate panel said the Foundation failed to identify any particular library employee who was subjected to retaliation in violation of Title VII.

“Perhaps such allegations could have formed the makings of a First Amendment claim by the Foundation. But plaintiffs advanced a Title VII claim,” the panel concludes.

The case is Howard R.l. Cook & Tommy Shaw, et al v. James Billington, #12-5193.

National Coalition to Tackle Workplace Bullying

I am pleased to announce that this blog is a founding member of the National Workplace Bullying Coalition (NWBC), the first organization dedicated to seeking a national solution to the problem of workplace bullying in the United States.

The NWBC proposes a convention, similar to a constitutional convention, to detail the nature of workplace bullying, the negative consequences to both employers and employees, how today’s business leaders address the issue and what remains to be accomplished. The NWBC supports state and local efforts to address workplace bullying but the goal ultimately is to achieve a national  law or regulations that  provides employers with incentive to insure a safe, healthy and bully-free workplace for all employees.

Many developed countries around the world already have legislation in place to address workplace bullying. However, in the vast majority of workers in America workers have no protection unless they can shoehorn their claim under an existing law, such as Title VII of the Civil Rights Act of 1964, which protects individuals on the basis of race, sex, religion & national origin.

The Workplace Bullying Institute has backed state legislation, the proposed Healthy Workplace Bill (HWB), since 2002.  Versions of the HWB have been proposed in more than 20 states but none of the bills have passed, raising questions about the viability of this approach.  Also, it is highly unlikely that  so-called “pro business” states will willingly adopt workplace anti-bullying legislation, leaving employees with no recourse.

Nevada State Senator Richard Segerblom of Las Vegas, NV, has proposed a different solution to the problem of workplace bullying that some consider to be more promising than the HWB approach.  Segerblom has proposed amending Nevada’s employment discrimination law so that  anyone who is a victim of a hostile workplace environment has a legal remedy whether or not they can show illegal discrimination. In other words, he has proposed making the hostile workplace remedy “status blind.”

Many national surveys show that workplace bullying is epidemic in the United States.  CareerBuilder in 2011 found that one in four workers in the United States experience workplace bullying, which has potentially severe mental and physical health impacts.  Most targets of workplace bullying are expelled from the workplace – fired or forced to quit – and many suffer the symptoms of post traumatic stress syndrome for years afterward.

The NWBC is an outgrowth of New Jersey workplace anti-bullying efforts and a loose-knit coalition called  Protect U.S. Workers, created by this blog and documentary filmmaker  Beverly Peterson of Our Bully Pulpit.  The NWBC supports the on-going petition drive by Protect U.S. Workers’  calling upon the Obama administration and the Secretary of Labor to adopt a national approach to workplace bullying.

Membership  in  the new coalition includes The Honorable Sue Pai Yang, who retired in 2012 after serving as  the  first Asian American appointed to the Workers’ Compensation Court in New Jersey;  Jerry Carbo, Esq.  an Associate Professor of Management at the Grove College of Business at Shippensburg University, Pennsylvania, who has researched and  written  about workplace bullying.; Catherine Mattice.  who runs the consulting business, Civility Partners, LLC, which specializes in helping organizations realize positive workplace cultures; and The Honorable Stephen Tuber is a retired Judge of the New Jersey Division of Workers’ Compensation – 1981 – 2009).

 

Bullying in the NFL Workplace

Even Football Players Hurt When Bullied

It may seem rather silly that a participant in a sport that is so brutal that it causes its players to suffer brain damage would throw in the towel because of taunts and insults by teammates.

But the actions of 6’5″, 315-pound Miami Dolphins tackle Jonathan Martin, 25,  are a testament to the damage that workplace bullying can inflict upon targets.

Martin walked off the job recently because he could no longer the endure “abusive environment” that he allegedly has suffered during his one-and-a-half seasons with Miami.  The last straw reportedly came on Monday when he sat down to eat lunch with several other players and they stood up and left when he tried to join them

Dolphins guard Richie Incognito, who is allegedly one of the players who has harassed Martin, was suspended this week for conduct detrimental to his team.  He allegedly sent Martin racist and threatening texts and voicemails.

Research shows that workplace bullying can fell even the mightiest in our society.

Workplace abuse  causes targets to suffer potentially severe mental and  physical illness, including mood and sleep disturbances, upset stomach, panic attacks, headaches etc.  Evidence is accumulating to suggest that stress plays an important role in chronic health problems, including cardiovascular disease, musculoskeletal disorders, and psychological disorders. Bullying targets frequently report experiencing Post Traumatic Stress Syndrome for years after they leave a job in which they were bullied..

There are many well-publicized cases of suicide that are related to workplace bullying, including the recent suicide of the Chief Financial Officer Pierre Wauthier, 53, of the multi-national insurance company, Zurich Insurance Group in Switzerland. He left a note blaming his new boss, who a day after Wauthier’s suicide resigned.

Miami Dolphins Coach Joe Philbin said the NFL is going to conduct a comprehensive and objective review of the workplace environment  and the Dolphins will fully cooperate as an organization.

Individuals who are  experiencing workplace bullying are encouraged to read my book, Transcend Your Boss: Zen and the Difficult Workplace, to gain some coping strategies.  They are also encouraged to sign a petition demanding that the Obama administration address the problem of workplace bullying in our society.