TIME MAG: NEW LAWS TARGET WORKPLACE BULLYING

Wednesday, Jul. 21, 2010


TIME MAGAZINE

Case Study

New Laws Target Workplace Bullying

By Adam Cohen
There are some very important things they don’t tell you on career day. Chief among them is that there is a good chance that at some point during your working adult life you will have an abusive boss — the kind who uses his or her authority to torment subordinates. Bullying bosses scream, often with the goal of humiliating. They write up false evaluations to put good workers’ jobs at risk. Some are serial bullies, targeting one worker and, when he or she is gone, moving on to their next victim.

Bosses may abuse because they have impossibly high standards, are insecure or have not been properly socialized. But some simply enjoy it. Recent brain-scan research has shown that bullies are wired differently. When they see a victim in pain, it triggers parts of their brain associated with pleasure. (See 10 ways your job will change.)

Worker abuse is a widespread problem — in a 2007 Zogby poll, 37% of American adults said they had been bullied at work — and most of it is perfectly legal. Workers who are abused based on their membership in a protected class — race, nationality or religion, among others — can sue under civil rights laws. But the law generally does not protect against plain old viciousness.

That may be about to change. Workers’ rights advocates have been campaigning for years to get states to enact laws against workplace bullying, and in May they scored their biggest victory. The New York state senate passed a bill that would let workers sue for physical, psychological or economic harm due to abusive treatment on the job. If New York’s Healthy Workplace Bill becomes law, workers who can show that they were subjected to hostile conduct — including verbal abuse, threats or work sabotage — could be awarded lost wages, medical expenses, compensation for emotional distress and punitive damages.

Not surprisingly, many employers oppose the bill. They argue that it would lead to frivolous lawsuits and put them at risk for nothing more than running a tight ship and expecting a lot from their workers. But supporters of the law point out that it is crafted to cover only the most offensive and deliberate abuse. The bill requires that wrongful conduct be done with “malice,” and in most cases that it has to be repeated. It also provides affirmative defenses for companies that investigate promptly and address the problem in good faith. (See “When Bullying Goes Criminal.”)

The New York state assembly is expected to take up the bill next year. At least 16 other states are considering similar bills, and some employment-law experts think antibullying legislation may have real momentum now.

Legislatures are not the only ones standing up to bullies. In 2008, the Indiana supreme court struck a blow against workplace bullying when it upheld a $325,000 verdict against a cardiovascular surgeon. A medical technician who operated a heart and lung machine during surgery accused the surgeon of charging at him with clenched fists, screaming and swearing. The formal legal claims were intentional infliction of emotional distress and assault, but the plaintiff argued it as a bullying case, and had an expert on workplace bullying testify at trial.

Ideally, employers should rein in abusive bosses on their own, but that rarely happens. Many bullies are close to powerful people in the organization and carefully target less powerful ones. When John Bolton was nominated to be ambassador to the U.N. by President George W. Bush, a former subordinate told the Senate that Bolton was a “serial abuser” and — in a phrase that has since entered the bullying lexicon — a “kiss-up, kick-down sort of guy.” (See “How Not to Raise a Bully.”)

There are reasons workplace bullying may be getting worse now, including the bad economy. In good times, abused workers can simply walk out on a job if they are being mistreated. But with unemployment at around 9.5%, and five job seekers for every available job, many employees feel they have no choice but to stay put.

Another factor is the decline of organized labor. Unions were once a worker’s front-line defense against an abusive boss. If a supervisor was out of line, the shop steward would talk to him — on behalf of all of the workers. But union membership has fallen from 35% of the workforce in the 1950s to under 13% today, and some unions are less aggressive than they once were. (See what to do if you have a bad boss.)

That leaves litigation. There seems to be a strong constituency for laws allowing workers to sue over workplace abuse. The vote on the Healthy Workplace Bill was bipartisan and not close: New York state senators favored it 45 to 16.

If states enact laws of this kind and lawsuits begin to be filed, juries are far more likely to sympathize with the bullied worker than the bullying boss — and damages awards could be large. There is one easy way for employers to head all of this off: get more serious about rooting out abusive bosses before serious damage is done.

Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board
Read more: http://www.time.com/time/nation/article/0,8599,2005358,00.html#ixzz11RYkRH00

Other Federal Laws

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

Some experts say the Occupational Safety and Health Administration should take the lead on combating workplace bullying.*  There is overwhelming evidence that workplace bullying can lead to serious injury and even death.  In fact, a term has been coined for workers who are driven to suicide as a result of bullying – “bullycide.”  In several other countries, workplace bullying is considered a health and safety issues and is regulated by a federal agency like OSHA. 

The Occupational Safety and Health Administration in May 2011 adopted a safety program for its own workers that includes a workplace anti-bully policy. The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual,  which outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.

OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” However, OSHA has not enforced that provision with respect to workplace bullying.

The stated purpose of the workplace bullying policy adopted by OSHA for its own workers,  contained in the manual’s “Violence in the Workplace” chapter. is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”

Here is the OSHA General Duty Clause, Section 5(a)(1) SEC. 5:

Duties

(a) Each employer —

(2) shall comply with occupational safety and health standards promulgated under this Act.

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees …

*See Susan Harthill. “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.” University of Cincinnati Law Review 78.4 (2010): 1250-1306.

WAGE AND HOUR LAWS

The Fair Labor Standards Act (FLSA) does not address workplace bullying per se but it can be used to combat certain types of abuse. The FLSA establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.  The FLSA is administered by the U.S. Department of Labor Wage and Hour Division  If one aspect of the bullying campaign is failure to pay proper wages or overtime, for example, the FLSA is one potential remedy.

THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act  (NLRA) was passed in 1935 to protect the right of employees in the private sector to create labor unions, engage in collective bargaining and to take part in strikes. The act is also known as the Wagner Act, after its sponsor, Sen. Robert F. Wagner.  The act is regulated by the National Labor Relations Board.

 Specifically, the National Labor Relations Board protects the rights of employees to engage in “protected concerted activity,”  which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.  A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

A few examples of protected concerted activities are:

  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are employed by federal, state, or local governments, agricultural laborers, some close relatives of the employer, domestic servants in a home, independent contractors, employers subject to the Railway Labor Act, etc.

FAMILY AND MEDICAL LEAVE ACT

The Familiy and Medical Leave Act (FMLA offers potential help for employees who are suffering health effects from workplace abuse.  Administered by the Wage and Hour Division of the U.S. Department of Labor, it  entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:

-the birth of a child and to care for the newborn child within one year of birth;

-the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

-to care for the employee’s spouse, child, or parent who has a serious health condition;

a serious health condition that makes the employee unable to perform the essential functions of his or her job;

– any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).

The Healthy Workplace Bill (2010)

This is  the  2010 version of the Healthy Workplace Bill,, drafted by  David C. Yamada, Professor, Suffolk University Law School, and supported by the Workplace Bullying Institute.  This proposal was sharply criticized by international scholars and others as being far less protective of worker rights than legislation in other industrialized countries. The bill has been improved since 2010 but still is problematic.  In any case, after more than a decade, it appears unlikely that a state-by-state approach is a viable option to the problem of workplace bullying. This blog supports a federal national approach, recognizing that workers who may need the most protection live in so-called “pro business” states that  will never adopt a workplace anti-bully protections. Also, workplace bullying is an important health and safety issue for workers and the United States lags behind other industrialized countries in addressing the problem.  Workers need help now! PGB

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THE HEALTHY WORKPLACE BILL

By David C. Yamada, Professor, Suffolk University Law School

Section 1 – Preamble

(a) Findings

The Legislature finds that:

(1) The social and economic well-being of the State is dependent upon healthy and productive employees;

(2) Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone;

(3) Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.

(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;

(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes;

and,

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.

(b) Purpose

It is the purpose of this Chapter:

(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments;  (2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

Section 2 – Definitions

(a) Abusive work environment. An abusive work environment exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.

(1) Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit a employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard.

(2) Malice. Malice is defined as the desire to cause pain, injury, or distress to another.

(b) Tangible harm. Tangible harm is defined as psychological harm or physical harm.

(1) Psychological harm. Psychological harm is the material impairment of a person’s mental health, as established by competent evidence.

(2) Physical harm. Physical harm is the material impairment of a person’s physical health or bodily integrity, as established by competent evidence.

(c) Adverse employment action. An adverse employment action includes, but is not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.

(d) Constructive discharge. A constructive discharge shall be considered a termination, and, therefore, an adverse employment action within the meaning of this Chapter. A constructive discharge exists where: (1) the employee reasonably believed he or she was subjected to abusive conduct; (2) the employee resigned because of that abusive conduct; and, (3) prior to resigning, the  employee brought to the employer’s attention the existence of the abusive conduct and the employer failed to take reasonable steps to correct the situation.

Section 3 – Unlawful Employment Practices

(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to subject an employee to an abusive work environment as defined by this Chapter.

(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate inany manner against an employee who has opposed any unlawful employment practice under this Chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.

Section 4 – Employer Liability and Defense

(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this Chapter, committed by its employee.

(b) Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer only that:

(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.

Section 5 – Employee Liability and Defense

(a) An employee may be individually liable for an unlawful employment practice as defined by this Chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this Chapter at the direction of the employer, under threat of an adverse employment action.

Section 6 – Affirmative Defenses

It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.

Section 7 – Relief

(a) Relief generally. Where a defendant has been found to have committed an unlawful employment practice under this Chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.

(b) Employer liability. Where an employer has been found to have committed an unlawful employment practice under this Chapter that did not culminate in an adverse employment action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named employee defendants.

Section 8 – Procedures

(a) Private right of action. This Chapter shall be enforced solely by a private right of action.

(b) Time limitations. An action commenced under this Chapter must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.

Section 9 – Effect on Other Legal Relationships

The remedies provided for in this Chapter shall be in addition to any remedies provided under any other law, and nothing in this Chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this Chapter and the workers’ compensation law, or compensation under both this Chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers’ compensation shall be reimbursed from compensation paid under this Chapter.

Are you being bullied?

Note: The irony of workplace bullying is that the “victim” may be an excellent employee who is well liked, works hard, and demonstrates creativity and initiative. Bullying is often motivated by the bully’s insecurity, fear and jealousy. You may be targeted because the bully perceives you to be a threat. Employers take note – Good employees  quit or are fired while bullies – who do not act in the company’s s best interests – remain to wreak more havoc.  Also, co-workers who witness bullying are more likely to quit if the employer tolerates the abuse  –  PGB

Are you being bullied?

Here’s a Workplace Aggression Research Questionnaire developed by researchers from the State University of New York in New Paltz and Wayne State University that identifies often subtle bullying behaviors.

Take the quiz to find out if you’re a victim of bullying. Occasional insults don’t count. Bullying occurs when the behavior has occurred consistently during the past six months.

In the past six months have you regularly:

  • Been glared at in a hostile manner?
  • Been excluded from work-related social gatherings?
  • Had others storm out of the work area when you entered?
  • Had others consistently arrive late for meetings that you called?
  • Been given the “silent treatment”?
  • Not been given the praise for which you felt entitled?
  • Been treated in a rude or disrespectful manner?
  • Had others refuse your requests for assistance?
  • Had others fail to deny false rumors about you?
  • Been given little or no feedback about your performance?
  • Had others delay action on matters that were important to you?
  • Been yelled at or shouted at in a hostile manner?
  • Been subjected to negative comments about your intelligence or competence?
  • Had others consistently fail to return your telephone calls or respond to your memos or e-mail?
  • Had your contributions ignored by others?
  • Had someone interfere with your work activities?
  • Been subjected to mean pranks?
  • Been lied to?
  • Had others fail to give you information that you really needed?
  • Been denied a raise or promotion without being given a valid reason?
  • Been subjected to derogatory name calling?
  • Been the target of rumors or gossip?
  • Shown little empathy or sympathy when you were having a tough time?
  • Had co-workers fail to defend your plans or ideas to others?
  • Been given unreasonable workloads or deadlines — more than others?
  • Had others destroy or needlessly take resources that you needed to do your job?
  • Been accused of deliberately making an error?
  • Been subjected to temper tantrums when disagreeing with someone?
  • Been prevented from expressing yourself (for example, interrupted when speaking)?
  • Had attempts made to turn other employees against you?
  • Had someone flaunt his or her status or treat you in a condescending manner?
  • Had someone else take credit for your work or ideas?
  • Been reprimanded or “put down” in front of others?

Steps to take if you are being bullied:

  • In the early stages, consider telling the bully that his/her behavior is not acceptable and firmly ask them to stop. You can ask a supervisor or co-worker  to be with you when you approach the person.  This may not be helpful if the bully is a sociopath who lacks empathy.  It could even backfire, causing an escalation of the bullying.  It’s a judgment call.
  • It is very important to keep a factual journal or diary and record each instance of bullying.  The record should include:

o The date, time and what happened in as much detail as possible.

o The names of witnesses.

o The outcome of the event.

Here’s a possible example of a journal entry:  11/21/10: Bob came down the corridor at approximately 10 a.m.  He grabbed my arm, pulled me into an unattended office and shouted, “Get that ***** project on my desk by lunchtime.” He  then walked out without giving me a chance to reply. I felt humiliated, pressured, disrespected, and emotionally distressed.  John Doe witnessed the incident; I talked to John later that afternoon. John said he was shocked by Bob’s  actions, which he called “violent” and “uncalled for.”

Keep your notes in a safe place – not at the workplace.

  • RETAIN copies of  letters, memos, e-mails, faxes, etc., received from the person.
  • RESPOND to criticisms or allegations in writing, and ask the bully to respond in writing.
  • KEEP all memos and correspondence related to your work if the quality of your work is challenged.
  • It may be necessary to file a complaint. It may be advisable to first consult with an employment lawyer in your community. Most employees work  in an “at will” employment state, which means they  can be fired for any reason except an unlawful reason (such as race or age discrimination).  It is important to know your rights so you have a realistic assessment of your options.
  • If you COMPLAIN,  follow the process outlined in your employee or workplace policy manual. Complain to the individual who is identified as handling harassment complaints.   The courts will interpret this as providing proper notice to your employer of the harassment and bullying.  If your concerns are minimized, proceed to the next level of management.  It is usually advisable to make sure that your complaint clearly  states the problem; this is not the time to sugar coat the issue or to worry about being the squeaky wheel.  If feel you are being bullied because of race discrimination, provide the evidence upon which you base your belief to your employer.  Down the road, the account you provide in your complaint my be important in a retaliation or wrongful termination lawsuit.

Sadly, the Human Resources officer may not be an objective or neutral arbiter.  He or she may perceive their role as acting as an agent for management.  Management  may view your abuser as more valuable to the organization than you.  It is important to provide management with as detailed a record as possible about what is occurring so the employer can see the pattern of abuse.  A single instance may be dismissed as  trivial.   One would hope that management would recognize that  the bully is having a negative impact in the workplace or is creating needless legal liability.  But be aware that most targets of bullying are forced to  quit or are fired. Some experts advise targets to immediately start looking for another job.

BUT DO NOT …

RETALIATE

If you retaliate, you could appear to be a perpetrator.  This may  confuse the manager who is  responding to your complaint.  Also, an estimated 70 percent of bullies are bosses and in these cases the power dynamics do not favor the target .

Abusive bosses  may simply be clueless, insecure and poorly trained.  However, an abusive boss may a  narcissist or sociopath. without empathy. Their actions may be very  deliberate. They could be skilled at manipulating management and co-workers.   To the bully, it’s the equivalent of a chess game.  But  you may feel a range of  strong emotions, including fear and anger.  Bullies often try to manipulate their targets into making an impulsive and unwise move.  As best you can, stay detached and focused. Don’t give the bully more ammunition than he or she already possesses.

* Patricia G. Barnes is an attorney with expertise in both domestic violence and employment law.

Power and Control

One can see similarities between domestic violence and workplace abuse by looking at a tool developed by domestic violence advocates in Duluth, Minnesota, 30 years ago to illustrate the tactics used by domestic violence abusers, the Power and Control Wheel (see below).  By substituting the workplace for the home, one can see the application of this tool in the context of workplace abuse:

  • Instead of male privilege, abusive bosses exert “supervisory” privilege.
  • The abusive boss alone feels entitled to define the boss/employer relationship, whether or not it bears any similarity to the victim’s job description.
  • The abusive boss emotionally abuses the victim, putting him/her down, calling him/her names, etc.
  • The abusive boss uses intimidation, coercion or threats, including unfair threats of demotion or dismissal.
  • The abusive boss uses economic tools to abuse the victim by meting out rewards and punishment as he or she pleases, without regard to merit or actual job performance.
  • When the abuse is pointed out, the abusive boss makes light of it,  minimizes it, or accuses the victim of being overly sensitive.
  • The abusive boss may send out a signal that encourages others to abuse an employee, a phenomenon that has been called “mobbing.”
  • The abusive boss may isolate the employee by making it clear the employee is “unsafe” to be around because he/she is viewed as a pariah by management.

Here’s my primitive adaptation of the Power and Control Wheel for workplace abuse/bullying situations, followed by the original Duluth Model Power and Control Wheel:

 

 

Here’s the original Duluth model:


Definitions: Workplace Abuse & Bullying

There is no universally agreed upon definition for abuse or bullying.  There are many critical differences between workplace conflict and bullying.  The bully is often a supervisor who  abuses his/her authority. A bully boss intentionally, repeatedly and unfairly undermines or destroys the credibility of the target. The bully’s actions are  motivated by self-interest, not the good of the company.  The bully is often threatened by the target, who may be a talented, well liked and hard worker. What follows are authoritative definitions of workplace bullying  from diverse source. All point to the common theme that a bullying supervisor is seeking improper power and control over the target.   – PGB

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INTERNATIONAL

A  general definition for workplace bullying suggested by leading international  scholars on the topic is:

  • Harassing, offending, socially excluding someone or negatively affecting someone’s work tasks.
  • The interaction or process occurs repeatedly and regularly (e.g. weekly) and over a period of time (e.g. about six months).
  • The process escalates until the person confronted ends up in an inferior position and becomes the target of systematic negative social acts.

(Note: In some countries, a single incident of bullying is sufficient to trigger a civil remedy.)

* From  Katherine Lippel, Introduction, 32 COMP. LABOR LAW & POL’Y JOURNAL 2  (2010), citing Ståle Einarsen et al., The Concept of Bullying and Harassment at Work: The European Tradition, in Stale Einarsen, et al, BULLYING AND HARASSMENT IN THE WORKPLACE: DEVELOPMENT IN THEORY, RESEARCH AND PRACTICE 3, 32 (2d ed., forthcoming  2011).

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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The EEOC has an Enforcement Guidance entitled Vicarious Employer Liability for Unlawful Harassment by Supervisors  that discusses employer liability for harassment.

Generally, harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where

1) enduring the offensive conduct becomes a condition of continued employment, or
2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Federal anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

*EEOC

EEOC ENFORCEMENT GUIDANCE

The EEOC has an Enforcement Guidance entitled Vicarious Employer Liability for Unlawful Harassment by Supervisors  that discusses employer liability for harassment.

Generally, harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where

1) enduring the offensive conduct becomes a condition of continued employment, or
2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Federal anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

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Strategic Harassment: Bad Employers

Many lawsuits involve employers that use bullying tactics  strategically to rid the workplace of good employees to avoid a legal obligation.  For example, employers may  bully employees to force them to quit so The employer can  downsize without paying unemployment compensation or avoid a potential worker’s compensation claim. Many employers use bullying strategically to rid the workplace of employees who  demand pay or overtime to which they are entitled or who assert a legal right to organize collectively. One of the most common types of employee lawsuits involves retaliation, where an employer bullies an employee for complaining about illegal discrimination or harassment.

–  Patricia G. Barnes, J.D., author, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

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An April  2011  publication by the Washington State Department of Labor and Industries contains an overview of workplace and corporate bullying. It  provides the following definition:

“Workplace bullying refers to repeated, unreasonable actions of individuals (or a group) directed towards an employee (or a group of employees), which are intended to intimidate, degrade, humiliate, or undermine; or which create a risk to the health or safety of the employee(s).”

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The phenomenon of workplace abuse has been well studied in Europe, where it is called “mobbing.” The concept was introduced in the United States with the publication, Mobbing: Emotional Abuse in the American Workplace. Here is how the authors define mobbing:

  1. Assaults on dignity, integrity, credibility, and competence;
  2. Negative, humiliating, intimidating, abusive, malevolent, and controlling communication;
  3. Committed directly or indirectly in subtle or obvious ways;
  4. Perpetrated by  ≥1 staff member;
  5. Occurring in a continual, multiple, and systematic fashion over time;
  6. Portraying the victim as being at fault;
  7. Engineered to discredit, confuse, intimidate, isolate, and force the person into submission;
  8. Committed with the intent to force the person out;
  9. Representing the removal as the victim’s choice;
  10. Unrecognized, misinterpreted, ignored, tolerated, encouraged, or even instigated by management.

*  Source: Adapted  from Davenport N, Schwartz RD, Elliott GP. Mobbing: Emotional Abuse in the American Workplace. Ames, IA: Civil Society Publishing; 1999:41.

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GAINING INSIGHT FROM DOMESTIC VIOLENCE …

Although abuse in our society is silo-ed, in reality, abuse exists on a continuum. It starts in childhood and progresses until the problem behavior is addressed by the abuser or there is an intervention by an outside party.

Here is a definition of abuse used by the federal government in the context of domestic violence. Many aspects of this definition could apply to abuse in the workplace.

The U.S. Dept. of Justice Office of Violence Against Women says domestic violence can be defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.

Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.

Some specific categories of domestic violence:

Physical Abuse: Hitting, slapping, shoving, grabbing, pinching, biting, hair-pulling, biting, etc. Physical abuse also includes denying a partner medical care or forcing alcohol and/or drug use.

Sexual Abuse: Coercing or attempting to coerce any sexual contact or behavior without consent. Sexual abuse includes, but is certainly not limited to marital rape, attacks on sexual parts of the body, forcing sex after physical violence has occurred, or treating one in a sexually demeaning manner.

Emotional Abuse: Undermining an individual’s sense of self-worth and/or self-esteem. This may include, but is not limited to constant criticism, diminishing one’s abilities, name-calling, or damaging one’s relationship with his or her children.

Economic Abuse: Making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one’s access to money, or forbidding one’s attendance at school or employment.

Psychological Abuse: Causing fear by intimidation; threatening physical harm to self, partner, children, or partner’s family or friends; destruction of pets and property; and forcing isolation from family, friends, or school and/or work.

Workplace abuse usually does not include overt physical  behaviors – though it certainly can. For example, sexual harassment is a form of workplace abuse that can involve both men and women.

However, more often, workplace bullying involves emotional and economic abuse.

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In April  2010 the Massachusetts’ state legislature unanimously passed what is called the toughest anti-bullying law in the nation with respect to schools. The law was precipitated by two cases of  Massachusetts youths committing suicide after allegedly being bullied. The legislation requires school employees to report all instances of bullying and require principals to investigate them. PGB

ACCORDING TO THE MASSACHUSETTS‘ 2010  SCHOOL ANTI-BULLYING LAW:

“Bullying”, the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that:

(i)  causes physical or emotional harm to the victim or damage to the victim’s property;

(ii) places the victim in reasonable fear of harm to himself or of damage to his property;

(iii) creates a hostile environment at school for the victim;

(iv) infringes on the rights of the victim at school; or

(v) materially and substantially disrupts the education process or the orderly operation of a  school. For the purposes of this section, bullying shall include cyberbullying.

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THE INTERNATIONAL LABOUR ORGANIZATION (ILO) SAYS …

Workplace bullying is one of the fastest growing complaints of workplace violence. It constitutes offensive behaviour through vindictive, cruel, malicious or humiliating attempts to undermine an individual or groups of employees through such activities as:

  • Making life difficult for those who have the potential to do the bully’s job better than the bully;
  • Shouting at staff to get things done;
  • Insisting that the bully’s way of doing things is the only right way;
  • Refusing to delegate because the bully feels no one else can be trusted;
  • Punishing others by constant criticism or by removing their responsibilities for being too competent.

*ILO

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Bullying behaviors may include:

  • making life difficult for those who have the potential to do the bully’s job better than the bully;
  • punishing others for being too competent by constant criticism or by removing their responsibilities, often giving them trivial tasks to do instead;
  • refusing to delegate because bullies feel they can’t trust anyone else;
  • shouting at staff to get things done;
  • persistently picking on people in front of others or in private;
  • insisting that a way of doing things is always right;
  • keeping individuals in their place by blocking their promotion;
  • if someone challenges a bully’s authority, overloading them with work and reducing the deadlines, hoping that they will fail at what they do; and
  • feeling envious of another’s professional or social ability, so setting out to make them appear incompetent, or make their lives miserable, in the hope of getting them dismissed or making them resign.

*Duncan Chappell and Vittorio Di Martino, VIOLENCE AT WORK, International Labour Organization (2006)

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The Workplace Bullying Institute defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

  •  Verbal abuse.
  • Offensive conduct/behaviors that are threatening, humiliating, or intimidating.
  • Work interference, i.e. sabotage, that prevents work from being done.

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PSYCHOLOGICAL TERROR

“Workplace bullying is traumatic because it is unexpected and always perceived as undeserved and unjustified (Keashly and Neuman, 2005). Abuse is not a requisite aspect of work duties, is unrelated to job demands, and is, consequently, perceived as unwarranted. The shock of being singled out for repeated abuse can be as traumatic as divorce or a loved one’s death (Mikkelsen and Einarsen, 2002) and can evoke levels of anxiety and psychological pain necessitating therapeutic help (Randall, 2001). What makes this experience especially corrosive is that it is ongoing, frequent, enduring, and escalatory—typically worsening over time. The trauma is also a function of the intensive fear and dread bullying creates. In fact, bullying and mobbing are often called ‘psychological terror’ (Leymann, 1996: 375).”

– Lutgen-Sandvik, P. (2006). Take this job and …: Quitting and other forms of resistance to workplace bullying. Communication Monographs, 73, 406-433.