Standing Up To Rush Limbaugh

Georgetown law student Sandra Fluke told the House Democratic Steering and Policy Committee that contraception is a women’s health issue.

As a result, she was subjected to a personal venomous assault by a bully, conservative talk show host  Rush Limbaugh, who used his national radio platform to call Ms. Fluke a “slut” and a “prostitute.”

What happened after Limbaugh’s verbal assault is fascinating in the context of bullying.

When bystanders do nothing, a bully prevails and becomes stronger. And it is well known that bystanders often do nothing.

In this case, many bystanders chose to do something – they demanded that advertisers cease  supporting Limbaugh’s radio show. The result is that Limbaugh has lost dozens of sponsors. And he was forced to apologize – though, as Ms. Fluke notes, his apology is not very meaningful under these circumstances.

The Fluke episode lends powerful credence to the theory behind a new school anti-bullying program developed in Finland in 2007,  KiVa,  which is based upon the premise that bullies are rewarded by earning higher social status because of their bullying.  The program encourages bystanders to show that they are against bullying and to support the target.

Many school anti-bully programs show marginal results but a large scale 2011 study showed that KiVa halved the risk of bullying others and of being victimized in just one school year. Substantial decreases also emerged for other antisocial behaviors, such as vandalism, theft, and truancy, in addition to an increase in general satisfaction with school life.

Science Daily reports that an interdisciplinary team of researchers at the University of Kansas (KU) plan to bring the KiVa program to American schools. Starting as early as the 2012-13 school year, a pilot program could kick off in selected classrooms in Lawrence, Kan. If shown to be successful there, the model could expand nationally..

Sandra Fluke was right, by the way. Not only do women use contraception to prevent unwanted pregnacy, but they also use it to treat diverse medical conditions, including dysmenorrhea, endometriosis, metrorrhagia, and polycystic ovarian syndrome.

Feds Anti-Bully Plan

Minnesota’s largest school district will take wide-ranging steps to protect LGBT students from bullying and harassment under the terms of a settlement reached in a lawsuit filed by the U.S. Dept. of  Justice (DOJ) and the U.S. Dept. of Education’s Office of Civil Rights (OCR).

The Anoka-Hennepin School Board approved the proposed settlement on Monday but it must still be approved by U.S. District Judge Joan N. Ericksen to take effect. The federal agencies will monitor the district’s compliance with the agreement until 2017.

The settlement is  significant with respect to the problem of workplace bullying for two reasons.

It sheds light on what the DOJ and the OCR deem to be important steps to address the general problem of harassment.

And the feds based their lawsuit on alleged violations of laws that potentially could apply to targets of workplace bullying — Discrimination on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution; Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c–2000c-9 (Title IV), and; Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (Title IX).

There are major differences between how the law treats students and adults but the Minnesota school settlement could be interpreted as evidence that society no longer condones bullying and harassment on the basis of sex or perceived sexual orientation. If that is the case, harassment of this type should not be acceptable in either schools or the workplace.

Authorities began investigating the Anoka-Hennepin School District in 2010 after receiving a complaint that it had failed to adequately address peer-on-peer harassment on the basis of sex and sexual orientation. The Southern Poverty Law Center and the National Center for Lesbian Rights subsequently filed a lawsuit on behalf of six students, who will received $270,000 under the settlement.

The students said they faced a constant torrent of anti-gay slurs due to their actual or perceived sexual orientation. They also said they were choked, shoved, urinated on and even stabbed with a pencil.

The students said an 18-year-old “gag rule” adopted by the district hampered the efforts of teachers to end the harassment and stigmatized gay and lesbian students.The policy required staff to stay neutral on LGBT topics in school. The policywas replaced in February with a new policy that requires district staff to affirm the dignity and self-worth of all students, including LGBT students.

Among other things, the settlement requires the District to:

  • Retain an Equity Consultant to provide a systemic review and recommend any needed revisions to district policies related to harassment, as well as district procedures relating to the investigation and response to incidents of harassment, parental notification, and tracking of harassment incidents.
  • Hire a Title IX/Equity Coordinator to implement district policies and procedures, monitor complaints, ensure that district administrators and staff adhere to sex and sexual orientation-based discrimination laws, and identify trends and common areas of concern.
  • Work with the Equity Consultant and Title IX Coordinator/Equity Coordinator to develop improved and effective trainings on harassment for all students and employees who interact with students.
  • Ensure that a counselor or other qualified mental health professional to be available during school hours for students in need.
  • Hire a mental health consultant to review and access current practices in the district relating to assisting students who are subject to harassment.
  • Provide additional specificity to further strengthen the District’s annual anti-bullying survey.
  • Expand the district’s harassment-prevention task force formed the summer of 2011 to advise the district regarding how to best foster a positive educational climate for all students.
  • Work with the Equity Consultant to further identify hot spots in district schools where harassment is or becomes problematic, including outdoor locations and on school buses, and work with the Equity Consultant to develop actions that better align with a safe, welcoming school environment.
  • Require District personnel  to investigate, address, and respond appropriately to every harassment incident, whether reported (verbally or in writing) by the harassed student, a witness, a parent, or any other individual; observed by any District employee; or brought to the District’s attention by any other means;
  • Provide contact information, including the physical address, phone number and email address, for the District’s Title IX Coordinator and Equity Coordinator.
  • Develop procedures for parental notifications that are sensitive to a student’s right of privacy regarding his or her real or perceived orientation or gender identity.
  • Provide a link on the school web site to an incident reporting form and allow direct electronic submission of complaints.

Harassment was defined in the federal lawsuit as ” … the use of derogatory language, intimidation, and threats; unwanted physical contact and/or physical violence, or the use of derogatory language and images in graffiti, pictures or drawings, notes, e-mails, electronic postings and/or phone messages related to a person’s membership in a protected class.”

The lawsuits will be dismissed with the district denying fault or wrongdoing.

Federal investigators reviewed more than 7,000 district documents and included interviews with more than 60 individuals, including current and former students, parents, district staff, teachers and administrators.

KiVa: Teaching Bystanders to Care

One of the most hurtful things about workplace bullying is the isolation felt by the target when co-workers run for cover or, worse, support the bully.

A new school anti-bullying program developed in Finland in 2007 is proving to be surprisingly successful in eliminating bullying by focusing upon the bystanders who witness the bullying but do nothing.

The program  KiVa,  is based upon the premise that bullies are rewarded by earning higher social status because of their bullying.  The program encourages bystanders to show that they are against bullying and to support the target.  KiVA empowers students to defend targets through skill-building and education, including 20 hours of activities such as discussion, group work, films, role-playing, and computer exercises.

Many school anti-bully programs show marginal results but a large scale 2011 study showed that KiVa halved the risk of bullying others and of being victimized in just one school year.  Substantial decreases also emerged for other antisocial behaviors, such as vandalism, theft, and truancy, in addition to an increase in general satisfaction with school life.

Science Daily reports that an interdisciplinary team of researchers at the University of Kansas (KU) plan to bring the KiVa program to American schools. Starting as early as the 2012-13 school year, a pilot program could kick off in selected classrooms in Lawrence, Kan. If shown to be successful there, the model could expand nationally.

KiVa was developed at the University of Turku, Finland, with funding from Finlands’ Ministry of Education and Culture. In Finland, 90 % of all comprehensive schools are implementing the KiVa program.  The KiVa program won the European Crime Prevention Award in 2009.

KiVa  takes a holistic approach to the bullying problem, including a rigorous classroom curriculum, videos, posters, a computer game and role-play exercises that are designed to make schools inhospitable to bullying.

When bullying episodes occur, a small team of trained employees addresses the incident with the victim and bully or bullies to ensure bullying stops.  Peers of the victim are challenged to provide support for the victimized classmate.

“It changes the rewards structure,” said Patricia Hawley, KU associate professor of developmental psychology.. “At the end of the day, the goals of the bully are like yours and mine — they want friendship and status. They have human goals, not pathological ones. With KiVa, bystanders are set up to win by intervening, and their status can go up. As a bystander, I can achieve goals of friendship and status by standing up to a bully.”

The implications of the KiVa model for the workforce are obvious. What if employers approached the problem of bullying holistically, with the goal of insuring that bullying behavior is not rewarded?  Teams of employees could be trained to address individual complaints, and co-workers could be  encouraged to show empathy and support to targets.  Who knows? Maybe employers, like schools, would find their efforts rewarded by improved morale and substantial decreases in other antisocial behaviors, such as vandalism, theft, and truancy. Wouldn’t that alone be worth the effort?

KiVa is a Finnish acronym for Kiusaamista Vastaan, “against bullying”)

The Value of a Good Name

Research shows that workplace bullying costs American employers billions each year in absenteeism, higher health care costs, lower productivity, and unnecessary litigation.

However, the cost may be even higher in terms of reputation, especially in this age of social media.

According to the Ethics Resource Center  (ERC), a non-profit center that researches high ethical standards in public and private institutions. a good name matters for many reasons, some measurable and some not. In a new report entitled, Building a Corporate Reputation of Integrity, the ERC says:

  •  Consumers prefer to deal with a company they trust.
  • Employees prefer to work at a company they are proud of.
  •  Increasingly, investors believe trustworthy, ethical companies are a safer place to put their money.

In workplace bullying situations, lawsuits generate bad publicity that can tarnish an organization’s reputation, and targets of bullying and witnesses to bullying often bad mouth their employers after they leave.  Even one disgruntled employee who shares his gripes on social media can potentially inflict enormous damage to a firm’s reputation.

A  2010 survey by Deloitte found that nearly half of workers who plan to seek out a new job say they have been motivated by a loss of trust in their employer. Some 46 percent also complain about a lack of transparency in internal communications and four of ten say they have been treated unethically.

According to the ERC, corporate executives surveyed by Weber-Shandwick, a global public relations firm,  estimated that 63 percent of their companies’ market value is due to reputation. A good reputation may be even more important for consumer product firms, where consumers cast verdicts on reputation with their pocketbooks, withholding business from companies they believe are ethically deficient and rewarding those with good reputation. Research by Edelman, another global PR firm,  found that nearly three-quarters of consumers say they will actively avoid doing business with a company they don’t trust, while 85 percent will go out of their way to buy from a company they trust.

The ERC says ethical leadership is a key to building and sustaining a good reputation:  “ERC research consistently shows employees are more likely to act with integrity when an organization’s leaders are honestly and visibly committed to ethical performance.”

New York’s Healthy Workplace Bill (2010)

This bill was approved by the New York State Senate on May 12, 2010 by a vote of 45 to 16, with one abstention. It failed to gain passage in the House.  See the general blog entry about the Healthy Workplace Bill (HWB) to read an analysis of the problems with the HWB.  It’s needs work! PGB

S1823B: Establishes a civil cause of action for employees who are subjected to an abusive work environment

S1823B Summary Establishes a civil cause of action for employees who are subjected to an abusive work environment.

TITLE OF BILL : An act to amend the labor law, in relation to establishing a private cause of action for an abusive work environment

PURPOSE : To establish a civil cause of action for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS : Clearly states the definitions of abusive conduct; abusive work environment; conduct; constructive discharge; employee; employer; malice; negative employment decision; physical harm; and psychological harm.

Section 3 defines Unlawful Employment Practice

Section 4 defines Employer Liability

Section 5 defines Defenses

Section 6 defines Retaliation

Section 7 defines Relief generally Employer liability

Section 8 defines Procedures Private right of action Time limitations

Section 9 defines Effect on Collective Bargaining Agreements

Section 10 defines Effect on other state laws other state laws Worker’s compensation and election remedies

JUSTIFICATION : The social and economic well-being of the state is dependent upon healthy and productive employees. Surveys and studies have documented that between 16 to 21 percent of employees directly experience health-endangering workplace bullying, abuse and harassment, and that this behavior is four times more prevalent than sexual harassment alone. Surveys and studies have also documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, stress related gastrointestinal disorders, hypertension, pathophysiologic changes that increase the risk of cardiovascular disease and other such effects. This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.
S1823B Text

S T A T E O F N E W Y O R K
1823–B
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:

Section 1. The labor law is amended by adding a new article 20-D to read as follows:
ARTICLE 20-D ABUSIVE WORK ENVIRONMENT SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 761. DEFINITIONS. 762. ABUSIVE WORK ENVIRONMENT. 763. EMPLOYER LIABILITY. 764. DEFENSES. 765. RETALIATION. 766. REMEDIES. 767. ENFORCEMENT. 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 769. EFFECT OF OTHER LAWS.

S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00743-04-0
S. 1823–B 2 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR DISEASES. FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND SIGNIFICANT INCREASES IN MEDICAL AND WORKERS’ COMPENSATION CLAIMS. THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT UTES. EXISTING WORKERS’ COMPENSATION PROVISIONS AND COMMON LAW TORT LAW ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO MISTREATMENT OF EMPLOYEES AT WORK.

S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. “ABUSIVE CONDUCT” MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO THE EMPLOYER’S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE’S WORK PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 2. “ABUSIVE WORK ENVIRONMENT” MEANS A WORKPLACE IN WHICH AN EMPLOYEE IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS TO ELIMINATE THE ABUSIVE CONDUCT. 3. “CONDUCT” MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS TO ACT. 4. “CONSTRUCTIVE DISCHARGE” MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 5. “MALICE” MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR S. 1823–B 3 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT’S KNOWN PSYCHOLOG ICAL OR PHYSICAL VULNERABILITY. 6. “NEGATIVE EMPLOYMENT DECISION” MEANS A TERMINATION, CONSTRUCTIVE DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR DISCIPLINARY ACTION. 7. “PHYSICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S PHYS ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 8. “PSYCHOLOGICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.

S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.

S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS CONTROL.

S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON THE PLAINTIFF’S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY UPON THE EMPLOYER’S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, ILLEGAL OR UNETHICAL ACTIVITY.

S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS CHAPTER.

S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE PLAINTIFF’S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES. 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT DECISION, SUCH EMPLOYER’S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.

S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE ALLEGATION OF ABUSIVE WORK ENVIRONMENT. S. 1823–B 4

S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN EMPLOYEE’S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY THE PROVISIONS OF THIS ARTICLE.

S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY COMPENSATION AVAILABLE PURSUANT TO THE WORKERS’ COMPENSATION LAW; PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS’ COMPEN SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS ARTICLE FOR THE SAME SUCH CONDITIONS.

S 2. This act shall take effect immediately, and shall apply to abusive conduct occurring on or after such date.

TOP 10 REASONS FOR BEING TARGETED

1. I remained independent, refused to be controlled. (70%)

2. My competence and reputation were threatening. (67%)

3. The Bully’s personality. (59%)

4. My being liked by co-workers and customers (47%)

5. In retaliation for my reporting unethical or illegal conduct, whistleblowing. (38%)

6. I was focused solely on work and ignored the politics. 36%)

7. Bully had personal problems. (35%)

8. I am nonconfrontative and easily overrun by others. (33%)

9. I was at a time of personal medical or life vulnerability or changes. (30%)

10. I could not afford to leave the job and the bully knew it. (30%)

* From Workplace Bullying Institute (2003)(non-scientific survey of 1,000 volunteer respondents who visited WBI’s web site).

SAMPLE BULLYING POLICY

Workplace Bully Policy

Ideally an employer would build upon this template, adding important  details, such as which company representative is designated to receive employee complaints and where an employee can go to find  moreinformation. 

Company X considers workplace bullying unacceptable and will not tolerate it in any circumstances.

Workplace bullying is behaviour that harms, intimidates, offends, degrades or humiliates an employee, possibly in front of other employees, clients or customers. Workplace bullying may cause the loss of trained and talented employees, reduce productivity and morale and create legal risks.

Company X believes all employees should be able to work in an environment free of bullying. Managers and supervisors must ensure employees are not bullied.

Company X has grievance and investigation procedures to deal with workplace bullying. Any reports of workplace bullying will be treated seriously and investigated promptly, confidentially and impartially.

Company X encourages all employees to report workplace bullying.

Managers and supervisors must ensure employees who make complaints, or witnesses, are not victimized.

Disciplinary action will be taken against anyone who bullies a co-employee. Discipline may involve a warning, transfer, counselling, demotion or dismissal, depending on the circumstances.

The contact person for bullying at this workplace is:

Name:______________________________________________

Phone Number: _______________________________________

* Adapted by the Ontario Safety Association for Community & Healthcare from the Commission of Occupational Safety and Health, Government of Western Australia. (Toronto, Canada, 2009)

For Employers

Bullying is a costly management problem.  Yet, all too often, instead of being the first line of defense, the Human Resources Department reinforces the bullying and further undermines the victim. The result is costly turnover, poor morale, and expensive litigation.  Stopping bullying makes economic sense for employers.  Does your company have an anti-bullying policy?  Is it strictly enforced, even when the bully is a highly valued employee?  Are employees encouraged to report bullying and do you insure they are protected from retaliation?   If not, you are inviting needless expense and risk.  – PGB

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“Bully bosses are the bane of management. They are the ones who take credit for their subordinates’ ideas, engage in abusive behavior, humiliate employees in public, talk behind people’s backs, and send others to do their dirty work. Bullies often make the numbers; that’s why it’s hard to get rid of them. When bullies resist all help, they must be removed from the organization. FROM:  Article by John Baldoni, Harvard Management Update; Sept. 2005, Vol. 10 Issue 9, p1-3, 3p.

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THE TAB FOR EMPLOYERS

It is astonishing that American employers tolerate workplace bullying.  Never-mind the devastation that bullying wreaks on the target, bullying wreaks havoc on the company’s bottom line. Bullying results in higher health costs, needless turnover, lower morale and motivation, lost work hours, absenteeism, etc. etc. etc.

Consider:

  • According to Christine Pearson at UNC-Chapel Hill and Christine Porath of USC’s Marshall School of Business (The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It (2009))  targets of bullying react in the following ways:

-48% decreased their work effort,

-47% decreased their time at work,

-38% decreased their work quality,

-66% said their performance declined,

-80% lost work time worrying about the incident,

-63% lost time avoiding the offender

  • Bullying causes needless turnover.

According to the Level Playing Field Institute, more than two million managers and professionals flee their jobs every year as a result of workplace unfairness, including bullying. The cost of replacing just one $8-per-hour employee can range from $3,500 to $25,000, depending on the industry. The  exodus of two million workers costs businesses $64 billion.

Research shows that bullying also contributes to turnover among witnesses of bullying, who suffer emotional distress that is almost as great as that experienced by the victims of bullying. Furthermore, more than a quarter of employees who leaves because of unfairness do not recommend the employer to potential employees, and many do not recommend the company’s products and services to others.

  • Bullying results in costly litigation.

Even if the employer wins, it can cost the employer tens of thousands of dollars to defend the lawsuit.

The employer doesn’t always win. In Indiana, a medical technician was awarded $325,000 after successfully suing a surgeon who bullied him in an operating room for Intentional Infliction of Emotional Distress and assault.

A lawsuit, and attendant publicity, can be harmful to a business in terms of public perception and the ability to attract quality employees.

____________________________________

Five Tips for Businesses on Handling Workplace Bullying

(Excerpted from Teresa A. Daniel,  Stop Bullying at Work (ISBN 9781586441357, September 2009, $17.95)

To properly approach the bully and create individual change:

1.  Confront and monitor existing bullies.

– Talking directly to the bully about the consequences of his or her behavior;

– Training bullies about how to treat others fairly in the workplace; and

– Implementing performance evaluation and appraisal mechanism to discourage bullying behaviors, such as a 360-degree performance feedback system.”

2. Obtain a senior management commitment to a bully-free environment. Organizations need to demonstrate in visible and continuous ways that senior management is committed to addressing and eradicating the bullying phenomenon. Because of the power differential that exists in the relationship between the bully and the targeted employee, the reluctance to report bullying appears to be linked to the belief that nothing will be done and also to the fear of retaliation if something is done.

3.   Develop an anti-bullying policy. “Any policy that you develop should be customized to fit your organization’s specific culture, values, and needs. An anti-bullying policy will generally address the following types of issues: your company’s commitment to a culture of mutual respect and zero-tolerance of bullying, clear definitions of bullying, managerial responsibilities, complaint procedures, any support or counseling offered to the target, assurances that all complaints are taken seriously and will be treated confidentially, a ‘no retaliation’ provision, and who to contact to get further information.”

4.  Create monitoring, investigation, and complaint systems, disciplinary procedures, and follow-up measures. “Whether or not you elect to develop and implement an anti-bullying policy, a specific internal group or department needs to be identified as being responsible for receiving complaints and educating your employees. An investigation is a necessary response to a bullying complaint. All complaint resolution systems must include an effective disciplinary procedure that spells out the consequences for failure to abide by the company’s policy, including progressive discipline.”

5.  Train employees about conduct expectations. “Periodic training of employees must be conducted to ensure a culture of respect and accountability, and also that all employees understand the company’s expectations about their workplace conduct – what is and is not acceptable – and the consequences for failing to observe these requirements.”

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Research shows that  Human Resources often creates an environment where bullying “remains unchallenged, allowed to thrive or actually encouraged in an indirect way.” If the victim seeks help, HR  protects the employer’s interests rather than to seek a fair and just resolution. “The absence of collective voice … renders employees completely vulnerable, with no avenues for redressal … Issues of justice and morality inevitably arise … With managers being judge and jury combined, the correctness of managerial decisions remains largely unchecked … .”  FROM:  Premilla D’Cruz and Ernesto Noronha, Protecting My Interests: HRM and Targets’ Coping with Workplace Bullying, The Qualitative Report Vol.15, Number 3 (May 2010) http://www.nova.edu/ssss/QR/QR15-3/dcruz.pdf.

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In the case of despots, you need to depose them; in the case of bullies, you need to boot them. Few are worthy of rehabilitation. Power for them is both a means to an end as well as the end itself. “ – John Baldoni, 12 Steps to Power Presence: How to Assert Your Authority to Lead, (2010)

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Excerpt from the Center for the Promotion of Health in the New England Workplace at the University of Massachusetts, Lowell:

Organizational Practices that cause worker stress:

  • Favoritism
  • Inflexible rules
  • Low pay and benefits
  • Poor supervision
  • Job insecurity
  • Responsibility without authority
  • Lack of input in decisions
  • Poor chances for advancement or growth
  • Unclear responsibilities or expectations
  • Multiple supervisors
  • Lack of recognition
  • Poor communication
  • Mandatory Overtime

* Patricia G. Barnes is an attorney with experience in both domestic violence and employment law. She is available for consultation, training on creating a healthy and positive management environment for employees and speaking engagements.






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