More than Half of Women in Workplace Bullied

peopleatworkMore than half of women are bullied at work– often by members of their own sex, according to the largest survey of its kind ever conducted in the United Kingdom.

The gender equality group, Opportunity Now, and PwC, an international  professional services group, commissioned a survey that included interviews with nearly 23,000 women and more than 2,000 men.

The group recently issued a report,  “Project 28-40,”  which urges employers to recognize that “harassment and bullying still occur, despite well-meaning policies. Call it out, deal with perpetuators, and make it simple and straightforward to report.”

Helena Morrissey, chairperson of Opportunity Now, said the key  to improve the workplace for women should be training  excellent managers; this will  achieve “much more than yet another initiative  or programme.”

Fifty-two percent of the women who responded to the survey said they experienced bullying at work within the past three years. The rates were highest for Black British / African /Caribbean women (69%), women with disabilities (71%), bisexual (61%) and lesbian and gay women (55%).

Without being specific, the report states that  the biggest enemy facing women in the office or other workplaces may be other women.  The researchers conducted ten focus groups to gain insight from the survey findings.  “Women often experience bullying by female colleagues and line managers, a point echoed by focus groups participants who thought female bullies felt threatened by potential and ability and so exploited their position or authority to undermine,” said the report.

More than one in four of the women surveyed said they had experienced overbearing supervision or misuse of authority, or were deliberately overloaded with work and subject to constant criticism. One in six of the women experienced exclusion and victimization or were intentionally blocked from promotion or training opportunities.

The researchers conclude that the data shows the extent to which workplaces are “dysfunctional, inefficient and fundamentally unjust” to women.

An additional 12% of women reported experiencing sexual  harassment within the past three years. One in eight said they had been sexually harassed – defined as “unwelcome comments of a sexual nature.”  This includes unwanted physical contact or leering, asking for sexual favors, displaying offensive material such as posters, or sending offensive emails or texts of a sexual nature.

Rutgers’ “Independent” Investigation

RutgersOne wonders how an “independent” investigation could support a finding that Rutgers bullying basketball coach Mike Rice should remain on the university payroll?

Rice was forced to resign recently after a videotape was leaked to the public and showed him verbally and physically  abusing players, while using homophobic slurs.

 In his letter of resignation letter to Rutger’s President Robert L. Barchi, Athletic Director Tim Pernetti writes:

 “As you know, my first instincts when I saw the videotape of Coach Rice’s behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”

Corporate Counsel  reports that the outside counsel, Attorney John Lacey, an attorney with Connell Foley of Roseland, NJ,  issued a report in January stating that Rice could not be fired “for cause.” because there was no clear violation of his employment contract.

  Lacey found that Rice was extremely demanding of his assistant coaches and players but that his behavior did not constitute “a ‘hostile work environment’ as that term is understood under Rutgers’ anti-discrimination policies.”  Lacy said  the “intensity” of Rice’s misconduct may have breached provisions in his contract against embarrassing the school but, as Rutgers officials conveniently point out, did not recommend termination. 

The conclusion of the so-called independent investigation once again raises questions about these so-called  independent investigations.

 Increasingly,  employers hire  outside parties to “investigate” claims of workplace abuse.  There  often is  an unstated expectation that the result  of the investigation will affirm the employer’s goal of retaining the valued bully while insulating the employer from a potential lawsuit if the less valued target files a lawsuit. Too often the so-called independent investigators are attorneys who place themselves in the position of appearing to be for sale to the highest bidder.

 The videotape is so shocking that it defies reason that any “independent” investigator could reasonably  conclude that Rice’s behavior did not justify dismissal. In fact, some of the basketball  players could have filed criminal assault complaints against Rice for physically manhandling them. Instead of dismissing Rice, Rutgers fined him $50,000 and suspended him for three games in December.

 Just as in the Penn State scandal involving  pedophile football assistant coach Jerry Sandusky, Rutgers appears to have tolerated Rice’s bad behavior.

After the videotape was leaked, the dominos began to fall. Rice was fired.  Assistant Coach Jeremy Martelli, Rutger’s General Counsel John Wolf, and Pernetti resigned.  If I were Barchi, I wouldn’t make plans to redecorate the Presidential suite.  Barchi’s  claim that he never took the time to watch the videotape.until it was made public was met with obvious disdain at a press conference. Barchi blamed his bad decision on a “failure of process.”

Here is what needs to happen so that employers will take workplace bullying seriously – managers  need to be held accountable.  

These student athletes are essentially workers who are paid in the form of scholarship assistance by the university.  Like any other worker, they know that  a complaint can result in retaliation and their termination.  These players  relied upon their unofficial employer, Rutgers, to insure they were treated with dignity and respect and certainly not subjected to emotional and p physical abuse.

 Most of the players just put up with Rice’s abuse. However, according to news reports, at least three players transferred from the program as a result of Rice’s abuse.

           

           

Somewhat Improved Healthy Workplace Bill

pumping ironThe heretofore anemic  Healthy Workplace Bill (HWB) has received a dose of iron in its latest iteration in Massachusetts.

The version of the  HWB submitted for consideration to the Massachusetts’ legislature omits  the  $25,000 cap on damages for targets who were not subjected to demotion or dismissal.

The Workplace Bullying Institute has pushed the HWB, written by Suffolk University Law Professor David C. Yamada,  for more than a decade as part of state-by-state campaign to pass workplace anti-bullying legislation.  More than 20 states have considered the HWB bill since  2002 but none as yet have adopted it.  This year the bill is under consideration in about a half dozen states.

International scholars criticized the HWB in recent years because it was far less protective of targets of workplace bullying than laws and regulations of other industrialized countries.

This blog criticized the HWB’s  requirements that targets prove malice and psychological damage (the latter was expressly rejected by the U.S. Supreme Court in federal anti-discrimination laws) and the unreasonably low cap on damages.

The revised bill still defined an abusive work environment as one where “an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

How would one go about providing that a  bully acted “with intent to cause pain  or distress?”  I have no idea. Suggestions?

In addition,  workplace bullying almost always involves psychological harm. The bill’s requirement to prove psychological harm penalizes poor people and members of minority groups who tend to visit mental health professionals far less frequently for monetary or cultural reasons.  In addition, this approach was explicitly rejected by the U.S. Supreme Court as a requirement in race and sex  discrimination cases involving a hostile workplace . (Harris v. Forklift System510 U.S. 17 (1993)).

The proposed  Massachusetts bill,  sponsored by Rep. Ellen Story and Sen. Katherine Clark.

A far better alternative to the problem of workplace bullying has been proposed by State Sen. Richard “Tick” Segerblom of Nevada.

Segerblom proposed extending the umbrella of  discrimination laws to protect any worker who is exposed to a “hostile work environment.”  Currently, only workers who have protected status under these laws by virtue of their race, sex, national original, etc. are protected.

If an employer or an employee are held to be in violation of the law, the Massachusetts bill  provides  that a court can  order any relief that is “deemed appropriate, including, but not limited to: reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney’s fees.”

According to the proposed bill, an abusive workplace environment is one where “an employer or one or more its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

Abusive conduct involves “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct … .”  This includes but is not limited to:

  • repeated verbal abuse such as the use of derogatory remarks, insults, and epithets;
  • verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature;
  • or the sabotage or undermining of an employee’s work performance.

The proposed Massachusetts bill continues to distinguish between targets of  bullying who have and have not been subjected to an adverse employment action (i.e., demotion or dismissal).  The cap is gone but the latter still cannot  recover from the employer  damages for  emotional distress or punitive damages unless the “actionable conduct was extreme and outrageous.” This limitation does not apply to “individually named defendants.”  Thus, an employee who did not suffer an adverse employment action can only seek monetary damages from bully unless the actionable conduct was extreme and outrageous.

The bill also prohibits retaliation against targets who complain and anyone else who testifies, assists or participates in an investigation of workplace bullying.

The stated purpose of the Massachusetts bill is to provide a “legal incentive for employers” to prevent and respond to abusive treatment of employers at work.

Under the bill, it is  an “aggravating factor” if the abusive conduct exploits an employee’s known psychological or physical illness or disability. In that case, a single act that is “especially severe and egregious” would be actionable.

Employers  can escape liability by showing they exercised “reasonable care to prevent and correct  promptly any actionable behavior; and, the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”

Also, employers cannot be penalized if the complaint is based on an adverse employment action made for poor performance, misconduct or economic necessity, a reasonable performance evaluation or “an employer’s reasonable investigation about potentially illegal or unethical activity.”

The bill would require an employee to  file an action within a year of  the last act that constitutes the alleged violation.