Wisconsin Supreme Court Judge Out of Order?

Places Chokehold on Fellow Justice

Wisconsin Supreme Court Justice Ann Walsh Bradley has accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office on June 13, 2011,  a day before the Court’s decision upholding a bill to curtail the collective bargaining rights of public employees.

According to the Milwaukee Journal Sentinel, Bradley said:  “The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold.”

Perhaps the most interesting thing about the story is not the alleged assault but the fact that an incident pf workplace violence was shrouded in secrecy for almost two weeks, until  Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism published a story based upon anonymous sources.  Why was it necessary for  anonymous sources to disclose that one of Wisconsin’s high court judges had allegedly assaulted a fellow justice?  Where is the transparency?

The Wisconsin Center for Investigative Journalism  on June 25, 2011 quoted “at least three knowledgeable sources” who declined to be named but said, “other sources have offered a conflicting account.  Justice Prosser has declared that the claims, once investigated, will be ‘proven false.’”

There are competing versions of the incident. The Journal also quoted   a source who said Prosser made incidental contact with Bradley’s neck as he put up his hands in a defensive posture as Bradley rushed toward him “with fists up.”

The Wisconsin Judicial Commission, which  is charged with investigating allegations of misconduct involving judges, was informed of the alleged assault. However, a spokesman for the Commission said he could neither confirm nor deny whether the commission, which was informed of the incident, will investigate.

Judge Prosser’s judicial temperament was called into question earlier this year:

 In March, the Milwaukee Journal Sentinel reported that, in a disagreement over a case last year, Justice Prosser, 68, had called Chief Justice Shirley Abrahamson a “total bitch” and threatened to “destroy” her. Prosser, the paper reported, confirmed making the remarks, saying he “probably overreacted” while accusing Justices Abrahamson and Bradley of being “masters at deliberately goading people into perhaps incautious statements.”

Complacent Employer Hit With $95 Million Award

Note:  On July 7, 2011, U.S. District Court Judge J.  Michael Reagan granted Aarons’ motion to reduce the compensatory damages award for Alford’s Title VII sexual harassment claim pursuant to the statutory cap from $4 million  to $300,000.00 and the Court vacated the $50 million punitive damages award. Title VII authorizes the award of both compensatory and punitive damages but provides a cap on the total amount of damages recoverable based on employer size. See 42 U.S.C. § 1981a.   Reagan states in his opinion: “The Court notes that this remittitur results solely from the statutory cap and is not an expression of the Court’s opinion or the reasonableness of the jury verdict as to Count XII.”

East St. Louis, IL –A federal jury has awarded $95 million to a young woman who alleged she was the victim of a campaign of sexual  harassment and assault by a supervisor at  one of 1,800 stores operated by the rent-to-own company, The Aaron’s Inc.

The St. Louis Post Dispatch reported on June 10, 2011 that the jury in U.S. District Court in the Southern District of Illinois awarded the woman, Ashley Alford,  $95 million in compensation, including $15 million in compensatory damages and $80 million in punitive damages.  A cap on damages in federal sexual harassment cases will reduce the award to about $41.6 million.  A spokesperson for Aaron’s said the award does not accurately reflect the evidence in the case and Aaron’s plans to appeal.

The Aaron chain’s entire profit in 2010 was $118 million.

Alford’s attorney, David S. Ratner, said the award could be an all-time record for an individual plaintiff in  sexual harassment case.

Alford, who is in her mid-20s, began work as a customer service representative at the store in 2005. She said her supervisor, the store’s then-general manager, Richard Moore, engaged in a year-long escalating campaign of sexual harassment, beginning with crude sexual jokes and  ending with assault.

In the fall of 2006, Alford alleged, Moore sneaked up behind her as she was sitting on the floor of the stockroom and hit her on the head with his penis. In another incident,  Moore  allegedly threw Alford to the ground, lifted her shirt and masturbated over her as he held her down. Moore  is awaiting trial on a criminal charge related to the accusations in St. Clair County Circuit Court.

It appears that Aaron’s was complacent. Alford called a company harassment hotline in May 2006, but an investigator never contacted her.  At some point after the call, the suit claims, she was approached by Moore’s supervisor, who confronted her in front of Moore about his alleged harassment and warned Moore to “watch his back” because of the complaint.

In their verdict, jurors found that Moore had assaulted and battered Alford, and found Aaron’s liable for “negligent supervision,” ‘sexual harassment” and “intentional infliction of emotional distress.”

In a press release, Chad Strickland, Vice President of Associate Resources for Aaron’s, Inc., said Moore’s alleged acts “are not only completely inconsistent with everything our Company believes in and stands for, but are also far outside the scope of his employment and were never condoned by the Company.”

According to its web site,  “Over 55 million households across North America know and trust the Aaron’s name. Aaron’s, Inc. New York Stock Exchange ticker symbols are AAN and AANA.”

Aaron’s stock was down .04 percent on June 13, 2011.

 

OSHA Adopts Workplace Anti-Bullying Policy

 

The Occupational Safety and Health Administration has 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 was released on May 23, 2011. The manual 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, despite overwhelming research that workplace bullying may cause severe damages to a target’s mental and physical health.

The stated purpose of the workplace bullying policy, 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.”

The manual defines “intimidating behavior” as:

“Threats or other conduct that in any way create a hostile environment, impair Agency operations, or frighten, alarm or inhibit others. Verbal intimidation may include making false statements that are malicious, disparaging, derogatory, disrespectful, abusive, or rude.”

 And, “workplace violence” is defined as:

“An action, whether verbal, written, or physical aggression, that is intended to control, cause, or is capable of causing injury to oneself or other, emotional harm, or damage to property.”.

 All OSHA employees are required to “treat all other employees, as well as customers, with dignity and respect. Management will provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations. No employee will engage in threats, violent outbursts, intimidations, bullying harassment, or other abusive or disruptive behaviors.”

The manual states that the Assistant Regional Administrator/Director for Administrative Programs or equivalent unit will:

1. Disseminate the workplace violence policies and procedures to all employees;

2. Provide annual training on this policy and U.S. Department of Labor workplace violence program for responsible OSHA Manager(s); and

3. Conduct an investigation and complete a Workplace Violence Incident Report for all incidents reported. The report will be submitted to the Regional Administrator within 24 hours of completion.

Congress created the OSHA  to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA is part of the United States Department of Labor.

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.