Still Far From a National Workplace Bullying Solution

It is an interesting phenomenon that workplace bullying advocates seem to have a hard time working together.

In fact, they don’t, which is one reason why after so many years there is no national solution on the horizon to the problem of workplace bullying.

The Workplace Bullying Institute, chaired by Gary Namie, has been touting a law written by Suffolk University Professor David Yamada since 2002. The so-called Healthy Workplace Bill  (HWB) has been considered by more than 20 states but it has only been passed, in small part, by Tennessee. Unfortunately, Tennessee’s version of the HWB was so unfortunate  that it was promptly disowned by Namie.

Even if the HWB was passed by some states in an unaltered form, it is almost inconceivable that it would be adopted by competitive, pro-business states where workers are the most vulnerable to abuse. And some say it is fortunate that the HWB has fared so poorly, because it offers scant real protection to targets of workplace bullying, especially when compared to anti-workplace bullying laws and legislation passed in other countries.

Nevertheless, the Workplace Bullying Institute has succeeded in bringing attention to the problem of workplace bullying through its state-by-state campaign.

I was part of the formation of the National Workplace Bullying Coalition (NWBC) a couple of years ago.  Some of the group’s members had been put off by Namie, a seemingly gruff and territorial man who has been called a bully himself by a competitor.  Despite this, the NWBC reached out to Namie and Yamada with no success.

From my perspective, it is unfortunate that the NWBC finally settled on a vague mission statement to “work with legislatures at the local, state and federal levels to refine the definition of workplace bullying and implement laws to protect workers’ rights to dignity at work.”  That’s a type of frustrating all things to all people approach that reminds me of the “I’d like to buy the world a coke” commercial for world peace.

Yet, the NWBC has made progress by encouraging the EEOC to study the issue of general workplace harassment. One of the NWBC board members, Professor Jerry Carbo, is a member of an EEOC Select Task Force recently formed by EEOC Commissioner Jenny Yang. The group is expected to issue a report that sheds insight into and offers suggestions to address workplace bullying.  This is an important step.

My area of focus is and always was to achieve a national solution to the problem of workplace bullying.  I believe the answer lies in a combination of health and safety regulations enforced by the Occupational Health and Safety Administration and in a federal law that protects all workers from a hostile workplace environment. I advocated a national solution when I wrote my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace and I still believe it is the only realistic way to protect American workers.

For years, I have received emails every week from good, hard-working Americans who are being viciously bullied on the job and who are suffering severe mental and physical distress. Workplace bullying is a widely acknowledged form of workplace violence. Other industrialized countries took steps years ago – in some cases decades –  to address the problem of workplace bullying. And yet workers in the United States, who have lost so much in recent years, still have virtually no protection, especially if they are poor or middle class.

Maybe it is naive to think we could be more effective if we worked together to demand a national solution? But workers need a real solution and they need it today, not in the distant future.

Comments

  1. Hi, Patricia –

    I so much appreciate your blog. What are your thoughts regarding a civil remedy for the damages incurred by targets of bullying? Have you (or anyone else) drafted a version of a federal law protecting all workers from hostile work environments (regardless of protected status under Title VII)?

    Thank you.
    Debra Healy, MS
    agree2agree – Healy Conflict Management Services

  2. Hi Debra: Thanks… I think there should be a civil remedy for subjecting any worker to a hostile workplace environment regardless of the worker’s race, sex, religion, national origin, age of disability.. A hostile workplace environment is a legal term that has been defined over the years bythe U.S. Supreme Court decisions. Generally it is a form of harassment that is so severe and pervasive conduct that it permeates the work environment and interferes with an employee’s ability to perform his or her job. Drafting a bill is the least of it.

    • Hi, Patricia –

      I’m very familiar with the legal term “hostile work environment”. I’ve worked as a paralegal in employment law (assisting in representing plaintiffs) in the area of civil rights and employment law for 17 years. What I appreciate with David Yamada’s approach (although not perfect) is that his bill includes a civil remedy – something which, from my understanding, OSHA cannot do, for example. What are your thoughts about putting a federal law into place that provides such a remedy regardless of membership in a protected class? It seems to me that drafting a bill that could make it through the House and Senate is a huge part of this. I’d love to know your ideas.

      Thanks very much.
      Debra

  3. Hi Debra: I appreciate your question. First, OSHA is not cast in stone. It can and should be improved. OSHA must address this problem because there is overwhelming evidence that workplace bullying causes potentially severe short-term and long-term mental and physical harm. This is a worker health and safety issue. Second, even aside from the dubious merits of the Health Workplace Bill, it seems obvious after more than a decade that a state-by-state approach to the problem is flawed. Where are the victories? And it is naive to think pro-business states like Texas or Indiana will ever adopt an anti-workplace bully bill. With respect to a federal law. I have suggested extending to all workers the protection that is already provided under federal law to members of protected classes who are subjected to severe and pervasive workplace harassment. This would have the added bonus of relieving members of protected classes of the onerous burden of proving the harassment they suffered was motivated by illegal discrimination. I believe the focus should be on avoiding foreseeable harm. The law should incentivize employers to take reasonable steps to protect workers from this form of workplace violence. It should penalize employers,who had notice of the problem and failed to correct it and, especially, employers who use bullying strategically to avoid complying with the law (ex. firing ‘troublemakers’ who assert their rights to fair pay or firing workers to downsize without paying unemployment or workers’ compensation). But the real point I am making is that the time is long past overdue for a solution. This should not be about egos and marketing products and services. Good, hardworking Americans are being devastated by this problem every day. The United States needs to catch up with other industrialized countries who acted long ago to address workplace bullying. Drafting the bill is no problem.

    • Thanks so much! I completely agree with you – and have witnessed so much of the devastation you mention. As you well know, the current laws provide absolutely no protection for targets of bullying (unless they can prove that the conduct derives from their membership in a protected class – but, even if this is the case, Title VII claims are very, very difficult to prove). The tort of intentional infliction of emotional distress is nearly impossible to surmount with its “extreme and outrageous” standard. I am very interested in the possibility of a federal law. Yet, won’t such an approach run into the same obstacles as the Healthy Workplace Bill – e.g., fierce resistance from pro-business politicians and lobbyists? The OSHA approach certainly makes sense, but to add a civil remedy to OSHA seems like a pretty tall order. Based on your vast knowledge in this area, which industrialized country do you think has best handled workplace bullying – not only preventing it, but also in providing a civil remedy for damages? Thank you for your patience with my persistent questions. Take care. Debra

  4. Hi Pat,

    Thanks so much for your article on this topic. And hello Debra – long time no talk!

    As you know I am one of the founding members of the NWBC too, Pat. I know when we met you had very clear ideas on how to solve bullying at a National level. There’s a lot of “this is the solution” from everyone in the anti-bully world, but Namie and Yamada are the only ones who have drafted something (at least as far as I know), so they are the only ones who are getting something through to legislators.

    Our mission statement is vague because our goal is to look at a variety of perspectives. Namie’s point of view is so, “if you’re not with me, you’re against me,” and, “my way is the only way,” that we wanted to be the venue for more conversation. In fact Namie doesn’t like me because he invited me to become certified in “his way” and I respectfully declined. Apparently, since I’m not with him, I must be against him, and he has put the order out to his followers that I am to be ignored by them. NWBC stands for the opposite – conversation and ideas from everyone. Thus a vague mission statement is necessary.

    NWBC isn’t about egos – it’s about hearing from everyone. In my mind, that’s farthest from ego as you can possibly be. I personally have gotten behind less than perfect laws (like CA) because they are a step in the right direction – they are something. CA’s law was brilliant because it corners employers into having and enforcing an anti-bullying policy. No HR person is going to let a training about abusive conduct happen, and then turn people away when they show up in the HR office complaining that what they just learned about is happening to them. Is it for 50+ employers? Yes. Do employers have to have a policy? No. Is it perfect? No, but it is soooo much farther than Namie has ever been able to get. And I rooted for it because it’s something.

    If you drafted this national solution you speak of, there’s a good chance the NWBC would get behind you too. Rather than commenting on all the problems with current solutions available, perhaps you could draft this national solution you speak of and start working toward getting it passed. Who knows? Maybe yours is the one that gets passed in the end!

    • Hi Catherine – I agree that the CA law represents an important milestone. It’s not the answer but it is a positive step. I will draft something for the sake of starting a conversation. More later.

    • Hi, Catherine!

      It’s good to hear from you! As you may recall, I advocate for a multi-disciplined approach to workplace abuse. A phenomenon so complex cannot be addressed merely from a rights-based approach – although a legal remedy could, and should, at the very least, provide monetary (make whole) damages to victims/targets of workplace abuse. Workplace abuse is both layered and nuanced and needs to be approached as the systemic human issue it is.

      And, Pat – I look forward to reading your draft of the federal law you propose!

      Take care.
      Debra

  5. Jerry Carbo says:

    Hello Patricia,

    I completely agree with what I see as both themes of your article. All of us who are serious about eliminating workplace bullying should be working together to come up with the best solution and two that best solution clearly appears to be a national piece of legislation. I agree with both you and Debra about the path for this legislation. I would suggest that either viewing this as a safety issue (worker human right to safety in the workplace) under OSHA or as a civil right (human right to dignity and freedom from bullying) would be acceptable paths.
    I also concur in your commitment to a nation wide solution. Workplace bullying is a violation of workers’ most fundamental human right – the right to dignity. As all human rights apply, this right applies to ALL workers and no worker should be excluded. Like we have seen with all worker legislation in this country I believe that a passage of an anti-workplace bullying law will require a social movement. It is my goal to help to spur that social movement through education and especially through involvement with the labor movement. I have seen unions effectively address workplace bullying (and others make the problem worse). I do believe we can get the labor movement as a whole behind the push to pass some form of national legislation.
    Will the passage of statewide legislation promote or hinder this process? I am not sure. I think we have seen instances of both outcomes. Will these laws spur a movement to spread similar legislation or will they quiet the movement because those who are protected no longer see the need to move forward? This is something we would need to answer over time.
    I do have serious concerns about statewide laws or even national laws being passed that lack the teeth to actually force employers to eliminate workplace bullying. If employers truly wanted to voluntarily eliminate workplace bullying we would have seen much more progress than what we see at this point. Further, even if the incentives might be naturally available for employers to eliminate bullying (i.e. it is to their financial benefit) at the macro level, these incentives do NOT always exist at the micro level and may not always exist over time. As a result I agree we need strong national legislation that provides a clear incentive for employers to prevent, detect and remedy all forms of bullying/harassment and if employers fail to do so the legislation must provide targets a path to being made whole as well as providing for some type of meaningful punitive measures to prevent future bullying.

    • Thanks Jerry – Personally, I think both pathways should be pursued – OSHA protection and a civil remedy. As my father used to say, “Let’s get this show on the road!”

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