Bullying in the Workplace: California’s New Training Requirement
Everyone remembers a bully in junior high school. She might have been the mean
girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some
people never graduate from junior high—mentally, at least—and some of those miscreants are now employed in your
workplace. What is an employer to do? California has an answer.
The issue of bullying has captured the nation’s
attention. October is “National Bullying Prevention Awareness Month,” according to StopBullying.gov, a federal government website managed by the U.S. Department of Health & Human Services, which provides information on bullying, cyberbullying, and tips on recognizing and preventing bullying from various federal
While the focus of National Bullying Prevention Awareness Month is mostly on schools and students, it is
not exclusively so. A recent survey conducted by an advocacy group suggests that abusive conduct does occur in the
workplace. A Zogby Analytics survey commissioned by the Workplace Bullying Institute (WBI) in 2014 found that 27 percent of the 1,000 people surveyed had suffered
abusive conduct at work, another 21 percent had witnessed abusive conduct at work, and 72 percent were aware that workplace
In recent years, a number of advocacy groups and state legislators have endeavored to ban abusive
conduct in the workplace. Since 2001, advocates all over the country have pushed for anti-bullying laws via the Healthy Workplace Bill (HWB). First introduced in California, the HWB proposes to give employees the right to sue a company for psychological harm
caused by coworkers’ abusive conduct. The initiative has steadily gained momentum throughout the United States, and
the HWB has been introduced by legislatures in 23 other states.
So far, these legislative efforts have, by and large,
failed—and sensibly so. The majority of employers already prohibit unprofessional and discourteous conduct for obvious
reasons. Certainly no employer would want to condone abusive behavior. Yet legislating a solution to the problem begets larger
problems. “Abusive conduct” is difficult to define, and the harm caused by it is subjective. Granting every disgruntled
employee the right to sue when he or she thinks a supervisor or coworker has been unkind would surely paralyze most employers.
this backdrop, last month, California Governor Jerry Brown signed AB 2053, the first workplace anti-bullying law in the state. The law requires employers with 50 or more employees to train supervisors
on the prevention of “abusive conduct” in the workplace. The training must be incorporated into the employer’s
requirement to provide two hours of sexual harassment training for supervisory employees at least once every two years, as
mandated by AB 1825 (Gov. Code § 12950.1).
The California training law defines “abusive conduct” as the “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile,
offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction
of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable
person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s
work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” Notably,
this training law does not prohibit abusive conduct. It only requires that supervisors receive training on its prevention.
new law specifies that the topic of abusive conduct be covered, but nothing more. Presumably, issues such as how much of the
two hours should be devoted to the topic, and what supervisors should be told about preventing abuse, are left to the discretion
of the trainer.
Regulated or not, employers should consider taking
steps to minimize abusive conduct in the workplace. In particular, employers may want to consider tailoring their training
programs and policies as follows:
- During training sessions, focus on common scenarios
that fall outside the definition of illegal misconduct, identify inappropriate conduct, and offer guidance on how to intervene
and respond to complaints. For example, while sexual harassment complaints often involve members of the opposite sex, bullying
may involve a different dynamic. The WBI survey indicated that 77 percent of victims are bullied by perpetrators of the same
- Although psychological bullying is not illegal unless directly connected
to a protected class, consider supplementing general codes of conduct with specific anti-bullying policies and perhaps a formal
complaint system. According to the WBI survey, targets of bullying quit or lose their jobs 89 percent of the time. A broader
code of conduct could help improve morale, increase productivity, and reduce turnover.
any complaints of bullying seriously and consider implementing disciplinary procedures targeting bullies. Surveys indicate
that most targets and witnesses are reluctant to report the bullying they experience—perhaps due to the fact that the
consequences for misconduct are amorphous. By expressing a commitment to take complaints seriously and to follow up with corrective
action, employers will reassure the targets of bullying and deter would-be perpetrators. This will help foster a healthy environment
California lawyers respond to new abusive conduct training law Law Takes Aim at Workplace Bullying,
By Laura Hautaia, Los Angeles
Daily Journal, Sept. 17, 2014
What counts as bullying in the workplace?
While the concept may be relatively
new, managers will have to undergo training on preventing abusive conduct at work once a new law goes into effect in January.
The training will come along with other required lessons on preventing sexual harassment and discrimination, but it’s
different in one important way: bullying isn’t illegal in California. For now.
Attorneys say AB 2053, which
Gov. Jerry Brown signed in August, might open the door to making abusive conduct illegal, opening a new category of liability
"There’s a feeling that there should be a way to prevent that kind of destructive behavior, because it
does hurt people when it’s extreme enough, and it causes economic damage," said Margaret H. Edwards, a shareholder
at Littler Mendelson PC who has researched the advent of anti-bullying laws worldwide.
At the moment, the required
training might still come into play in a court case if workers sue for harassment or intentional infliction of emotional damage
in the workplace, attorneys said.
Whether or not employers provided adequate training on abusive conduct, said Chaya
M. Mandelbaum, a partner at Rudy, Exelrod, Zieff & Lowe who represents workers, "could be a very relevant piece in
looking at the culture of the workplace." Edwards said the new requirement heralds wider recognition of bullying as a
problem that can be addressed with laws. Indeed, other states are considering bills that address bullying in schools, and
Tennessee passed a law encouraging public employers to create anti-bullying policies.
What’s more, she noted,
laws have passed in Canada, the UK and Europe that address bullying in the workplace. "I think part of this is because
of work that has been done that comes out of the harassment arena and a desire to try to address destructive behaviors in
the workplace that don’t quite fall into the traditional harassment and discrimination categories," Edwards said.
Some of that
work has been done by Gary Namie, a Washington State social psychologist who advocates for anti-bullying legislation. He worked
to get a more comprehensive law banning workplace bullying in California in 2003, but the law didn’t pass. Namie said
his organization, the Workplace Bullying Institute, talked with California Assemblywoman Lorena Gomez as she authored AB 2053,
but that the resulting bill was watered down from what he hopes to see eventually become the law.
"The law is a baby step
toward recognizing the impact of workplace bullying defined as abusive conduct," Namie said. Namie compares abusive conduct
at work to domestic abuse. Rather than isolated incidents of cruelty, he said, bullying is a pattern that systematically beats
down an employee.
Employment attorneys agreed with this description. "It’s vicious a lot of times," said Kathryn B.
Dickson. What’s more, she said, everyone at the workplace can suffer when bullying takes place. "It has impact
on morale and productivity." But Dickson also noted that while the law defines abusive conduct, naming it in the workplace
might still be difficult." "It gets very mushy around the edges," she said. However, she compared the task
of defining workplace bullying to the questions that surrounded the idea of sexual harassment when it was first litigated
in courts. "People said how are we going to say what harassment is? That worked out."
One test case emerged in
2006, when a judge in London ruled in favor of a former employee of DB Services (UK) Ltd., a UK subsidiary of Deutsche Bank,
who said she was systematically bullied at work until she suffered two bouts of Major Depressive Disorder. In a detailed,
46-page decision, High Court Justice Robert M. Owen said the bullying was harassment under the country’s Protection
from Harassment Act of 1997, and that the company should have done more to prevent it.
The plaintiff, Helen Green, said coworkers engaged in "petty" bullying conduct
and went out of their way to exclude her from conversations, lunches, work-related email chains and more. Green even recounted
that one coworker made a raspberry sound every time she took a step while walking across the office. "Many of the incidents
that she describes would amount to no more than minor slights," Owen wrote. "But it is their cumulative effect that
has to be considered." What’s more, the company was privy to information about Green’s mental health history
and could have known she would be vulnerable to such bullying, he ruled.
Such situations aren’t uncommon in American
workplaces, plaintiffs’ attorneys said. Mandelbaum said many people call seeking legal representation, only to learn
what they experience at the hands of a coworker or supervisor is not illegal. What’s more, often it’s bullying
that motivates someone to sue for sexual harassment or discrimination in the first place, he said. "It’s that kind
of conduct that underlies their feelings and their motivation to go through what they need to go through to enforce their
rights legally." Mandelbaum said. _________________________________________________
Workplace bullying and the Healthy Workplace Bill continue to attract interest from the media
and professional associations. Here are five pieces that exemplify this trend:
Lexology.com on workplace bullying legislation
In a piece posted earlier this year by Lexology.com and the Association of Corporate Counsel, employment attorney Stephanie K. Rawitt assesses the implications
of pending workplace bullying legislation:
The US is actually the last of the western democracies
to consider laws forbidding workplace bullying.
2003, 25 states have introduced workplace bullying legislation that would allow workers to sue for harassment, without requiring
a showing of discrimination. The proposed legislation was born in 2001 by Suffolk University Professor of Law David Yamada,
who drafted the text of the Healthy Workplace Bill (HWB).
...Enactment of anti-bullying legislation could very well be one of the biggest things to happen in the world of employment
law since the passage of Title VII given its wide-spread applicability to all employees. If anti-bullying laws are to become
a reality, state lawmakers will need to carefully craft the statute in an attempt to both protect employees from harmful workplace
bullying while also shielding employers from an avalanche of frivolous litigation.
Wall Street Journal on Tennessee public sector bullying law
The Lexology.com piece preceded Tennessee's enactment of a workplace bullying lawthat directs a state commission to develop a model anti-bullying policy that can insulate the state's employers from liability.
Adam Rubenfire, writing for the Wall Street Journal, solicited responses to the Tennessee law:
Tennessee approved the Healthy Workplace Act on May
22, a law designed to curb verbal abuse at work by making public-sector employers immune to bullying-related lawsuits if they
adopt a policy that complies with the law.
Namie, a social psychologist, said the Tennessee law doesn’t go far enough.
...(T)he signed law applies only to public-sector employers, and administrators aren’t
required to follow guidelines that the law ordered a state commission to draft by March 2015. Instead, they’re incentivized
to do so in exchange for immunity from potential lawsuits.
SHRM on global approaches to workplace bullying laws
Putting workplace bullying and the law in an
international context, Ellen Pinkos Cobb, a Fellow of the U.S. Academy on Workplace Bullying, Mobbing, and Abuse created by the Workplace Bullying Institute and the New Workplace Institute, contributed a piece to the Society for Human Resource Management examining the enactment of workplace anti-bullying legislation in other nations:
The legal picture looks different in other parts of the world. Under workplace health and safety legislation,
employers in most countries have a duty of care to provide a safe work environment for employees.
...Whether referred to as moral harassment, psychological violence or
mobbing, many European countries have enacted laws prohibiting this conduct in the workplace, including Denmark, Finland,
France, the Netherlands, Norway, Serbia and Sweden.
provinces such as Ontario have also imposed obligations on employers to protect workers from psychological harassment in the
...With Australia’s introduction
of the anti-bullying jurisdiction of the Fair Work Commission on Jan. 1, 2014, a worker in Australia who reasonably believes
he or she has been bullied at work may apply to the Fair Work Commission and, if an investigation determines that workplace
bullying has occurred, be entitled to a remedy.
Forbes.com on VitalSmarts workplace bullying study
Naomi Shaven, writing for Forbes.com, references David Maxwell, management consultant and co-founder of VitalSmarts, on the contemporary look of workplace bullying
and a new survey done by his firm:
Over the years, he developed a particular interest in
workplace bullying – where it was happening, how it was changing, how it affected productivity and efficiency in the
office – and this morning, VitalSmarts released a new study on the phenomenon by Maxfield and coauthor Joseph Grenny.
Researchers looked at the responses of 2,283 people,
and the results surprised even Maxfield: “96% of respondents say they have experienced workplace bullying.” “89%
of those bullies have been at it for more than a year.” “54% have been bullying for more than five years.”
“80% of bullies affect five or more people.”
...All too often it is the industry itself that inadvertently fosters bullying. “Silicon Valley has masters of
sarcasm and irony,” Maxfield says, observing that cruel jokes can feel like a punch in the gut. He also cited the health
care industry and the “intimidating physician” problem.
The Guardian on workplace bullying
Jana Kasperkevic, in a piece for The Guardian, reports on the VitalSmarts study and efforts to enact Healthy Workplace Bill, while observing this about workplace bullying:
Those studies and surveys, when taken together, cast light on the surprising dynamics of bullying –
the belittling, reputational attacks, gossip and elbowing that make many modern workplaces unbearable.
Here's what the studies show: bullying is not random. It has reasons in
the bully's mind, even if those reasons are unfair, skewed, and informed by their personal insecurities. That bodes well for
handling bullies, in the workplace or elsewhere, because it means you can address the root causes – and it's absolutely
essential to stand up for yourself, because bullies tend to prey on those they perceive as weak, and they have lasting power
in the office. They tend to drive better workers away to remain the last man (or woman) standing, and they tend to turn on
not just one person, but several at a time.
Op-ed: Workplace bullying: Isolating, devastating
| March 19, 2014
you knew that 900,000 Connecticut residents experienced a particular problem at work, wouldn’t you want to fix that problem? That’s how many workers
in our state have experienced abusive conduct on the job.
There are problems great and small, global and local. But when you are the target of a bully, the problems are so personal
and isolating that a wider world ceases to exist. My friend Marlene was a conservationist, a birdwatcher, a lover of literature and film, an enthusiastic cook, a traveler, a scientist—but
once the bully had hold of her, a suicide.
Her death catapulted me into a movement, founded by the Workplace Bullying Institute, to try to stop workplace bullying. I discovered that workplace abuse was
not illegal unless the campaign of destruction was directly related to the protected status of the person being bullied. If
the bully did not harass the target because of race, religion, sex, age, and so forth, it was legal conduct.
Public policy dictates that we make sure our citizens are healthy. We want people
employed, and we want businesses to thrive. An unhealthy workplace, in which one person can shatter lives without remedy,
makes no sense. Thirty-five percent of American workers have experienced abusive conduct at work. Fifteen percent have been
affected as bystanders. Bullying causes absenteeism, lost profits, untold stress upon families and sometimes death.
Connecticut Healthy Workplace Advocates worked with (now retired)
Sen. Edith Prague and Rep. Kevin Ryan when they were co-chairs of the Labor and Public Employees Committee. We proposed a Healthy Workplace Bill that would allow a private right of action for abusive conduct in the workplace. Since 2006, the Connecticut General
Assembly has seen workplace bullying bills but has acted on none.
The time to enact the Healthy Workplace Bill is here. It has been introduced in 25 states. Far from being anti-business,
the bill is an answer to a problem for businesses. In anti-discrimination legislation, the company is the one on the hook.
In the Healthy Workplace Bill, the company is only responsible if it turns a blind eye. If it takes steps
to correct the situation, the company can avoid litigation and perhaps save itself from a destructive workplace culture. Good
policy is the point of the law.
Workplace bullying is
like domestic violence. It is daily terror, waged in the form of verbal abuse, intimidation and work sabotage. Unlike domestic
violence, in which victims are mostly women, workplace bullying has a growing number of male targets. Anyone can be a target,
and no one is ever prepared for it.
The Healthy Workplace Bill is sound legislation. In an age where many people are skeptical of further government regulation, concerned it will
discourage employers, states have been tiptoeing around “the business lobby.” In this situation, the state ignores
the risks of workplace bullying at its peril, and so do businesses. The Healthy Workplace Bill takes a balanced approach.
As a professor watching my students enter the workforce, as
an advocate for healthy workplaces, and in memory of my friend, I want to see the HWB passed. Let’s get to work!
Katherine A. Hermes, J.D., Ph.D., is a professor of history at Central Connecticut State
University and volunteer co-coordinator for Connecticut Healthy Workplace Advocates, Torrington, CT.
Population of workers in CT derived from Census: http://quickfacts.census.gov/qfd/states/09000.html]
Workplace mistreatment and office bullying contributes to employer losses
of more than $4bn in annual absences, including in workers’ comp and disability insurance, a new study suggests.
According to researchers at the National Institute of Occupational Safety and Health
, bullying accounted for 5.5% of sickness absenteeism in 2010. That translates to higher workers’ comp costs in an environment
already wary of additional risk.
Researchers noted that workplace bullying, which could include insults, intimidation,
withholding information or gossiping, often causes anxiety, stress, depressive symptoms and even post-traumatic stress disorder
in affected workers.
“Furthermore, as exposure to bullying increases, the risk of depressive symptoms also
increases,” the study found. “Besides targets of workplace bullying, employees who observed workplace bullying
have also reported stress and anxiety.”
All told, office bullying was associated with a 42% increase in the
number of missed workdays and resulting workers’ comp claims.
Tim Davis, sales manager for the workers’
comp wholesaler Insurance Shop, said insurance carriers have not yet begun addressing bullying in education and training services.
“It wouldn’t shock me if this was to become a more common underwriting question, though, especially in
workplace environments where bullying could occur,” Davis acknowledged. “I think the biggest challenge will be
for agents to identify those industries in which bullying is a problem and provide insureds with education on the problem
and what might be done to mitigate some of those issues.”
According to the study, women were more likely
to file workers’ comp claims relating to office bullying than men. Workers in protective services community and social
services, and healthcare support occupations also reported higher occurrence of mistreatment, with an average 17.8% reporting
On the opposite end of the spectrum, just 3.5% of workers in architecture and engineering; life, physical
and social science; and business and finance reported missing work or filing workers’ comp claims in response to office
Davis believes that market conditions will soon supply agents with education resources to combat these
“It’s too early to make substantial decisions, but with the market the way it is currently,
carriers are considering every aspect of risk analysis to determine whether they want to write workers’ comp,”
Poor Employer Reactions to Abusive
Workplace Bullying Trigger 93% Public Support for New Law
Results of scientific 2014 WBI U.S. Workplace
Bullying Survey shows epidemic prevalence. Despite this, employers fail to protect targeted employees, resulting in nearly
unanimous support for creating a new law.
Sacramento — Feb. 25 —
The Workplace Bullying Institute (WBI) defined workplace bullying as “abusive conduct that is threatening, intimidating,
humiliating, work sabotage or verbal abuse” in its 2014 national survey. Key results: 27% of all adult Americans have
directly experienced it, 21% have witnessed it, 56% of perpetrators are bosses. Since WBI introduced workplace
bullying to the country in 1997 public awareness has risen to 72% according to the new survey. Despite this awareness, employers
do little to stop workplace bullying. The majority (72%) of employers reacted to complaints in inappropriate
ways: 25% did not investigate, 31% either discounted it as not serious or considered it routine, 11% defended bullies, and
5% actively encouraged the abuse. “Unfortunately the victims of this serious health-harming
abuse are the ones asked to stop it,” says WBI director Dr. Gary Namie, “If there were a law as in Canada and
other industrialized nations, employers would have to protect workers.” According to the survey
an overwhelming majority of Americans (93%) supported enactment of a new law that would protect all workers from repeated
abusive mistreatment at work. Only 1% strongly opposed such a measure. “Because of the strong
public support and the stories from California citizens, we are seeking sponsors in the legislature now” says The California
Healthy Workplace Advocates, Carrie Clark and Michelle Smith, State Coordinators to enact the anti-bullying Healthy Workplace
Bill. “This year could be a breakthrough year for us.” WBI commissioned
Zogby Analytics to conduct the survey of a national representative sample of all adult Americans (MOE ± 3.2%).
The Healthy Workplace Campaign is a national initiative to enact state laws to
address abusive conduct in the American workplace. State Coordinators form a network of volunteer advocates. To date, 26 states
have introduced a version of the model legislation, the Healthy Workplace Bill. www.healthyworkplacebill.org www.bullyfreeworkplace.org To contact the California Healthy Workplace Advocates,
please email email@example.com.
Bigotry and a Bill to Prevent Picking on All Personnel
Unless bullying involves discrimination, it’s mostly legal to be a jerk at work. Some are trying
to change that.
Culture is a powerful force, especially
in the workplace.
In the right setting, high-stress, high-profile
workplaces such as hospitals, law enforcement offices and professional sports teams can promote a culture of camaraderie and
teamwork while producing positive results. However, big egos also can quickly reign supreme, leaving an environment ripe for
intimidation and bullying. With no laws specifically preventing workplace bullying — unless the conduct involves discrimination
— it’s legal to be a jerk at work, experts say.
culture likely played a role in a recent high-profile bullying case that became national news with the National Football League’s
Miami Dolphins. In midseason, offensive lineman Jonathan Martin unexpectedly left the Dolphins saying he was being harassed
by teammates, including fellow lineman Richie Incognito.
to news reports, Martin was called a “big weirdo” by teammates and among other things was pressured to pay $15,000
for a trip to Las Vegas he didn’t attend.
But the most unnerving
form of bullying reportedly came from Incognito, who allegedly sent him expletive-laden text and voice messages using racial
slurs (Martin is biracial). In mid-December, Incognito agreed to a paid suspension ending his season, and the NFL’s
investigation into the situation was still ongoing at deadline.
former NFL players and coaches said Incognito’s actions were simply part of the locker room culture in professional
football. But to employment law experts, the legal implications of this form of bullying are pretty clear — even though
the wider framework of how workplace bullying is treated under law can be somewhat gray.
Because Incognito’s alleged messages included racial slights, his actions could bring legal liability
under Title VII of the Civil Rights Act of 1964, said Cheryl Wilke, capital partner at law firm Hinshaw & Culbertson.
Wilke, who runs the firm’s Fort Lauderdale, Florida, office, said
any form of bullying that deals with race, sex, age, gender, disability, religion or national origin is grounds for legal
action. Any other kind of bullying is probably legal, she said.
case law shows that the line determining harassment of a protected class can be somewhat faint. In Morris vs. City of Colorado Springs, for instance, a female nurse sued her
employer for sexual harassment under Title VII. Wilke said a male surgeon allegedly flicked the nurse’s head with his
finger on two occasions, tossed heart tissue at her in the operating room and made demeaning comments implying she was incompetent.
The 3rd District Court of Colorado ruled in 2012 against the nurse,
holding that her lawyers failed to establish the alleged harassment as “sufficiently severe or pervasive.”
The 10th Circuit Court of Appeals in Denver confirmed the decision,
saying the surgeon’s conduct was “juvenile” and “perhaps independently a tort,” but that it
didn’t alter the terms and conditions of the nurse’s employment.
Conversely, in Passananti
vs. Cook County, a female employee of a sheriff’s department sued her former employer for sexual harassment, alleging
that her male supervisor repeatedly called her a “bitch” in front of other employees. She also claimed the male
supervisor falsely accused her of having sex with a prison inmate.
7th Circuit Court of Illinois ultimately ruled that the word “bitch” retains a sex-specific meaning, and that
the supervisor’s false accusation about the female employee’s sex life supported the notion that he used the word
in a sex-specific manner.
“If all they would have done is
make Jonathan Martin pay for doughnuts and they got up and left when he came to the table … that would have fallen
under the Morris case,”
Wilke said. “But at the point that they use the N-word, it switches over to the Cook County case, because now you’ve
brought race into it. ”
Although grounds for legal action
with a protected class are somewhat clear, actually winning a lawsuit rests on the degree to which a plaintiff can prove the
offensive conduct has created a hostile work environment, legal experts say.
Scott Watson, co-managing partner of the Chicago office of law firm Quarles & Brady, said the standard
usually held by the courts is “fairly high” in determining a hostile work environment. According to the corresponding
section of Title VII, the conduct has to be “unwelcome and offensive, and has to be severe or pervasive.”
“They have to show that no reasonable person could be expected
to remain employed in that environment,” Watson said. “But it always has to be tied into one of the discrimination
laws to come back to their race or their religion or their gender.”
David Yamada, a law professor
and director of the New Workplace Institute at Suffolk University Law School in Boston, is working to change that. As the
primary author of the Healthy Workplace Bill, Yamada aims to set a framework for legal action on workplace bullying outside
of the protected classes.
His bill, which has yet to be adopted,
would provide a “private right of action for someone who can show that they were intentionally subjected to an abusive
work environment,” Yamada said. “It also holds employers liable for that behavior, while building in some defenses
for them if they can show that they acted preventatively and responsibly toward bullying at work in that particular instance.”
An example: A superior might intentionally provide a subordinate with
so much work knowing that he or she would not be able to handle it.
In isolation, this event would hold little water,
and therefore would not be applicable under Yamada’s anti-bullying bill. But if the conduct were orchestrated and sustained,
it could be grounds for legal action.
So far employment law experts
say broadly trying to define bullying outside of protected classes might prove difficult.“We’re talking about
a term, ‘workplace bullying,’ that 15 years ago wasn’t even in the employee relations vocabulary in the
United States,” Yamada said. “We’re just starting to become aware of the fact that this is an identifiable,
discreet form of mistreatment.” Frank Kalman is a Workforce associate editor. Comment below or email firstname.lastname@example.org.
The Shutdown Is Workplace Bullying Gone Wild
challenge today is to explain how Congress evolved into our national nutcase." So says Gail Collins, in her excellent New York Times piece "Congress Cracks Up."
I'm not sure how many ways I can say I agree with Mrs. Collins,
but suffice to say, I agree. Some of the members of the 113th Congress are acting probably more irrationally than any we've
seen in decades. But, from what I see and what I've learned over the years, I'd say they aren't acting just like "nutcases,"
they're acting like what they are... workplace bullies.
October of 2012, I wrote a piece on The Huffington Post, called "Who Did You Bully Today?" In it,
I listed types of adult bullying that are not only getting in the way of efforts to keep kids from brutalizing each other,
but are actively giving these kids full on bully lessons. Among the groups I listed was the United States Congress.
This is some of what I said then about our elected
There are some
great politicians out there, dedicated and devoted to the public good, and many are active supporters of violence prevention.
But, as a group, "hired" by us to work together in essentially a two-party system, they would earn a great big "dysfunctional"
label and earn it easily...
I'm hoping they'll gaze into their collective
mirror and look at what's not working in their own halls. I think many of them would like to see more civility in the process
I still await this civility, and have a feeling I will be "awaiting
this civility" for a long time. We currently face a government shutdown and the tactics being used by the "shutdown"
gang are textbook bully tactics.
Here's what I've learned
about the types of workplace bullies from years of working with our Waitt Institute for Violence Prevention partners, Workplace
Bullying Institute founders Drs. Gary and Ruth Namie, and from studying the work of the late workplace bullying activist Tim
The first four types come from the Drs. Namie, and the last four come from Tim Field
if the behavior of our people on the Hill doesn't sound like the types of schoolhouse nemesis we've all faced.
1) The Screaming Mimi --
These are the specialists in "the outbursts." Some of the rants are well timed, and some are just uncontrolled.
Either way, it's not the most effective tactic, although they rarely know that. They're the classic "slam them into the
locker" types.They tend to lose their temper at each other and sometimes the host in double screened news show interviews.
It's fun to watch for a few minutes, until you change the channel because really nothing of value is being heard or said.
2)The Constant Critic -- Haven't
we all experienced the "know it all"? They rarely know it all, but they'll let you know they do, both on the floor
and on the networks. Like Downton Abbey's dowager countess, "I am never wrong," and
the elementary school tattle tale, it's always someone else's fault. Always.
Snake -- I like to think of these folks as the "divide and conquer"
champions of the playground. The "enemy of my enemy is my friend" tactic is at work here. Backstabbing is their
game and they do it well.
4)The Gatekeeper --
This one is my personal favorite when it comes to Congress. If you can't do something yourself, then keep someone else from
doing anything at all. Obstruction, obstruction, and more obstruction. Nothing gets done, and they like it that way.
5. The Attention Seeker -- The "grandstanders"!
The speech makers that everyone starts to tune out are in it for themselves. They love the attention, they love the press,
they love to be noticed. They're the class clown with a mean streak, and the show off that no one likes. They don't play well
with others, because it's all about them.
6. The Wannabe -- These
are the Hill dwellers who just aren't very competent. Knowing this, they'll make sure others look as clueless as they are.
It keeps the focus off their deficiencies. If little Johnny isn't the best student in class, he'll make sure little Susie
and little Bobby look worse than he does.
7. The Guru --
In their minds, they are above all criticism and above reproach. They may be experts, but in their minds, they're the only
experts. Possible "teacher's pet." This is the kid with their hand raised-all the time.
8. The Sociopath -- This is the most dangerous type
of bully, with no empathy, no loyalty, no bonds. Like many sociopaths, they are master manipulators, and can be charming in
getting to their goal, which is always to look out for themselves. Period.
And we want our children to stop bullying each other? Ms. Collins asks in her excellent piece,
""So, what do you think is wrong with these people?" I would simply answer, see above.
From David Yamada's Blog 9/9/2013
Why targets of workplace bullying need our help:
A rallying cry from the heart
Early Monday morning,
a reader of this blog left a comment that specially captured what workplace bullying can do to an individual
and why targets need help from family, friends, co-workers, and advocates who are not in harm’s way. Her comment starts
with an explanation for why she hasn’t posted more responses to blog posts and commentaries about workplace bullying,
mobbing, and abuse, then goes into a more general description of how smart, independent, resourceful individuals can
be rendered powerless in the face of sustained, continuing mistreatment.
I shared this comment on Facebook, and the response was overwhelmingly positive and supportive of the sentiments and
insights expressed by this writer. I decided that her words should be highlighted for readers of this blog, not merely tucked
into a comment to another post.
I’m sharing it below
in its entirety, with a few very minor edits and typo corrections, and with deep thanks to this reader, Lilydalelah, for her
courage and eloquence. Under her comment, I’ve included the responses that were posted.
Let this be a rallying cry from the heart. Here goes:
Some targets may consume
and be affected or comforted by info that strikes a chord, but are either still silenced (for a variety of reasons), struggling
to find their “voice” again, or may be dealing with the fear of opening a floodgate.
I, for example, find posts, articles, and research studies all the time
that I would love to respond to.
I often begin
writing, and find I have written nearly a book by the time I am through. Too long and tangential to post, but too painful
to proofread, edit and reorganize, I end up throwing the un-posted draft info my notes, and exasperated by the “reliving”
of the trauma during the writing, I force myself to shift gears and just give up on whatever I was trying to say.
I find it nearly impossible to write a brief comment, instead, tangentially
spilling the endless intertwined tornado of horrors.
In my case, it is a trauma that I cannot escape, as despite my best efforts, defense mechanisms, and sacrifices, the
trauma keeps escalating, despite my job ended almost 3 years ago. However, the stalking, threats, harassment, and so much
more, continue in a terrifying smear-campaign, via cyberspace, involving impersonation of my identity, and technical tactics
tweaking search engines to keep the lies and fabrications of me as “crazy” and “a threat” discoverable…
I find so much I want to reply to, and
resources to reach out to, but don’t know even where to begin.
The learned helplessness stage is so crippling. I am not sure how or if many voices can be still heard
once the abuse goes on for so long, and becomes so all-encompassing.
With an unimaginable plethora of losses to acclimate to, and to mourn, plus fears of present and future
we are saddled with, the oft seemingly-hopeless efforts, to grasp for a even a thread of hope, that anyone still cares, or
that a future is even still possible, and the mounting stress of becoming more aware of the degree of danger we are in, the
healing cannot even begin, until escape and safety is achieved.
I think that those with the most to say, are the targets most silenced.
Ones that escaped the workplace mobbing, by becoming too ill to work, only to find they are dragged
into a whole new cycle, of becoming a target of a bully-turned-cybercriminal, becomes totally devastating to every aspect
of a target, and the death of all hope of being able to pick up the pieces, and move on to heal someday.
I think it is probably why so many targets of mobbing die within a
few years of “escaping” the abusive workplace. Only we never (or rarely) hear from these targets to even know
what became of them.
Most are isolated, even
by those who supported them, as the strain continues and becomes too much for supporters.
As for anyone else who could have helped, these targets are written off as “crazy”
and not many help-resources see through to the “normal” person who is suffering a “normal” reaction
to an abnormal, ongoing trauma.
By this stage
in this multifaceted, multiple-cycle process of destroying the target, at work, then in every facet of life via online tactics,
severe mental injuries like cPTSD [ed: Complex Post-Traumatic Stress Disorder], and various systemic physical illnesses result, and also cause
targets to isolate and be silenced. The ailments caused or exacerbated by years of fight/flight stress, will probably kill
the target soon, if target is not first driven to end it sooner, to escape the daily fear and continued torture of what I
guess most closely equates to being buried alive, and then forgotten about, by anyone who once cared.
The suffering that overtakes the target, every waking moment, becomes
so intense, as escape inevitably becomes impossible, so one begins to hope, instead, for the air to run out quickly so the
pain will end.
I am sure that sounds “crazy”
and will likely be circulated as “proof” of this rumor, but I am just going to hit “post” without
proofreading, or this will become yet another draft to add to my collection of things I hoped to say someday.
My point is simply:
We are too far-gone, exasperated, terrified of retaliation, or even fear physical assault plus the
many other risks we now bear from what was maliciously and permanently put online to smear us. We are sick, in pain, and are
probably very isolated.
We have often become hopeless,
after years of coping and clinging to an inner strength, that is now gone.
Some of us are dead. Others may soon be.
Thus it is hard for targets of these most severe and ongoing forms of workplace bullying, cybercrime and
mobbing, to actually respond to valuable, insightful posts.
But I think we are reading, and learning from the experts. Some of us consume information continually, and have so much
we want to say in response.
Yet some of what we learn,
frightens us even more, since depending on the situation, for some, there is no way to stop it. We spend stretches of time
in avoidance, finding ways periodically to dissociate from the horror, but that reality lf the nightmare eventually engulfs
us again. We can never hide from it for long, particularly when a bully resorts to cyber-tactics, to ensure no escape, healing,
or future employment is possible.
We learn that
as bad as it all has been, indeed it can, and likely will, get worse.
We remember in earlier stages, when we read of the cycle, and the stages ahead, and thought: “what
happens to ‘most targets’ can’t possibly happen to me.”
And then it did.
Despite the knowledge, and every effort to prevent it, we were dragged helplessly through the cycle, and beyond.
We need support, and help from others, because our
own (typically strong) abilities to cope, are now depleted.
We need advocacy, major legal changes, and awareness by others, so we are not inadvertently “re-victimized”
by societal ignorance.
Our usual resourcefulness
and ability to land on our feet, is no longer, as the damages progress. It always seems the road to solution is so close,
yet for us alone, remains perpetually just out of reach.
Several readers responded to this comment:
Al Thomson says:
Lily speaks for all of us. It’s hard to defend one’s
self after a psychological beating. We can ruminate and relive the events and outcome endlessly in a quest for closure that
simply never happens, though we keep on hoping. I want to shed my status as a victim, at risk of being seen as a gadfly or
nutcase, in the same hope. I thank her for sharing. I’ve had the good fortune to experience therapy that helped me view
the situation objectively, as in a movie. Panic attacks are like hurdles on the way, each time I speak out. It may well be
a false hope to pursue more creative ideas, but continue to do so. I know PTSD will likely be with me the rest of my life
and somehow feel inspired to express the traumatic experiences in different ways, always hoping that one more person will
understand, or that it may help someone else. I thank you and appreciate every word you said.
Lily, your post is most eloquent in conveying why those who are targeted often
can’t help themselves. I teach about workplace bullying to union representatives and this is a concept I try to convey.
They often say to targets that “if you won’t file a grievance, I can’t help you”. I know how damaging
this is to a target like yourself hanging on by your fingernails. We have come up with another approach to a toxic workplace
that unions can use while keeping the targets anonymous and safe. It’s something I learned by the school of hard knocks.
Thank you for your powerful words. I will be sharing them with my classes in the future if you don’t mind.
Been There says:
Lilydalelah, there is nothing “crazy” about what you say and
you are not exaggerating about targets dying. A woman in her early 50s who worked where I did was bullied into quitting. A
few months later she had a heart attack and died. Another woman, of the same age, at the same institution, was bullied and
either quit or got fired. A couple months later, she suffered a stroke and lost her ability to speak. I don’t know what
happened to her.
There were many times I felt as though my heart was going to squirm out of my chest. The chest pain would last for weeks,
not hours, not minutes, not days. It was perpetual. If I had started out with any kind of risk factor, I’m sure I’d
be dead too.
Presenters From 2013 National Educational Conference On Workplace Bullying & Health And Safety 7/27/2013 San Francisco
http://www.youtube.com/watch?v=nobmr8XsxiQ (Preview) Kathleen Carroll,
Kenneth Martinez-Gomez, Derek Kerr
http://www.youtube.com/watch?v=wu9ll2HLays (Preview) Karen Snyder
Bayard Fong, Sean Gillis, Sylvia Lynch
Stop Workplace Bullying Group
Public Workers For Action
California Healthy Workplace Advocates
July 29th, 2013 95,000 CA State workers owed Dignity Courtesy and no workplace bullying...CLICK HERE!! _____________________________________________
On April 15, 2013 Steve Zeltzer organized a rally at which S.F. City workers spoke. Most were whistleblowers who have been
retaliated against for their integrity. Hear Carrie Clark, State Coordinator for California Healthy Workplace Advocates [at
the 29:00 min. mark] and Dr. Gary Namie, Director, Workplace Bullying Institute [at the 13:33 min. mark]. CLICK HERE
During the past 15 years, I've become familiar with hundreds of personal stories
about severe workplace bullying. I've seen, over and again, how bullying targets often face multiple challenges in terms
of understanding and responding to their situations.
Many bullying targets go through
similar stages on their path to a better place: Recognition, response, recovery, and renewal. Here are some brief
thoughts on each:
bullied at work can be a shock to the system. Especially if the bullying is more indirect, simply figuring out what's happening
can be a maddening challenge. "I didn't know what hit me" is a common refrain from targets.
The term "workplace bullying"
is gaining wider recognition, but many who experience it were not familiar with the term beforehand. For these people, there's often
a "shock of recognition" that occurs when they, say, stumble upon the website of the Workplace Bullying Institute or this blog. For many, discovering the term "workplace bullying"
is a revelation, one that validates their experiences and impressions.
Processing this experience and its effects on one's health
and employment may take time, reflection, study, and perhaps professional help -- even while the bullying behaviors themselves
continue and even escalate.
The next step is to address the bullying itself. In this short
post, I won't attempt to discuss all the options and their limitations, but they range from internal reporting, to filing
a legal complaint (though in the U.S., such possibilities are limited), to leaving the job. Unfortunately, the latter
too often remains the most viable option in terms of removing the threat to one's well-being.
There is no singular, "one size fits
all" approach, so be wary of advice that suggests so. But do assess your options with the growing number of useful resources
(see below) available to you.
Workplace bullying can exact a heavy toll on one's mental and
physical health. If you are in this position, then recovering your health is a critically important stage.
If you're currently a bullying
target, you need to address any health problems as they arise and to engage in whatever safe coping strategies may be available.
As far as genuine recovery goes, it's awfully hard to enter this stage until the threat is removed. Recovering from bullying
while you're still experiencing it is next to impossible.
Once you're away from it, however, the process of healing can begin. It may
be longer or shorter in duration. If, for example, the bullying has triggered clinical depression or symptoms consistent with
Post-Traumatic Stress Disorder, this may be a longer term process. In any event, some combination of self-help
and professional assistance may be useful.
"Moving forward" is another phrase that
rolls easily off the tongue, while in reality it often presents significant challenges.
It may mean getting another
job or even searching out a new livelihood. And in many cases it will mean finding ways to deal with recurrent feelings of
anger, fear, and resentment. This often is an ongoing process, rather than a sudden point of being "over it."
That's why for many people, these stages can overlap, with hopefully less of the bad stuff and more of the good stuff becoming
prevalent over time.
Ultimately, though, people can and do find their way out of the darkness. In
talking to targets of severe workplace bullying, I find that many were able to summon reserves of strength and resilience
they didn't know they possessed. These qualities led them to better places in their lives, away from the abuse that so undermined
A 5th "R": Resources
The best overall self-help resource remains Gary and Ruth Namie's The Bully at Work(rev. ed., 2009). Written in a straightforward, supportive, and conversational
tone, it delivers a ton of information and insights about workplace bullying and useful advice. Some of this material also
is available without charge at their Workplace Bullying Institute website. WBI's professional coach, Jessi Eden Brown, offers short-term phone coaching to bullying targets for a reasonable fee.
In addition, I've collected various
resources and posts in the Need Help? section of this blog, including a variety of blog posts that may be useful
for targets assessing their options.
Some real “job killers”: Executive
salaries, bullying managers, health care costs, and demanding stockholders
The Chamber of Commerce and other powerful trade organizations are fond of using the
term “job killer” to denigrate virtually any proposed legislation or regulation that protects workers, consumers, or
the environment. They claim that costs of prevention and compliance drain monies that otherwise would be used to create
Sort of true, but not really
Technically, perhaps they can make a case: If one assumes
there’s a fixed pot of money marked “for wages, salaries, and benefits,” and the costs of complying with
pesky labor, consumer, and environmental protections must come out of that pot, then I suppose the regulations can be called
But one does not have to be a corporate accountant to know that organizational budgeting doesn’t
work that way. The costs of social responsibility can come out of other buckets of money as well.
take a look
In any event, in the interest of fair play, let’s consider an alternate list of job killers:
Executive salaries — Exorbitant executive salaries and accompanying
perks surely kill jobs, especially when the high pay isn’t merited due to poor performance. A mediocre CEO earning
$300,000 is just as good as a mediocre CEO earning $1 million, except that with the $300,000 CEO, there’s another $700,000
left over to hire more workers.
Bullying managers — Workplace
bullying increases employee attrition, absenteeism, and health care costs, while driving down employee morale and productivity
— all of which have negative bottom line impacts. In the U.S., the significant majority of workplace bullying is perpetrated
by managers and supervisors.
Health care costs — Attempts to
create affordable, quality health care for all are continually thwarted by corporations, insurance companies, and pharmaceutical
companies that lobby Congress and state legislatures and form political action committees to reward their friends in elected
Demanding stockholders — Stockholders who pressure
corporations to post sky-high profits rather than reasonable ones are, in essence, drawing from monies that could be used
to hire workers and pay them a living wage.
It’s not quite so easy
Okay, I admit, it’s
more complicated than that. The business, labor, and regulatory climate in the U.S. is multifaceted, to say the least.
Fixing unemployment and a huge earnings gap, among other things, requires more than serving up competing bullet
But if we’re even going to consider the claim that safeguarding workers, consumers, and our planet kills
jobs, then at least let’s look at other major factors that curb job creation and preservation.
Bullying a problem within county government, Ventura County
for bottom line
When push comes to shove, workplace
bullies are costing the company money. And that's a good focus when dealing with them.
As a species, it seems we're doomed to interact with jerks.
It happens in high school,
and we think, "Once I get to college, things will be different."
Then it happens in college, and we think,
"Once I get a job, people there will be more mature."
so much. Jerks abound, and, as fate would have it, the workplace is as much a breeding ground for bullies as the playground.
much has been done in recent years to address bullies in the schoolyard, the issue of bullying at work remains largely under
the radar. In fact, because of a work culture that often rewards aggressiveness, bullies have a nasty tendency of succeeding
"This is one of the great undiscussables in the American workplace because it seems if you haven't experienced
it, you're likely to believe it doesn't happen," said Gary Namie, a social psychologist and co-founder of the Workplace
Bullying Institute. "What we're seeing is a lot of abusive conduct, but it's accepted as routine in the American workplace."
year, Namie commissioned the polling group Zogby International to survey U.S. workers. The research found that 35 percent
of the country's workforce has experienced bullying on the job, and another 15 percent has seen it happen.
50 percent of respondents had neither seen nor experienced bullying, a statistic that Namie said makes it hard for some
to relate to the problem. He calls it a "silent epidemic."
"So often in the workplace the feeling is,
'Hey, you're an adult, handle it yourself,'" Namie said. "They sometimes even blame the victim. But you know what?
We said that for domestic violence for a long, long time until they criminalized it. So people need to stop the silly rationalizations."
be clear, "workplace bullying" doesn't apply to acts of violence.
"What separates bullying from workplace
violence or harassment is the fact that the bullying is something that's done on a continuous basis," said Timothy
Dimoff, founder of SACS Consulting & Investigative Services, an Ohio-based company that specializes in high-risk workplace
and human resource issues. "It's constant and repetitive; someone who's using different means of harassment, whether
it's complaining about the person, spreading rumors, blaming them, encouraging others not to talk to the person. It's more
psychological and emotional abuse."
Think about your workplace, and there's a good chance you've seen this or
dealt with it. In the most severe cases, a manager tries to sabotage an employee by taking credit for work or writing a
negative performance review. More routinely, a co-worker or manager picks away at an employee, making cracks about them
in front of other people, demeaning them even in subtle ways.
This behavior may seem routine in a world of snarkiness,
but when it happens day in and day out, and when the targeted person feels unable to fix the situation, it can lead to serious
physical and mental health problems. Consider how difficult it might be, particularly in this job market, for a victim to protest the way a manager
is treating them.
"Many people nowadays feel really locked in," Namie said. "Like there's no escape
route, and that just makes the situation worse."
The fact is, some folks will find themselves in situations where
the only way out is to quit. That's obviously a worst-case scenario, but if a bully is making your life so miserable it's
affecting you physically and mentally, you've got to cut ties and take care of yourself.
Before that, however, there
are steps you can take to try to put the bully in his or her place.
"They need to take it to their human resources
person or their immediate supervisor," Dimoff said. "If they don't get any results, then they need to go to somebody
higher. In the meantime, they need to document when these things happen, where they happen and what was said and done. If
they don't write it down, it's hard to remember details, and things get distorted. When management sees an employee come
in with this in writing, they react much more quickly and thoroughly to it."
Namie suggests that the target
look for ways to quantify the harm a bully is causing a company. How many people has the person driven away? How much work
time is eaten up contending with problems relating to the bully?
"You want to be able to tell the executives that
the bully is too expensive to keep; actually present the business argument that the bully is too expensive," Namie
said. "What can discredit the person who is the target is emotionality. The emotionality is scary to management. So
you make a dispassionate argument."
Of course, management is, or should be, responsible for creating an environment
that repels bullies.
"The company needs to have policies and procedures against bullying and workplace violence,
and they need to let those procedures be very well known to their management and employees," Dimoff said. "Companies
need to work on creating a more positive culture. In positive cultures, we don't see the bullying. People work together
and don't resort to negative tools."
Namie's Workplace Bullying Institute is pushing a Healthy Workplace Bill,
which is being considered in 11 states, that would crack down on office bullies and clearly define what it means to have
an "abusive work environment." You can learn more about the bill at healthyworkplacebIll.org.
final point: If you think a bullying co-worker is trying to make you a target, be proactive.
Bullies, at the end of
the day, are cowards. They feed off people who put up with their abuse. So the moment someone begins to pick at you, stand
up to them. Let them know you won't tolerate improper treatment.
The alternative is to let it go, and that's almost
guaranteed to not end well.
Talk to Rex: Ask workplace questions—anonymously or by name—and share stories
with Rex Huppke at IJustWorkHere@tribune.com, like him on Facebook at facebook.com/rexworkshere and find more at chicagotribune.com/ijustworkhere.
Harvey Mackay: Work place bullying
is no bull
Sep 04, 2011, 4:13 pm
The playground isn't the only place where
you'll run into bullies. Internet bullying has led to suicides. Office bullying is on the rise, and it's a deal-killer no
matter what business you're in.
If you think people outgrow bullying behavior just because they get older,
think again. Bullies come in all ages, shapes and sizes — and on all rungs of the corporate ladder.
bullying in the workplace is among the leading reasons for employees to seek other employment. Even more remarkably, most
don't list bullying as the reason they quit.
Instead, they suffer in silence and take their talents elsewhere.
And suffer they do. Scholars at the Project for Wellness and Work-Life at Arizona State University found that "workplace
bullying is linked to a host of physical, psychological, organizational and social costs." Their research indicated
that stress is the most predominant health effect associated with bullying in the workplace: "Stress has significant
negative effects that are correlated to poor mental health and poor physical health, resulting in an increase in the use
of sick days or time off from work."
Can any company afford that?
In a CareerBuilder survey
of more than 5,600 full-time employees, 27 percent of workers said they have felt bullied in the workplace. Most of them
didn't confront the offender or report the abusive behavior.
What form did the bullying take? Workers gave these
• Comments dismissed or not acknowledged: 43 percent.
• Falsely accused of a
mistake: 40 percent.
• Needlessly harsh criticism: 38 percent.
• Forced into doing work
that wasn't really part of the job: 38 percent.
• Held to different standards and policies from other workers:
• Made the focus of gossip: 27 percent.
• Yelled at by boss in front of co-workers:
• Belittling comments during meetings: 23 percent.
• Others taking credit
for work: 21 percent.
Does any of this sound familiar?
Management is responsible for keeping the
workplace free of sexual, racial or other forms of harassment and inappropriate behavior. If an issue is reported, reasonable
action should follow.
Unfortunately, sometimes the manager is the bully. If that manager has a manager, the
victim needs to go to that level. He or she might be doing the company a huge favor by exposing the reason so many good people
in that department are heading for the hills.
The victims of bullying have to take responsibility it's not safe
to assume anyone else is aware of the bullying if they don't report the problem. Bullies are notoriously sneaky. They pick
and choose their targets carefully. But that doesn't mean victims are helpless.
Take charge by following these
• Recognize bullying when it occurs. Mild teasing or isolated comments, even
if they're inappropriate, don't necessarily constitute harassment under the law. Stand up for your rights by all means,
but remember that harassment is more than just unwelcome behavior. Technically, it's behavior that discriminates against
gender, race, national origin or some other legally protected characteristic.
• Study your policy.
Most organizations have written policies that don't just prohibit harassment but also spell out the steps to take if an
employee feels uncomfortable. Check out the procedures for reporting unwelcome incidents to be sure you don't miss any options.
• Speak up to the harasser. Your first step should be to tell the person that his or her
behavior, comments or requests aren't welcome. In some cases, the matter may end there. But don't hesitate to inform management
if you can't comfortably confront the other person on your own.
• Document the behavior. Take
notes describing each incident to keep details fresh in your memory. This will add credibility to your claim. And keep a
record of your conversations with management concerning the problem.
• Inform management.
Follow the procedure for reporting harassment to the proper person. Your own manager is usually the person to start the
process, but if your manager is the one harassing you, you'll have to go up the ladder to reach the right authority. Document
your efforts to report the behavior: dates, times, what was said, and so forth.
Mackay's Moral: If
you're being bullied, take the bull by the horns before there's a stampede.
Harvey Mackay is the
author of The New York Times No. 1 bestseller "Swim With the Sharks Without Being Eaten Alive."
Interview conducted by Taylor Korsak
1. Let’s begin
our discussion by defining “bullying in the workplace.” How common is it and why should it be a major concern
for company leaders?
First, let me be clear that we distinguish bullying from incivility, inappropriateness,
rudeness and disrespect. Our definition is "repeated, health-harming mistreatment by one or more employees directed
toward another employee that takes the form of verbal abuse, threats, intimidation, and humiliation, interference with work
production or in some combination." It is a form of abuse. It is recognized by the National Institute of Occupational
Safety and Health (NIOSH) as a non-physical form of workplace violence. Bullying is not merely an arched eyebrow or raised
voice, it is a systematic campaign of interpersonal destruction launched by one person, with many others soon joining in,
to destroy another person's health, status, identity, job, career, and sometimes even their family.
We know from
the national scientific studies we've run in 2010 and 2007 that 35% of all adult Americans have been directly bullied, according
to our definition.
Business leaders should care because of its impact on employee health, work productivity impaired
by excessive absenteeism, turnover (loss) of the best and brightest workers, workers comp and disability claims and litigation
expenses. They should care, but those same national surveys found that the most likely response by employers to reported
bullying was to ignore or worsen it.
2. What is the most common bully-target relationship in terms
of roles? Why?
Bullying is mostly top-down. Bullies outrank their targets in 72% of cases (2007 WBI U.S.
Workplace Bullying Survey). Coworkers are perpetrators in 18% of incidents; 10% of the time it is a brave subordinate who
bullies up the ladder.
Why? It is simply easier to inflict pain when you have title power. Coworkers can make your
life miserable through ostracism (no small thing), but they cannot threaten to take your job away as the employer can. With
so few people in unions, anyone can be fired for any reason on a whim.
All bullies share the need to control
other people. They are bright, but not introspective or self-critical and they need to dominate to feel whole. There is
an overwhelming narcissism that compels every action. Unless others agree to follow, they will be banished. Narcissism is
not restricted to any position in an organization chart.
3. What are some researched effects of bullying
and why do targets often neglect to speak up?
Bullying of adults by adults involves a great deal of shame
and guilt. Shame is the bully's goal from humiliating the target. Half of bullying is behind closed doors, so without explicitly
telling friends and family, it is the bully’s and target's secret. Personal guilt can arise because the person is
mad that she or he allowed the bullying to happen. Bullies choose their targets, methods, timing, and place, but somehow,
targets internalize responsibility, or shared responsibility (from our societal "it takes two to tango" or the
equally inane "there are two sides to every story"), for what is happening to them. Shame and guilt prevent targets
from speaking up.
In addition, the work culture is clear to those who work there. Complainers are dubbed troublemakers
and retaliated against.
Research on the effects of bullying on individuals is extensive. The studies come from the
fields of occupational health, epidemiology, medicine, neuroscience, and social sciences. A summary breaks the impact on
people into three categories of harm: health, social relations and economic.
Health harm begins with stress-related
physical health consequences. Cardiovascular system impact has the earliest onset -- hypertension. High blood pressure results
from abusive supervisors. The risk of coronary heart disease is 40% greater if workers believe their supervisors are unjust
and bullies go well beyond being unjust. Cortisol, the stress hormone, is measured routinely in studies and is found to
be too high in people exposed to unremitting mistreatment. Most fascinating is that prolonged stress ages women prematurely,
costing them 9-12 years of life expectancy, based on studies measuring telomeres -- the protective tips of DNA chromosomes.
Health harm is also the psychological-emotional impact, ranging from debilitating anxiety to clinical depression induced
by work to PTSD to suicide. Our online (non-scientific) surveys found that 39% of targets have been diagnosed with depression
and 30% of women targets suffer PTSD. Doubters don't think work can traumatize individuals, but remember bullying creates
an abusive relationship. Abuse can traumatize, not everyone, but far too many.
Harm to social relationships primarily
involves ostracism, social exclusion, by coworkers. Targets are treated as pariahs once targeted. Coworkers do little to
help - they fear for their own safety and status.
Economic harm is clear. The most effective current way to stop
the bullying is for the target to lose the job she or he once loved. According to our 2007 national study, 40% quit (probably
for their health's sake). An additional 24% were fired (by manufactured performance reports or other lies).
You draw an interesting parallel between bullying and Darwinism – the concept of survival of the fittest – stating
how certain corporate cultures designated by CEOs to weed out the least effective workers and bullying might beneficial
for such a goal. Needless to say, CEOs are often thinking very differently than others in their business – how could
an anti-bullying campaign appeal to the CEO? How should one build a case?
Yes, bullies and their apologists
are social Darwinists. The organizing principle that dominates the entire company is the CEO's narcissism. He (and it's
a "he" in 97% of firms in the U.S.) sets the tone.
Jack Welch comes to mind. He is granted hero status,
forgetting his old moniker of "Neutron Jack" who had the reputation of obliterating companies of workers.
I agree that CEOs do think differently. Welch taught his CEO colleagues to focus on shareholder value and short-term
profits. His famous strategy of firing 10% of workers regardless of performance, to keep them afraid, is simply not human.
Unfortunately, that mindset has been adopted by sheep-like Welchians. It's easy to be cruel.
Some leaders are different
people but with a personal moral inner directedness. They stand out because of their rarity. Not everyone believes treating
workers like chattel is sufficient. Some can see value in long-term viability, not simply having monotonically rising quarterly
I draw this distinction because without CEO approval (and some degree of participation), there can be no
anti-bullying initiative success in the long-run. The CEOs who have brought us in to deal with bullying fall into two categories:
early adopters and the legacy-oriented. It is counter-cultural to want to stop bullying that historically has been the characterization
of the American style of managing. Bold contrarian CEOs love to be first to adopt a new program before it becomes a fad.
Public awareness of workplace bullying has grown exponentially since we started back in mid-97 and corporate attorneys are
warning their clients to not ignore the problems bullying causes.
Legacy-oriented leaders may be transitioning to
a different post or the final phase of their careers. They want to leave behind something for which they can be remembered.
The legacy can be within the industry, among their peer CEOs or for the workers at the company they led. Their gift is to
establish a bullying-free workplace with their name attached.
Sadly, the impersonal, traditional business-case arguments
that bullying increases risk exposure and that it eats into the bottom line fall onto deaf ears. The personal bonds between
executives and their beloved bullies trump fiscal impact, though it makes no business sense. It is a world turned upside
down, driven by favoritism and ingratiation, but it is more tangible and real than balance sheets.
The ROI for an
anti-bullying program is great. But as long as "Bob the bully" is free to operate with the CEO's blessing (or implicit
approval through his indifference to complaints), stopping bullying will appear expensive when in fact it is the bully who
is too expensive to keep!
5. What are other contributing factors that could lead to a bullying situation
in terms of personality types and environment?
Most people begin with the assumption that bullies must be
crazy or disturbed. Not so. Most bullies are not psychopaths; however those who bully are certainly narcissistic. They have
an inflated sense of themselves relative to what others think, but they need not have a certifiable personality disorder.
They are egocentric and selfish though that is true of many millions of us.
Bullies are astute at reading cues in
the work environment. For instance, they see subtleties that others miss. They see that aggressive acts are noticed by management,
which, in turn, are rewarded. Sometimes the reward is a promotion though more likely it's the granting of special privileges.
Those of us who are not bullies might see it and decide that it is deplorable to take advantage of another person but bullies
see it as a skill necessary for political survival and career progress. Then, when they are aggressive themselves and reap
personal rewards for doing to, the pattern is established. It is simple learning theory -- positive reinforcement increases
the likelihood that the rewarded behavior will reoccur.
Bullying is always a mix of personality of the bully and
target and work environment. But environment is more influential than personality. Regardless of the person's disposition,
if conditions are engineered to create and sustain bullying, most employees can act like bullies at work. They do not become
bullies in other domains of their lives. At work, however, they slip into a role and follow the unwritten script. The power
of environment over personality is backed by decades of social psychological research.
6. If one
is a bystander or witness to a bullying situation, is it his/her responsibility to do something? How should he/she proceed?
We would all like to think we would jump to rescue another person in danger. A bullied target is in danger, but we know
from experience and research that others do relatively nothing. We imagine a brave encounter with the bully when the coworker
stands shoulder to shoulder with the target and counterattacks. That's myth. It happens less than 1% of the time (according
to our 2008 study).
So, why expect coworkers to help when they see a target emerge from a closed-door berating
and slip into her or his cubicle without saying a word. Social influence is strongest when situations are ambiguous or murky.
A witness can rationalize not doing anything by concluding that he was misinterpreting what he saw and that it was not his
business to butt into someone else's privacy.
You are not likely to be there during the bullying incident. The target
will describe events later. Gather all the other coworkers and establish that the response will have to be undertaken by
the group. Purposefully share the responsibility. Decide what to do together -- go two levels over the bully's head or confront
the bully in person -- and have all participate. Power comes from a unified group. Stick to holding the person accountable
because of the disruption of work, not because they have a warped personality. Make an impersonal financial impact argument
to the highest level manager you can find without accidentally complaining to the bully's relative or the boss who hired
Contributor: Gary Namie
Grand jury finds workplace bullying a problem within county government
- By John Scheibe
- Ventura County
- Posted June 16, 2011 at 5:43 p.m
The Ventura County Grand Jury recently concluded that workplace bullying is
a problem in county government offices and encouraged county officials to develop a policy against bullying in the workplace.
"Unfortunately, bullying is not limited to schools," the grand jury stated in a letter released in late May.
The 2010-11 grand jury investigated bullying within county government after getting a complaint about it. As part of
this, the grand jury interviewed past and current county employees who were the targets of bullying or witnessed it.
John Nicoll, assistant county executive officer and the director of human resources for the county, said county officials
are preparing a response to the grand jury's report.
"We understand the concerns about conduct like that in
the workplace," Nicoll said.
Grand jurors found employees "were yelled at by managers in group meetings
and in public areas."
Also, employees, including some highly experienced ones, "were excessively monitored
by managers to such an extent that they left their positions," the grand jury's report stated.
went to other agencies, while others accepted "a demotion to receive that transfer."
Others left county
government for other jobs or retired earlier than they had planned because of a "manager's bullying behavior,"
the grand jury found.
Some employees were isolated both "organizationally and physically," the report
The report found the county "has no written policy specifically directed against bullying in the workplace."
It also found that processes to report workplace bullying "are not trusted by employees because the agency with
the alleged bullying issue is allowed to investigate complaints using personnel within its own organization."
Nicoll said there are mechanisms now in place for county employees to file a complaint if they believe they have been
As to the allegation by the grand jury that county employees have left their jobs because
of workplace bullying, Nicoll said he "would be upset if someone were legitimately fleeing the workplace if they felt
they were being mistreated" and felt they had no recourse but to leave.
"We do not tolerate employees
being mistreated because they've filed a complaint," Nicoll said. "I'm disappointed if someone left for that
Nicoll said he did not know how widespread a problem workplace bullying is in the county government.
However, he said "the county has gotten very limited number of complaints of inappropriate treatment by their
The Workplace Bullying Institute, a nonprofit organization dedicated to eradicating workplace
bullying through research and education, commissioned a 2010 study that found 35 percent of workers in the United States
have experienced bullying firsthand. Men constitute 62 percent of bullies, while women make up 58 percent of the targets
of bullying, according to the study. Female bullies target other women 80 percent of the time, according to the study,
done by Zogby International. The study found workplace bullying is a silent epidemic since many workers who are victims
of it or witness it fail to report it.
The group, which is based in Washington state, defines workplace bullying
as repeated, health-harming abusive conduct committed by bosses and co-workers against others. Workplace bullying is legal
in many states across the nation, according to the institute. The institute is working to introduce bills in various state
legislatures that would make workplace bullying illegal.
The institute also found that workplace bullying costs
companies millions of dollars in employee turnover, lost productivity and lawsuits. The grand jury seemed to agree, stating
in its report that workplace bullying costs taxpayers additional money because the county must incur the cost of recruiting
and training replacement personnel for those who have left their jobs because of bullying.
To be successful in
today's workplace, employees must know how to stand up for themselves, said Barbara Pachter, a Cherry Hill, N.J.-based
business etiquette expert and the author of the book "The Power of Positive Confrontation."
someone does not speak up for themselves, the bullying is far more likely to continue," Pachter said.
standing up for oneself in a productive way means a worker must at once be assertive without being offensive, she said.
To do so, it helps to use "a lot of "I" statements, she said, as in, "I find that action or statement
offensive," rather than "you" statements, as in, "You are rude or abusive."
The grand jury
is recommending the Ventura County Board of Supervisors issue a policy against bullying and collect data "to identify
the existence and extent of bullying in branches of county government."
Such a policy should include descriptions
of bullying behaviors to educate employees on unacceptable workplace behaviors and encourage employees to report this
type of workplace abuse, the grand jury said.
State Bills Against Workplace Bullying Gain Traction
Kathie Gant knew the relationship with her new boss was bad, but she didn't know how bad until the woman, a Maryland attorney,
hurled a bundle of pencils at Gant, her administrative assistant. "You just don't sharpen my pencils for me!"
the boss raged, punctuating each word with exaggerated enunciation and the zing of a pencil across the office toward Gant.
Months later, Gant was in a storage closet in the courthouse where she worked when the lights were shut off. "I
turned toward the door and she was standing there," Gant said of the supervisor. "I tried to say 'Hey, I'm in
here!'' Her boss stared back, shut the door, and locked it from the outside, trapping Gant in the pitch-black space.
After months of taunts and needling by her boss, Gant said she ended up on a psychiatrist's couch and nearly in a psych
With a quavering voice and tearful demeanor, Gant testified about her job situation during a legislative
hearing this month at the state Capitol as Maryland became one of the latest states to consider legislation against workplace
bullying. She recounted some details later in an interview.
Progress has been slow since California in 2003 became
the first state to introduce a "Healthy Workplace Bill," which would give employees legal protection against those
they say torment them at work (The measure died in committee). Since then, 19 other states have proposed similar legislation,
though none has passed it into law.
David C. Yamada, a law professor at Suffolk University Law School in Boston
and the author of the Healthy Workplace Bill, said laws protect workers from abuse only on the basis of such things as race
or religion. Employees who do not fall into a protected category have no legal means of fighting bullying.
of legislation say employees already are protected by anti-discrimination laws and workplace rules against abusive behavior.
They also say that human resources departments exist to help employees deal with workplace problems.
If all else
fails, bullied workers can bypass their bosses and seek help from higher-ranking supervisors, said Champe McCulloch, president
of the Maryland Assn. of General Contractors and a former human resources director at Verizon.
always an internal appeals process," said McCulloch, one of three lobbyists to speak against the bill on March 3 when
it was introduced to the state Senate's finance committee. "At some point, the employee has to screw his or her courage
to the sticking post and keep escalating the complaint up the management chain. I assure you ... at the senior management
ranks, somebody is going to take action."
But proponents say that alleged bullying that may have led to
highly publicized suicides last year — including that of a 52-year-old magazine editor who accused his boss of abusive
behavior, and a 15-year-old schoolgirl who was taunted by classmates — have focused attention on the problem and galvanized
efforts to pass legislation. So, too, has workers' frustration over several states' efforts to follow Wisconsin in curtailing
the power of unions representing public employees.
While the suicide of Phoebe Prince, the Massachusetts girl,
shed light on school bullying, Gary Namie of the Workplace Bullying Institute in Bellingham, Wash., said it underscored
the need for legislation at all levels.
"If it is not stopped at childhood, it clearly progresses into adulthood,"
Namie said, citing a 2010 study by the bullying institute and the Zogby International polling company that indicated 35%
of adults in the United States had been bullied at work. An additional 15% said they had witnessed workplace bullying. According
to the survey, most bullies are men and most victims are women, but both sexes report being bullied by male and female bosses,
and women are more likely to seek help from human resources.
"This year it's an especially uphill struggle,"
Namie said of workplace bullying legislation, citing "attacks on workers in general" in Wisconsin and other states
proposing new limits on labor unions.
But Namie said he believes New York, where the state Senate passed a bill
last year, is likely to get it signed into law in 2011.
"If New York becomes the first to pass it, that's
a bellwether state, so others would follow," said Namie, a social psychologist who founded the institute 14 years ago
with his wife, Ruth, after she experienced on-the-job bullying.
The Healthy Workplace Bill, used to guide individual
states' proposed legislation, forbids a health-harming "abusive work environment" and requires medical documentation
to prove worker claims of bullying.
Proponents of anti-bullying bills say this is among the measures that would
prevent a flood of lawsuits by disgruntled employees.
Yamada, the Healthy Workplace Bill author, said workers
face the challenge of trying to prove bullying, which generally falls short of physical assault and is Machiavellian and
difficult to identify. "I liken our understanding of workplace bullying to where we were with sexual harassment three
decades ago," Yamada said. "A lot of people have had to deal with this for years but didn't know what to call
Bill backers say internal appeals processes often fall short, citing the case of Kevin Morrissey, who
was managing editor of the Virginia Quarterly Review magazine. Morrissey shot himself to death last June after relatives
and friends said his — and others' — repeated complaints about a bullying boss were ignored. The University
of Virginia, which publishes the magazine, said it had handled the complaints properly and that the manager could not be
blamed for Morrissey's death.
The recession has made it easier for bullies to carry on because jobs are scarce
and employees are reluctant to quit or to speak up and be seen as troublemakers, bill proponents say.
worked in a county courthouse, said that after a few months a new boss openly called her "stupid," humiliated
her at meetings, and sent out office e-mails that belittled her work.
Gant is still at a loss to explain the behavior.
Because much of the abuse was unseen by others — the pencil-throwing, the locking of the closet, the snide comments
— it was difficult to make others realize how bad it was, she said.
"She was an attorney. I never
felt she'd go that far," said Gant, who was haunted by the experience long after the woman's departure. One day, the
woman returned to the office for a brief visit. Gant hid in an office until she was gone.
Gant remained on the
job a few more months but has since taken another job that she enjoys. She said she also went back to school to study for
a doctorate and bolster her self-confidence, "so if I ever see her again, I'll be ready."
Should Workplace Bullying Be Illegal?
Resources for combating workplace bullying.
I'm certainly not a lawyer, and I am not a recognized expert on bullying, but I do know about leadership and best organizational practices. As an I/O psychologist, I'm also aware of legal issues in the workplace and how they impact the practice of organizational psychology. So, it is often puzzling how legislation works, but it
is clear that the development of laws and regulations is often a haphazard process.
Take workplace bullying. It constitutes a form of harassment, but bullying itself is not illegal. However, it is illegal to harass or discriminate
against someone who is in a protected group (i.e., harassment based on sex, race, age, disability, color, creed, national origin, or religion). The problem is that bullying behavior often "flies under the radar screen" and often does not get defined
Here are some differences between harassment and bullying. You will see that the bully
is often able to keep the bullying from rising up to the harassment level - to keep from getting caught and punished.
Harassment is often physical (e.g., unwanted touching, use of force) while bullying is psychological and verbal (often not
using cursing or obscene language, which would then cross the threshold into harassment).
• Bullying targets
anyone, so many victims are not members of protected groups, or the bully and victim are from the same group.
Harassment is often obvious and focused on the victim's group membership. Bullying is typically more subtle and begins as
mild criticism and then escalates or persists.
Bullying results from the inadequacies of the bully. Typically, bullies
choose targets who threaten the bully's self-image, so targets are often highly competent, accomplished, popular employees. This actually makes it harder for the victim
to get authorities to take notice ("You are a successful worker, I don't see what the problem is...").
is some good news! To date, 20 states are exploring legislation that would put bullying on the legal radar screen. Much
of this legislation is focused on creating healthier - both physically and psychologically - workplaces. In the meantime,
it is important to educate people about workplace bullying and to fight back.
Here are some resources:
Office Bully Takes One on the Nose: Developing Law on Workplace Abuse
New York Law Journal
January 21, 2011
For years the
law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law
offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by
the victim's status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause
of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page
news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation
designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill
that would provide a cause of action to an employee subjected to an abusive work environment.
Proponents of anti-bullying
legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York
legislation noted that "between sixteen and twenty-one percent of employees directly experience health endangering workplace
bullying, abuse and harassment" and that "[s]uch behavior is four times more prevalent than sexual harassment."
Employers, however, should be wary of such legislation. Anti-bullying legislation would allow employees having nothing
more than ordinary disputes and personality conflicts with their supervisors and co-workers to threaten their employers with
litigation. Surely some of these disputes would end up in court even though they wouldn't rise to the level of actionable
bullying. Moreover, it is hard to conceive how an anti-bullying statute could avoid being vague and overbroad when it comes
to defining what sort of behavior is unlawful.
Existing Legal Framework
have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal
framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed
under Title VII of the Civil Rights Act of 1964, Title VII's reach is narrow. Title VII prohibits employment discrimination
based on an individual's race, sex, color, religion, or national origin.
It is well-settled that "Title VII does
not prohibit all verbal or physical harassment in the workplace" but rather only discrimination because of race, sex,
color, religion or national origin. Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75 (1998). See also,
Marshall v. NYC Board of Elections, 322 Fed. Appx. 17, 18-19 (2d Cir. 2009) (noting that plaintiff's "allegations
that her supervisor displayed a violent temper, stood over her with clenched fists on several occasions, disparaged her educational
background, and engaged in crass behavior are troubling. But Title VII is not a 'general civility code for the American workplace';
it prohibits only harassment that is discriminatory"); Bush v. Fordham University, 452 F.Supp.2d 394 (S.D.N.Y.
2006) (allegations of harassment included that co-worker altered plaintiff's timesheets, threatened to call security on her
for no reason, and failed to give her phone messages did not amount to actionable harassment); Jowers v. Lakeside Family
and Children's Services, 2005 U.S. Dist. LEXIS 30977 (S.D.N.Y. 2005) ("It is quite clear that Plaintiff did not
enjoy the most cordial of relationships with either his co-worker or his supervisor. Such discord, however, is not a valid
ground to assert a hostile workplace claim under Title VII…Title VII is not designed to serve as a code of civility
to govern workplace professionalism"). Therefore, even where the workplace bully creates an uncomfortable or even unbearable
work environment for co-workers or subordinates, this will not violate Title VII unless such conduct is discriminatory.
Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass
most workplace bullying. In order to prove a claim for the intentional infliction of emotional distress a plaintiff must prove
that the defendant acted intentionally or recklessly, the defendant's conduct was extreme and outrageous, and the conduct
caused severe emotional distress. Restatement (Second) of Torts §46.
Courts have found that extreme or outrageous
conduct is "'so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community'…but does not extend to 'mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.'" Porter v. Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS
20627, at 5-6 (N.D. Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional distress claim where employee claimed
that he was falsely accused of fraud and bullied and intimidated during questioning about the alleged fraud) (citations omitted).
Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive
discharge. For example, in Aldridge v. Daikin America Inc., 2005 U.S. Dist. LEXIS 27389, at 14 (N. D. Al. Oct.
6, 2005), the court found that plaintiff's "work conditions were not so intolerable that a reasonable person would have
resigned… [Plaintiff] may have been under a closer watch than other…employees. He also may have been the target
of negative comments… He was not, however, forced to resign from his job."
A recent case from the Southern
District of New York illustrates the current law's limited use in the bullying context. In Mendez v. Starwood Hotels
& Resorts Worldwide Inc., 2010 U.S. Dist. LEXIS 107709 (S.D.N.Y. Sept. 30, 2010), the plaintiff alleged that his
employer discriminated against him based on his national origin, race and disability. The plaintiff also alleged that his
employer unlawfully retaliated against him for engaging in protected activity. At trial, the jury found for the employer on
all of the discrimination claims, but found in favor of the plaintiff on the retaliation claim and awarded the plaintiff $1
million in compensatory damages. The court, however, remitted the compensatory damages to $10,000, noting that there was no
evidence that the plaintiff suffered any significant damage as a result of the employer's actions.
The court opined
that it was
convinced that the jury felt sorry for the plaintiff—as, indeed, the court felt sorry
for the plaintiff. Mendez endured an abusive workplace and got very little sympathy or assistance from either his employer
or his union…. [A] non-discriminatory but uncivil workplace can certainly make a person miserable. The court is convinced
that the jurors concluded that Mendez was miserable at work, having found some basis on which to hold [the employer] liable,
awarded damages that were entirely out of proportion to any injury that was or could have been attributed to the retaliatory
[action]—but that were perfectly in proportion to the teasing and rudeness Mendez endured at the hands of his fellow
workers and chefs….
Mendez, 2010 U.S. Dist. LEXIS at 63. Although the discrimination laws shielded
the employer from substantial liability in this case, had a law prohibiting workplace bullying existed, the employer would
have been on the hook for the $1 million in damages as evidenced by the court's sympathetic words regarding the plaintiff's
Importantly, despite the absence of a cause of action for workplace bullying, the jury in the
Mendez case clearly tried to find a way to compensate the plaintiff for the bullying he endured. Likewise, in
Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008), the Supreme Court of Indiana upheld a $325,000 jury verdict on
an assault claim where the plaintiff alleged that "the defendant, angry at the plaintiff about reports to hospital administration
about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists,
piercing eyes, beet-red face, popping veins, and screaming and swearing at him." 883 N.E.2d at 794. Although the defendant
prevailed at trial with respect to the plaintiff's claim for the intentional infliction of emotional distress, the court opined
in dicta that workplace bullying could be a form of intentional infliction of emotional distress. Id. at 799.
Notably, the jury in the Raess case heard expert testimony on workplace bullying from Gary Namie,
the co-founder of the Workplace Bullying Institute (WBI), a nonprofit organization dedicated to the eradication of workplace
bullying. The WBI's Legislative Campaign division focuses on enacting anti-bullying legislation state-by-state. The WBI recruits
state coordinators to introduce the Healthy Workplace Bill (HWB), drafted by Suffolk University Professor of Law David Yamada,
to their local lawmakers. Thus, the campaign to pass an anti-bullying statute begins in each state with the same HWB language,
although local lawmakers regularly make changes to the HWB as it is introduced and works its way through the legislative process.1
The HWB provides legal redress for employees who are subjected to an abusive work environment, by allowing employees to
sue both their employer and the alleged bully for monetary damages. The WBI contends that the bill is employer friendly since
it sets a high standard for misconduct, requires proof of harm by a licensed health professional in order for an individual
to collect damages, and protects employers with internal correction and prevention mechanisms from liability.
California became the first state to introduce some form of the HWB. Subsequently, anti-workplace bullying legislation has
been introduced in sixteen other states.2 In 2010, the New York State Senate passed the bill.3 However,
the New York Assembly Labor Committee stalled the passage of this ground breaking legislation when it voted to hold the bill,
rather than vote on it.
The New York bill, A 5414B/S 1823-B, establishes a civil cause of action for employees who
are subjected to an abusive work environment. The bill defines an abusive work environment as "a workplace in which an
employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee,
and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such
employer after receiving notice thereof, fails to eliminate the abusive conduct."
Abusive conduct is defined
as "conduct, with malice, taken against an employee by an employer or another employee in the workplace, that a reasonable
person would find to be hostile, offensive and unrelated to the employer's legitimate business interests." The severity,
nature and frequency of the conduct should be considered in determining liability. The bill gives the following examples of
• Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;
• Verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; and
• The gratuitous sabotage or undermining of an employee's work performance.
Factors from which malice can
be inferred include "outward expressions of hostility, harmful conduct inconsistent with an employer's legitimate business
interests, a continuation of harmful and illegitimate conduct after a complainant requests that it cease or displays outward
signs of emotion or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological
or physical vulnerability."
The bill provides employers with an affirmative defense when the employer "exercised
reasonable care to prevent and promptly correct the abusive conduct which is the basis of such cause of action and the plaintiff
unreasonably failed to take advantage of the appropriate preventive or corrective opportunities provided."
affirmative defense is not available when the abusive conduct "culminates in a negative employment decision with regard
to the plaintiff." Further, employers are afforded the affirmative defense that "it made a negative employment decision
with regard to the plaintiff which is consistent with such employer's legitimate business interests." The bill also provides
employees with a cause of action for retaliation.
Remedies for an employer found liable include injunctive relief,
reinstatement, removal of the offending party from the plaintiff's work environment, reimbursement for lost wages, medical
expenses, compensation for emotional distress, punitive damages and attorney's fees. Under the New York bill, an employer
found to have caused or maintained an abusive work environment that did not result in a negative employment decision cannot
be held liable for punitive damages and damages for emotional distress will be capped at $25,000.
Therefore, it appears
that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace
bullying. Indeed, it seems inevitable that some form of the HWB will become law, whether in New York or elsewhere, and that
once the first state adopts an anti-bullying statute others will shortly follow. The Mendez case, discussed above,
should serve as a cautionary tale to employers about the potential for huge damage awards should such legislation be passed.
In the interim, employers are faced with significant uncertainty with respect to how to deal with workplace bullying. We suggest
that employers become proactive and take immediate steps to prevent workplace bullying. This will ensure that employers are
better prepared to defend against a cause of action for workplace bullying.
Steps Employers Can
There are several steps that an employer can take to address workplace bullying. First, most employers' harassment
and discrimination policies do not cover workplace bullying. Such policies can be revised to prohibit harassment that is based
on factors other than those protected by federal, state and local discrimination laws. Codes of conduct and disciplinary policies
should likewise be revised. Employers can use the examples of abusive conduct set forth in the New York bill, and other
proposed legislation, as a guide for appropriate additions to these policies.
Once these policies are revised, they
should be circulated to all employees. Furthermore, employers should take seriously any complaint by an employee who alleges
that he or she is the victim of workplace bullying. Such complaints should be investigated promptly and fully in the same
manner as other harassment complaints. Employers also should consider providing management training to supervisory employees
in order to cut down on complaints of bullying.
Finally, employers should have a zero tolerance policy for workplace
bullying. There is no denying that most workplaces will have employees with different management styles and personalities,
and an ordinary dose of tension, stress and conflict. However, when conduct "crosses the line" and rises to the
level of bullying, supervisors or other employees who engage in bullying should immediately be disciplined. Employers should
seek the assistance of counsel in revising these policies and addressing any incidents of bullying, as well as to keep abreast
of the developing legislation and jurisprudence on workplace bullying. By taking proactive action, employers can minimize
the impact of the workplace bullying legislation that is bound to come to light in the near future, and in the meantime, maintain
a safer and more productive workplace.
Jason Habinsky is counsel and Christine
M. Fitzgerald is an associate at Hughes Hubbard & Reed.
1. One notable exception to this occurred in Nevada. The bill introduced in Nevada in 2009 attempted to expand
the state's civil rights code to include abusive conduct as an illegal employment practice.
2. The 16
other states are Connecticut, Hawaii, Illinois, Kansas, Massachusetts, Missouri, Montana, Nevada, New Jersey, New York, Oklahoma,
Oregon, Utah, Vermont, Washington and Wisconsin.
3. The Illinois Senate passed a bill that would cover
only public sector employees.