Workplace Anti-Bullying Laws Inevitable …

Here are excerpts from a Jan. 21, 2011 article in The New York Law Journal by two attorneys at a major law firm that represents management and employers, warning that it is just a question of time before a state passes a law providing a right of civil redress to workers who are victims of workplace bullying. Note: this article presents a somewhat alarmist view of what the authors concede is the inevitable passage of legislation to combat workplace abuse. The authors trivialize the current problem, focusing on co-worker spats and hypersensitive employees while ignoring the devastating impact of workplace bullying on targets, their families and the employers.  The authors’ interpretation of case law is unduly negative and slanted.  And the authors fail to present an accurate picture of the current costs of  workplace abuse  on employers and society– PGB

Office Bully Takes One on the Nose: Developing Law on Workplace Abuse

by Jason Habinsky and Christine M. Fitzgerald

For years the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim’s status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”

Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII’s reach is narrow. Title VII prohibits employment discrimination based on an individual’s race, sex, color, religion, or national origin.

Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying.

Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge.

Therefore, it appears that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB (Healthy Workplace Bill) will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute others will shortly follow.

U.S. Civil Rights Laws & Workplace Bullying at Schools

The Office for Civil Rights of the  U.S. Department of Education issued a guidance on Oct. 26, 2010 reminding schools that federal civil rights laws also may protect students who are bullied.  Although the DOE does not address this in the guidance, federal civil rights laws also apply to workers at educational institutions receiving federal funds (this may also include libraries, training programs, etc.). Therefore, this guidance is relevant to victims of workplace bullying at educational institutions. PGB

Here is a short excerpt from the Office of Civil Rights guidance:

… In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.

The movement to adopt anti-bullying policies reflects schools’ appreciation of their important responsibility to maintain a safe learning environment for all students. I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).

… by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. The statutes that OCR enforces include Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability.

School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. School personnel who understand their legal obligations to address harassment under these laws are in the best position to prevent it from occurring and to respond appropriately when it does.

Although this letter focuses on the elementary and secondary school context, the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by OCR …

… The statutes that OCR enforces include Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.

Note:  A complaint of discrimination can be filed by anyone who believes that a school that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group. Information about how to file a complaint with OCR is at http://www2.ed.gov/about/offices/list/ocr/complaintintro.html or by contacting OCR’s Customer Service Team at 1‐800‐421‐3481.

Impact of Job Stress on Health

 There is  OVERWHELMING research that workplace bullying can be devastating to one’s health, both emotional and physical. PGB
 

Job Stress and Health

Excerpt from a publication of the Center for the Promotion of Health in the New England Workplace:

Stress sets off an alarm in the brain, which responds by preparing the body for defensive action. The nervous system is aroused and hormones are released to sharpen the senses, quicken the pulse, deepen respiration, and tense the muscles. This response (sometimes called the fight or flight response) is important because it helps us defend against threatening situations. The response is preprogrammed biologically. Everyone responds in much the same way, regardless of whether the stressful situation is at work or home.

Short-lived or infrequent episodes of stress pose little risk. But when stressful situations go unresolved, the body is kept in a constant state of activation, which increases the rate of wear and tear to biological systems. Ultimately, fatigue or damage results, and the ability of the body to repair and defend itself can become seriously compromised. As a result, the risk of injury or disease escalates.

In the past 20 years, many studies have looked at the relationship between job stress and a variety of ailments. Mood and sleep disturbances, upset stomach and headache, and disturbed relationships with family and friends are examples of stress-related problems that are quick to develop and are commonly seen in these studies. These early signs of job stress are usually easy to recognize. But the effects of job stress on chronic diseases are more difficult to see because chronic diseases take a long time to develop and can be influenced by many factors other than stress. Nonetheless, evidence is rapidly accumulating to suggest that stress plays an important role in several types of chronic health problems-especially cardiovascular disease, musculoskeletal disorders, and psychological disorders.

Health care expenditures are nearly 50% greater for workers who report high levels of stress.

Journal of Occupational and Environmental Medicine

_______________________________________

How does job stress contribute to cardiovascular disease, and what can be done to intervene?

 

Cardiovascular diseases (CVD) are the leading cause of death in the United States.

Considerable evidence has demonstrated that occupational stress contributes to CVD morbidity and mortality. It is estimated that up to 23 percent of heart disease related deaths per year could be prevented if the levels of job strain in the most stressful occupations were reduced to average levels seen in other occupations …

Job stress results from the interaction of the worker and the working conditions. Specific workplace features of concern include highly repetitive, monotonous tasks, excessive job demands and time pressure, racial or sexual discrimination; management style, interpersonal relationships, work roles, job insecurity, and environmental exposures such as constant background noise, or heat. One very widely used definition of stressful work is the combination of high demands with little or no leeway for decision-making about the job (also referred to as “high demand/low control” or “job strain”). A high demand with insufficient rewards (known as
“effort/reward imbalance”) has also been highlighted as problematic.

Evidence supporting the multiple mechanisms by which job stress contributes to cardiovascular diseases (and other chronic health conditions) comes from a vast body of international scientific literature that includes epidemiologic studies, patho-physiological studies of animals and humans, and behavioral studies. Stressful conditions on the job can result in at least three main mechanisms or pathways:

1. Changes in physiological processes that increase the risk for CVD—high cholesterol, high blood pressure, high blood sugar, weakened immune response, high cortisol, and changes in appetite and digestive patterns.

2. Changes in behavior that increase the risk for CVD—low physical activity levels, excessive coffee consumption, smoking, poor dietary habits.

3. Development of mental health conditions (anxiety and depression) that independently increases the risk for a range of chronic health conditions, including CVD (obesity, stroke, atherosclerosis, arrhythmias, myocardial infarction, etc.).

… evidence from intervention research shows clear benefits for a “systems” approach that emphasizes primary prevention, and that combines approaches for improving working conditions with approaches for managing occupational stress-related illnesses.  Examples of primary prevention approaches include clarifying worker roles, increasing worker decision making opportunities, improving worker management communication, ensuring a respectful work environment, and increasing social interaction between workers. Examples of managing occupational stress-related illness include training on stress management techniques, providing space for exercise and medication, and providing access to employee assistance programs …

Authors: Suzanne Nobrega, M.S., and Manuel Cifuentes, M.D, Sc.D., University of MA Lowell

___________________________________________

STUDY: BAD MANAGERS POTENTIALLY LETHAL

In a groundbreaking 2008 study, Swedish researchers, led by Anna Nyberg at the Stress Institute in Stockholm, studied more than 3,100 men over a 10 year period in typical work settings. The researchers reported in the Journal of Occupational and Environmental Medicine that employees who had managers who were incompetent, inconsiderate, secretive and uncommunicative were 60 percent more likely to suffered a heart attack or other life-threatening cardiac condition. Employees who worked with “good” leaders were 40 percent less likely to suffer heart problems.

Chef Ramsay or Donald Trump?

This is a story from the BBC News Magazine about workplace bullying. The story compares Chef Gordon Ramsay from Hell’s Kitchen and the British host of The Apprentice, Alan Sugar. The format of Trump’s show is similar to that of Sugar’s. PGB

Just what is bullying?

By Rajini Vaidyanathan, BBC News Magazine

Everybody has been in an office where tempers were lost and swearing occurred on an occasional basis. But what distinguishes the acceptable boisterousness that characterises some workplaces with downright bullying?

Shouting, screaming, swearing, ignoring or behaviour designed to embarrass.

Has your boss done any of the above to you, and if so, did you shrug it off as normal office behaviour, or consider it something far more serious?

In a new book, Prime Minister Gordon Brown has been accused of workplace bullying after a number of alleged incidents. He is said to have grabbed staff by the lapels, shoved them aside and shouted at them.

Mr Brown admits he can get angry, and is determined and strong willed, but denies he is a bully.

So where is the line drawn between being assertive in the workplace and being labelled a bully?

Defining where that line is, and when it is crossed, can be difficult. If you’ve failed to meet your project deadline, should your boss take you to one side and sweetly tell you you didn’t make the grade, or does he or she have a right to shout at you and demand answers?

In the various interpretations of workplace bullying, there is a common thread – it is when the behaviour humiliates and offends the victim, is a personal attack, and is an abuse of power.

The Chartered Institute of Personnel and Development, which represents recruitment experts, defines it as this:

  • “Bullying at work involves repeated negative actions and practices that are directed at one or more workers.
  • “The behaviours are unwelcome to the victim and undertaken in circumstances where the victim has difficulty in defending themselves.
  • “The behaviours may be carried out as a deliberate act or unconsciously. These behaviours cause humiliation, offence and distress to the victim.”

Ramsay rollicking

But even then, it can be hard to know what distinguishes an ebullient manager from a bullying boss.

“Strong managers are given power because they are managers,” says Lynn Witheridge, chief executive of the Andrea Adams Consultancy which was set up to deal with workplace victimisation. “It’s their job to use and to wield it but not to abuse.”

For many people, the embodiment of an irascible boss is TV chef Gordon Ramsay, or Alan Sugar, who wields the firing finger in the BBC’s The Apprentice. Both have formidable characters and don’t hesitate to deliver withering comments.

But by Ms Witheridge’s definition only Ramsay’s approach could be considered a form of workplace bullying.

“He is absolutely [a bully] because it becomes personal… he uses swearing, and shouts at people saying they’re thick.”

Sugar, however, is not, she says.

“He has to pick the very best but it doesn’t get personal. He doesn’t use personal traits and accuse them of being thick… he strongly manages them.”

But others might see the behaviour of the head chef as entirely reasonable, given the pressurised environment of a professional kitchen.

Kitchen tempers

Most people understand that at busy times, it is high tension, says Jenny Stringer, acting managing director of Leiths School of Food and Wine.

“You need to be quite vocal, depending on the kitchen you need to speak loudly. I don’t think that’s what anyone means by bullying,” she says.

There’s a clear difference between yelling orders at people and operating normal quality control, and repeatedly physically confronting a single member of staff, she notes.

It’s not just in kitchens that tempers are frequently raised. Shouting at someone who is late to meet their deadline might not seem out of place in a newspaper office, or in a trading room where a certain level of robustness is expected.

Neil Addison, a barrister who specialises in harassment cases, says context is key.

“What might not be bullying in the barrack room, might be harassment in a school. If you’re training for the SAS there’s no point complaining that a sergeant is shouting at you because that’s what goes with the job.

“But if you’re a teacher in a school or a worker in an office there’s no reason for your boss to shout at you.”

Some of those who have experienced workplace bullying say the stereotype of being barked at by a short-tempered boss is missing the point. It can manifest itself in a more subtle, yet sustained, manner.

Mark, who worked for a private firm that was contracted by the NHS several years ago, became a victim.

“It wasn’t a question of pushing and shoving, but it was nasty stuff.

“There was an attempt to to show you up in meetings. Saying to your face you didn’t know what you were talking about, putting self-doubt in your mind.”

Yet when he tried to raise the issue, he was given the brush off.

Playground ring

“I tried to do the right thing and reported it to HR. They told me it wasn’t bullying. They said ‘it’s just your boss, it’s the way he is’.”

Mark eventually took voluntary redundancy, and now runs his own antiques business.

“I got to the point where I went off for a while with stress. I was unable to do my job.

“This kind of background bullying, it isn’t as overt as someone standing yelling at your face from two inches away. It hits you in the guts. You think ‘maybe I’m making this up’.”

Part of the problem could be the label of “bullying” which comes with a good deal of emotional baggage, says Lynn Witheridge.

“People are so fearful of using this word. The childish connotations of the word makes them feel weak or a trouble-maker.”

Story from BBC NEWS:

http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/magazine/8528422.stm

 

Published: 2010/02/22 15:32:36 GMT