Other Approaches to Workplace Bullying?

So far, efforts to combat bullying in the American workplace largely have centered on a campaign spurred by the Workplace Bully Institute to pass anti-bullying legislation on a state-by-state basis.  To date, the effort has yet to yield a single success (defined as a state that has adopted such legislation).

What would happen if workplace anti-bully advocates took a different approach?

One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to  permit any worker to sue if subjected to a hostile workplace environment.

Another idea is to approach the problem as an important public  health issue  –  which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.

Advocates for anti-obesity measures took the local approach, with some initial success.  However, industry groups are now finding a way to halt local initiatives, using stealth tactics to erect statewide road blocks.

Public health advocates persuaded some progressive cities and counties around the nation to pass anti-obesity measures, such as requiring restaurants to list fat and calorie content on their menus or to prepare food without unhealthy trans-fats.  The New York Times reported June 30, 2011 that  industry groups are acting pro-actively to quash these anti-obesity efforts. and they are using stealth tactics.

The Times notes that Ohio’s 5,000-page state budget contained sweeping limitations on local government control over restaurants.  Florida  adopted similar limits, tucked into a bill that largely concerned amendments to state regulations on vacation rentals. Other states with limits include Alabama, Georgia, Tennessee, and Utah. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.

Not surprisingly, state restaurant groups are leading the charge for the preemptive state legislation.   State legislators who sponsored preemptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

The Los Angeles City Council has banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

The Ohio law gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”  The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products.

One of the fundamental concepts of the U.S. Constitution involves the importance of state’s rights – the idea  is that real change and progress comes from experimentation among the states and not through a federal bureaucracy. It doesn’t take a PhD. to see that this concept also is relevant to states, which tend to  adopt progressive statewide legislation in response to local initiatives.   I’d rather be guided by the framers of our U.S. Constitution than self-interested industry groups. Wouldn’t you?

The state-by-state campaign to adopt workplace anti-bully legislation began in 2003 in California and has encountered steady opposition from business groups, who apparently are largely ignorant about the enormous toll bullying exacts on the employer’s bottom line.   This, despite the fact that the Workplace Bullying Institute is pushing a proposed Healthy Workplace Bill that is considerably weaker than legislation adopted in other industrialized countries around the world. American workers deserve strong protection from bullying in the workplace, which causes health problems and destroys lives and families.

* The new state laws limiting public health measures will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

The Healthy Workplace Bill is Anemic

The proposed Healthy Workplace Bill (HWB) is touted as model legislation to combat workplace bullying in the United States but is it as healthy as it should be for American workers?

No, says an international expert writing in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010.

“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,

The HWB was drafted by Professor David Yamada of Suffolk University, Boston, MA,  founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.

Ms. Lippel said the HWB contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible psychological or physical harm.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:

“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”

It should also be noted that proof of malice is not a requirement for “hostile workplace” claims under Title VII of the Civil Rights Act, which protects victims who are discriminated on the basis of race, sex, national original, etc.  They need prove malice only if they are seeking the additional remedy of punitive damages.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:

“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”…  requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

It should also be noted here that proving tangible  psychological or physical harm is not required by federal discrimination laws for other victims of a hostile workplace environment.  In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case.  In Harris v. Forklift Systems., the U. S. Supreme Court said the protection of federal law comes into play before the harassing conduct leads to a nervous breakdown.  (See Harris v. Forklift Sys., 510 U.S. 17 (1993))

The Supreme Court also said:  “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.”

Furthermore, the requirement to prove psychological harm would be a burden for targets who don’t have health care coverage,  the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.

Overwhelming research shows that bullying causes  stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease.  Shouldn’t this be taken into account?

Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

There is one other striking problem with the HWB that is not discussed in the special issue.  The HWB places a seemingly arbitrary cap on damages for targets of bullying who did not experience an adverse employment action, such as demotion or dismissal. The cap on emotional distress damages is $25,000 and targets are prohibited from seeking punitive damages. This cap is so low that it is unlikely that the HWB would serve as a deterrent to employers.  And, in a worst case scenario, the family of target driven to suicide by bullying would be able recover barely enough to pay for a decent funeral – all because the target was not demoted or fired. In short, the only damages available to a target of workplace bullying in this situation would be compensatory, i.e. the payment of medical bills.

Namie and Yamada have expressed concern about burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But they fail to explain why this concern wouldn’t apply equally to any other lawsuit involving a hostile work claim, including sexual harassment or race discrimination lawsuits.  Why should targets of workplace bullying be singled out?

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Unwelcome conduct becomes illegal when it is so severe and pervasive that it interferes with the target’s work performance or creates a work atmosphere that is offensive or abusive. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).

The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security. The special issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html

– by Patricia Barnes

*** Note: This article was updated on 2/7/12

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Women Too Nice to Get Corner Office?

Or maybe we should examine the workplace and ask ourselves why it’s detrimental to one’s career to show respect, fair play and teamsmanship? PGB

Exhibit A: Women told not to be too nice

The Wall Street Journal writes about advice that Citigroup provided to women who wanted to succeed in their careers.  Laminated cards, distributed to some female Citigroup employees,  list some things women do to sabotage their careers.  According to the cards, women tend to:

1. Speak too softly and aren’t heard

2. Groom in public, which “deemphasizes…capability.”

3. Sit too demurely, rather than leaning forward at the table in meetings.

4. Speak last in meetings. Early speakers are seen as more assertive and authoritative.

5. Ask permission, while men inform.

6.  Apologize too much for every little thing.

7.  Smile too often, which can dilute a message.

8. Play too fair.

9. Operate behind the scenes, which enables competitors to take credit for one’s work.

10. Offer a limp handshake.

The WSJ took the position that took “the view that these suggestions were helpful ways for women to do well in finance. ”

The list emanated from a book, “Nice Girls Don’t Get the Corner Office: 101 Mistakes Women Make That Sabotage Their Careers,”  by Dr. Lois P. Frankel.

The WSJ quotes her stating the list was taken out of context BUT:

“The women who say they don’t have to do these things are naïve,” Frankel said. “There are different rules for men and women in the workplace. To be successful, you have to figure out the boundaries on the playing field and figure out where to play your game on the edge. All games are won at the edge.”

U of Virigina clears itself of fault in alleged bullycide

Excerpts from an article by The Chronicle of Higher Education about the suicide of  Kevin Morrissey (pictured below), the managing editor of the Virginia Quarterly Review, who was allegedly bullied by his boss.  See: http://chronicle.com/article/UVa-Audit-Finds-Questionable/125034/ for the full article.

October 20, 2010

But Finds ‘Questionable’ Management by  Editor

By Robin Wilson

An audit of The Virginia Quarterly Review released on Wednesday by the University of Virginia says that Ted Genoways, the journal’s editor, had “questionable” managerial skills and spent magazine money without approval to publish a book of his own poetry. But the audit report stops short of saying that Mr. Genoways was guilty of workplace bullying, which some journal staff members say contributed to the suicide of the journal’s managing editor, Kevin Morrissey.

The internal investigation, which was commissioned in August by the university’s new president, Teresa A. Sullivan, also found that while UVA should streamline its procedures for dealing with employee complaints, the university took “appropriate actions” in dealing with complaints from journal’s staff about  Genoways. “Because some individuals were not aware of all that was going on,” says the eight-page report, “they incorrectly concluded that things were not being done.”

A spokeswoman said the university is “committed to publishing VQR,” although she said the university will make several changes in the way the journal is managed.
The report does not specifically mention accusations of workplace bullying made against  Genoways by some staff members, and subsequently by  Morrissey’s sister, Maria Morrissey, but it does say that such behavior can be hard to discern. “It is sometimes difficult to define where the line gets crossed between a tough manager and an unreasonable one,” says the report, which points out that “no laws exist” banning workplace bullying, as they do banning sexual harassment.

The report says that, by his own admission,  Genoways’s “capacity to supervise and lead his staff well and to operate his department in accordance with university policies is questionable.” It recommends that the university establish a panel “to strengthen the institution’s policies and structure with regards to acceptable workplace conduct,” something the university has agreed to do.

Genoways came to Virginia as editor of VQR in 2003 and brought Morrissey in as his deputy. By all accounts, the two were quite close until about a year ago, when  Genoways hired Alana Levinson-LaBrosse, a young UVA graduate and donor, to help raise money for the magazine. Morrissey, who had suffered from serious depression for which he had taken medication,  reportedly felt he was being pushed aside.  In the months before Morrissey took his life, people close to the magazine say that Genoways barely communicated with Morrissey and other members of the journal’s small staff,  frequently working from home instead of from the VQR offices. In a letter that Genoways sent to contributors and others after  Morrissey’s death, he said it was Morrissey who had been distancing himself—and he blamed the behavior on  Morrissey’s depression.

Last July, after becoming angry about an exchange that Morrissey and another staff member had with Levinson-LaBrosse,  Genoways banished  Morrissey to work from home.  Morrissey, worried that he might lose his job, made 17 calls to the university’s human-resources department, the president’s office, and university officials responsible for employee assistance and faculty-staff relations, said his sister. Other staff members also complained to university officials about Genoways and told UVA administrators that they worried that Morrissey was so distraught he might kill himself.

In late July, Morrissey shot himself in the head, leaving a note that said: “I just couldn’t bear it anymore.”

Although the report did not find fault with the university itself, it said the institution’s way of dealing with complaints from employees should be re-evaluated. Under the management response, President Sullivan wrote that a new structure will be established for complaints to be taken, registered, and tracked—and for them to be investigated and have the findings reported.

Critics argue that UVA might have prevented the alleged bullycide of Morrissey by addressing the obvious dysfunction of the journal operations.