When Workplace Bullying is Illegal

blackandwhiteWhat is the  difference  between workplace bullying and illegal harassment?

The major difference is that no law at present prohibits workplace bullying –  despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being.  And most other industrialized countries have enacted laws or regulations that address workplace bullying.

However, bullying  can become illegal when it creates a hostile or abusive work environment in violation of  federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.

 Generally, two factors must exist:

  •  The harassing conduct must create a “hostile work environment.”
  •  The harassing conduct must be directed toward a characteristic that is protected under  federal and state  civil rights laws.  Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.

What is a hostile work environment?  The U.S. Supreme Court says a hostile work environment  is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment.  Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993).  The Court has repeatedly said that Title VII  does not prohibit simple teasing or a merely offensive utterance.

NOTE:  A  target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.

To sum up,  there may be no substantive difference between  the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment.  The harassing conduct can be identical, with the exact same devestating  result.

The significant difference between serious workplace bullying and illegal harassment  is a legal distinction pertaining to  the characteristics of the  target of the conduct.

Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for  all targets of a hostile or abusive workplace, whether or not they fall within a category that is now  protected under the law.

 As Shakespeare once observed: “If you prick us, do we not bleed.”

Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws.  All targets of workplace bullying  are  encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.

Bullying Causes Co-Workers Stress

A recent study by researchers at New University of British Columbia (UBC) shows that co-workers who witness bullying  experience and may develop a stronger urge to quit than the actual direct targets of bullying.

According to the study: “Our results show that merely working in a work unit with a considerable amount of bullying is linked to higher employee turnover intentions.”

Sandra Robinson, a professor at the Sauder School of Business at UBC and co-author of the study, said society tends to assume that targets of bullying “bear the full brunt. However, our findings show that people across an organization experience a moral indignation when others are bullied that can make them want to leave in protest.”

The study is  published in the current edition of the journal Human Relations.

The researchers found that employees witnessing co-workers being bullied, or merely talking to them about their experiences,  tend to take  the targets’ perspective. As a result, they experience cognitive or emotional empathy, which includes imagining how another feels or actually sharing in another’s feelings. These empathetic responses contribute to the understanding that a significant moral violation has occurred and recognition that the victim does not deserve mistreatment. As a result of this moral uneasiness, bullying at large within a work unit will increase employee intentions to quit their work group

Data used for the study were collected through two surveys of a sample of 357 nurses in 41 units of a large Canadian health authority. The surveys used a series of questions to assess the level of bullying in each nursing unit and then asked participants to rate their positive or negative reactions toward statements like, “If I had a chance, I would change to some other organization.”

Findings show that all respondents who experience bullying, either directly or indirectly, reported a greater desire to quit their jobs than those who did not. However, the results also indicate that people who experienced it as bystanders in their units or with less frequency reported wanting to quit in even greater numbers.

Prof. Robinson said that prior research shows that intentions to quit are directly correlated with employees leaving their jobs. However, she warns that even if employees stay in their roles, an organization’s productivity can suffer severely if staff members have an unrealized desire to leave.

“Managers need to be aware that the behaviour is pervasive and it can have a mushrooming effect that goes well beyond the victims,” says Robinson. “Ultimately bullies can hurt the bottom line and need to be dealt with quickly and publicly so that justice is restored to the workplace.”

Resolved … Don’t Be Evil

The vast majority of workplace bullies don’t think of themselves that way. They justify or make excuses about their behavior. However, I suspect that many workplace bullies – at least those who are not actual psychopaths or sociopaths – do know on some level that what they are doing is wrong.

Every manager should consider the following:

  • How would you feel if your mother, child or partner was treated the way you treat your target? Not so good? Then what you are doing is wrong.
  • Are you flattering yourself?  Are you really a perfectionist trying to get the best out of your workforce or are you a petty tyrant satisfying a personal need for power and control?  If the latter, your actions are damaging both the target and your employer.
  •  There is a fine line between workplace abuse and other forms of abuse, including intimate partner abuse, child abuse and elder abuse. Especially for those in a supervisory position, when you zero in on a subordinate target, visualize a small child who is about to be smacked.
  •  Yes, some employees deserve to be disciplined and/ or fired but there is a difference between exercising legitimate supervisory authority and bullying. No employee ever deserves to be treated disrespectfully or bullied.
  • If you are an employer who is using bullying strategically to avoid a legal obligation – such as paying workers compensation – you are taking a serious risk. Sometimes targets of bullying do not simply fade into obscurity. They hire lawyers and sue.  And whether they win or lose, you will pay.
  •  Bullies are “ fortunate” to work in the United States, which unlike many other industrialized countries for decades has ignored  overwhelming research that workplace bullying causes potentially severe mental and physical damages to targets. But times are changing. Educated employers do not tolerate bullying because they know that they ultimately pick up the tab in terms of needless turnover, absenteeism, higher health costs, litigation, etc.
  • If you are a Human Resources “professional” and you turn a blind eye when a worker complains to you about being bullied – or make things worse for the target – you are part of the problem.  You are acting unethically and doing a great disservice to your employer.

New research is showing that workplace bullies are often their own worst enemies.  American is growing less tolerant of this kind of management style.  It’s one thing if a manager gets an isolated complaint but it can quickly end a promising  career when there are multiple bullying complaints. For all of the above reasons and many more, I propose the following resolution for workplace bullies in 2012:

  DON’T BE EVIL!

Bystanders: Silence of the Lambs

Judge Amanda F. Williams, of Brunswick, GA, possibly the toughest drug court judge in America, has announced she will step down from the bench after 21 years on Jan. 2, 2012 in the wake of a complaint filed by the Georgia Judicial Qualifications Commission.

Williams’ achieved national notoriety in March 2011 when she became the focus of an hour-long program by the American Public Radio show, This American Life, which questioned Williams’ punitive approach to drug offenders.

The radio show featured one case in which Williams sentenced a drug offender who had experienced his first relapse to 17 days in detention and added a year and a half to his time in the drug court program.  A spokesperson for National Association for Drug Court Professionals said the NADCP recommends no jail time at all for a first relapse.

In recent months, the Georgia judicial commission said it received several complaints from lawyers against Williams, who was the chief judge of the Superior Court of the Brunswick Judicial Circuit.

The commission finally brought a formal complaint against Williams on December 11, 2011, charging Williams violated judicial ethics when she gave special treatment to relatives of friends, allowed her relatives and her personal attorney to appear before her without recusing herself, and generally behaved in a “tyrannical” manner.

Perhaps the most controversial complaint facing Williams involved a girl who entered her drug court program in 2005 after pleading guilty to forging two of her parents’ checks.

In 2008, Lindsey Dills violated her “drug court contract.” Williams initially sentenced Dills to 28 days in jail but later modified her order to indefinite detention with no contact from anyone except her drug court counselor. The commission states that Dills remained in solitary confinement for 73 days, during which time she attempted suicide. Although Dills’ suicide attempt occurred on Dec. 9, 2008, the commission states that Dills was not transferred to an in-patient medical facility until Dec. 22, 2008.

The case raises the question? Why did it take so long to address what the commission refers to as Williams’ tyrannical behavior?  Why did it take a radio show to shine a spotlight on Williams’ antics?  Where were the court staff and the attorneys who dealt with Williams every day? It appears to be a case of the silence of the lambs –  people were afraid of what might happen to them if they complained.

The New York Times quotes one attorney as stating: “Judge Williams was a person you did not cross. She ruled by fear and intimidation. I’ve been in front of 50 judges in 34 years and I’ve never seen anything like her.”

Because Williams, 64, vowed not to seek another judgeship, the judicial commission said the complaints against her will be dropped. However, she could still face criminal charges related to her conduct.

In an interview with The Atlanta Journal-Constitution in April, she defended her behavior. “I didn’t just decide I was going to be mean to these people,” she said. “These people aren’t sitting in jail forever and ever and ever and ever. I’m fair. I’m consistent. I do care.”