Investigations into workplace bullying rarely (if ever?) result in an indictment against the employer/company. Why? And what does it mean when a law firm gives the employer/company a clean bill of health?
Most recently, an investigation into the suicide of Zurich Insurance Group Chief Financial Officer Pierre Wauthier, 53, who killed himself in the summer of 2013, found the company was blameless. Wauthier left a note accusing company chairman Josef Ackermann of creating an unbearable work environment.
Zurich, an international insurance giant based in Switzerland, asked the Swiss Financial Market Supervisory Authority, known as Finma, to direct an investigation into Wauthier’s suicide. The investigation was conducted by a law firm that concluded Zurich’s leaders, including Ackermann, had placed no “undue pressure” on Wauthier. Ackermann resigned three days after Wauthier’s suicide, saying he believed Wauthier’s family wanted him to do so.
A couple of years ago, the University of Virginia conducted a high-profile investigation into the suicide of Kevin Morrissey, the managing editor of The Virginia Quarterly Review, which found the university to be without fault. This despite the fact that Morrissey had complained 17 times to the human resources office about his treatment by the Review’s editor Ted Genoways.
According to published news reports, Wauthier’s widow, Fabianne, attended Zurich’s annual shareholder meeting earlier this month, along with her daughter and her late husband’s mother and brother, and publicly blamed months of internal tension at the company for her husband’s death.
She called the investigation into Wauthier’s suicide “derelict” and “incomplete.” She held up her late husband’s laptop and said the investigators had not even bothered to review its contents.
“How can anyone, Finma included, so categorically exclude work from all the potential reasons,” she asked.
Why do investigations into workplace bullying so often yield conclusions that raise more questions than they answer? If Wauthier had not felt his workplace environment was intolerable, it is not likely he would have written that it was intolerable in his suicide note. Kevin Morrissey’s repeated complaints to HR indicate that he, at least, felt there was a serious problem.
As yet, there is no DNA test to ascertain when a supervisor’s treatment crosses the line into workplace abuse. When law firms investigate workplace bullying, they often probe whether the bullying rose to the level of a “hostile workplace” under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, national origin and color. This theory requires the plaintiff to show that he/she was subjected to intimidation, ridicule and insult that was “sufficiently severe or pervasive to alter the conditions” of employment.
Federal courts are themselves hostile to “hostile workplace” claims, dismissing them at a disproportionately higher rate than other types of cases. Federal judges typically dismiss all but the most egregious and obvious bullying, and require the rest to be tied to an obvious claim of prohibited discrimination under Title VII.
Workplace abuse is usually much more subtle than the schoolyard variety. And it exacts a potentially severe toll on the victim long before a federal judge would find it violates Title VII’s “hostile workplace” provision (provided there was a corresponding, valid claim of prohibited discrimination). Regardless of the so-called investigations that found the employers faultless, two men are dead and there is little real doubt that their workplace was a factor in their deaths.
Workplace bullying can wreak severe havoc on the employer too. Wauthier’s suicide undermined investor confidence in Zurich and led to Ackermann’s resignation, leaving the company without a chief executive officer and a chief financial officer. The University of Virginia found itself mired in a maelstrom of bad publicity for many months that distracted its leadership and besmirched its reputation.
Employers must be held accountable for workplace abuse long before a defense-side corporate law firm theorizes, after the fact, that a federal judge might declare the abuse to be illegal if it was paired with a solid claim of prohibited discrimination under Title VII. The employer controls all facets of the workplace. Only the employer can stop workplace bullying and abuse.