Workplace Bullying: The Big Picture

I am pleased to be quoted in a  Businessweek  feature on the problem of workplace bullies but I also find it frustrating that  the American media consistently fails to see the big picture about this serious national problem.

Workplace bullying is not just about misguided individuals who bully co-workers and subordinates. More importantly, it is about American employers.

American employers permit bullying in the workplace because there is no law or regulation that requires them to stop it – despite the fact that it is widely recognized as a form of workplace violence. Other industrialized countries recognize workplace bullying as an important public health and safety problem. And decades of research show that workplace bullying causes targets to suffer potentially severe emotional and physical harm.

Only employers can stop workplace bullying. Employees who are targeted for bullying generally are completely helpless to do anything about it, especially if the bully is a superior.

Why don’t employers stop it?

Because in America, workplace bullying is seen as a prerogative of the employer. In fact, some unscrupulous employers use bullying strategically to accomplish a goal – such as to avoid unions, downsize without paying unemployment compensation, or to evade a potential worker’s compensation claim. In my own practice of law, I saw many cases where employees were bullied and driven out of the workplace by an employer after they complained about wage theft (which, by the way, is epidemic in the United States). 

Why don’t workers do anything about it?

The vast majority of American workers are completely priced out of the American legal system and,  besides, federal judges (who have lifetime tenure barring bad behavior) are appallingly ignorant and unsympathetic to claims of  employment discrimination and Intentional Infliction of Emotional Distress.

So one in three or four American workers are bullied by employers, either directly or because the employer tolerates or fails to stop an abusive workplace environment.  

This all  stands in sharp contrast to other industrialized countries – including the European Union – where authorities recognize workplace bullying as a major problem and have placed the burden of eliminating workplace bullying squarely on employers.

Activitists in the United States have been spinning their wheels for more than a decade in an attempt to get a state-by-state solution to the problem of workplace bullying but the only real answer lies with the federal government.  States should act – and I hope they will act – but this is not the solution.  Today, many states will do virtually anything to attract new business; it is wishful thinking that they will voluntarily pass a law protecting targets of workplace bullying  if they can gain any competitive edge by not doing so. 

Meanwhile, the U.S. Occupational Safety and Health Administration has acknowledged the problem by enacting workplace bullying protections for its own employees but it has failed to take any steps to protect the health and safety of millions of American workers across the nation.

This blog is a member of the coalition Protect-US-Workers that has launched a petition drive asking U.S. President Barack H. Obama and U.S. Secretary of Labor Hilda L. Solis to formulate a national response to the problem of workplace bullying.

Talk to your legislators. Sign the petition.

Other Options to Halt Workplace Bullying

After a decade, questions are being raised about whether the state-by-state campaign to pass the so-called Healthy Workplace Bill (HWB) is a realistic solution to the epidemic of workplace bullying in the United States.

This blog suggested last fall that it was time to think about options other than the HWB,  which was first proposed a decade ago and has yet be adopted by any of the 20 states that have considered it. I proposed that the U.S. Secretary of Labor Hilda L. Solis empanel a task force to study the problem and propose new legislation on how to best address the problem of workplace bullying nationally.

The Vermont Senate has thrown out efforts to pass the HWB in that state and voted to create a task force to determine the best way to provide relief and redress for state residents suffering in abusive work environments.   Senate Bill 52 suggests looking at different models to remedy workplace bullying, including:

  • Create a private right of action that would include the recovery of damages (like the HWB).
  • Create a mechanism for injunctive relief similar to those relating to stalking, hate crimes, or relief-from-abuse orders.
  • State enforcement similar to the employment discrimination law.
  • State enforcement by the Vermont occupational safety and health administration.

Gary Namie, the director of the Workplace Bullying Institute, this week issued a defense of the HWB  which the institute has supported since it was drafted by Suffolk University Law Professor David Yamada in 2002.

Namie primarily argues the HWB’s private right of action is best because it is “revenue neutral” and won’t burden states financially.

For the following reasons, I support a different approach:

  •  Proponents of the HWB have been advocating for a decade to pass the HWB in individual states. Twenty states have considered the HWB so far but no state has passed a bill. One state might yet be persuaded to pass a version of the HWB but it could take decades for a significant number of states to do so.  Some extreme pro-business states will never voluntarily pass a workplace anti-bully bill, just as they have fought tooth-and-nail against other workplace protections.
  • The HWB as proposed is anemic. It contains hurdles that are not found in laws adopted in other industrialized countries, or in other U.S. civil rights laws involving the concept of a hostile work environment. These hurdles include requirements that targets prove malice and psychological injury and a $25,000 cap on damages for targets who are not demoted or fired. Many – if not most  — targets will find it difficult or impossible to obtain a meaningful remedy.  (Namie and Yamada refused to respond to questions about the troubling language of the HWB.)
  • Under the General Duty Clause of the Occupational Health and Safety Act of 1970 (OSH Act), employers are required to provide employees with a safe workplace. Overwhelming research shows that workplace bullying can result in potentially serious mental and physical harm.  The Occupational Safety and Health Administration (OSHA), which administers the OSH act, should protect workers from bullying, just as it protects workers from physical hazards. It’s not a question of passing a new law but enforcing the OSH Act.  (Last year, OSHA adopted a workplace anti-bully policy for its own workers.)
  • Workplace bullying is widely acknowledged to be a form of workplace violence.  Although it is primarily psychological in nature, it can lead to physical violence. It exists on the same spectrum of violence as domestic violence and elder or child abuse, all of which are addressed on a federal and state level.  One of the core functions of society is to protect its vulnerable citizens from violence. The HWB provides a private right of action.  This means that its enforcement mechanism is the embattled target, who after months or decades of bullying may lack the emotional, physical, and financial resources to hire an attorney and to embark on lengthy litigation with an uncertain outcome.  What happens if a target cannot or will not act? The bully moves on to his or her next target.
  • A workplace bully is not always an individual. Employers  use “strategic harassment” to get rid of workers who demand their rights and to cheat workers out of their legal rights – such as unemployment compensation, worker’s compensation, and/or fair pay and benefits.  A target suing a single employer cannot solve this problem.

 Other arguments advanced by Namie lack persuasiveness.

An enforcement action by a federal agency would be covered by the press, just like a private lawsuit.

And, yes, the  monetary penalty for state and federal OSH Act violations is insufficient but this can and should be addressed.   OSHA citations also trigger other penalties (including possible criminal sanctions) and an expensive investigation and hearing process.  Employers work diligently to avoid OSHA citations.

Namie and Yamada are concerned about the risk of burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But wouldn’t this argument apply equally to any other lawsuit involving a complaint of a hostile work environment, including sexual harassment or race discrimination lawsuits? Where is the evidence to suggest that frivolous lawsuits will be a particular problem with respect to workplace bullying? And why should this be a focus of concern for anti-bully advocates? Isn’t this what the U.S. Chamber of Commerce does?

Vermont’s bill notes that the Vermont office of attorney general’s civil rights unit reports that of the 1,200 to 1,300 requests for assistance it receives each year, a substantial number involve allegations of severe workplace bullying that cannot be addressed by current state or federal law or common law tort claims.

The United States lags behind many other industrialized countries in addressing workplace bullying.  That is shameful.  We owe a debt to Namie and Yamada for significantly helping to raise public awareness about the problem of workplace bullying, and for their extensive work on the issue. However, a solution is long overdue.  It is time to consider other options to protect the one in four American workers who suffer with this insidious health and safety problem.