Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Wednesday, September 05, 2007 9:43 AM by Rod Satterwhite

Taking the Bully by the Horns

With Labor Day just past us, and the beginning of the school year for most, it seems an appropriate time to take up an issue that’s been bugging me for several months:  workplace bullying.  Not that I’ve been bullied, mind you.  Instead, I keep seeing this issue pop up in headlines here and there, and I finally decided to look at it more carefully from the admittedly jaded eyes of an employment lawyer.

Bullying, according to the Workplace Bullying Institute, is “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:  verbal abuse, threatening, humiliating or offensive behavior/actions, or work interference -- sabotage -- which prevents work from getting done.”  Moreover, there are apparently a number of other key characteristics of workplace bullying.  According to the institute, it  “(a) is driven by perpetrators' need to control the targeted individual(s) , (b) is initiated by bullies who choose targets, timing, place and methods, (c) escalates to involve others who side with the bully, either voluntarily through coercion, and it (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself.”

Now at first glance, this definition strikes me as objective, and almost scientific.  However, applying some of the complaints I’ve heard over the years from employment law plaintiffs, the concept of bullying becomes a little more amorphous.  If, for example, a boss repeatedly tells a subordinate that he must improve his work performance or his job will be in jeopardy, and the employee develops a stress related condition as a result, doesn’t that fit the definition above?  It’s repeated, health-harming, and threatening, isn’t it?  And depending on how “nice” the boss is when she delivers that message, it might even be interpreted by some as mistreatment. 

It’s no wonder then, with such a squishy definition, that a recent study concluded workplace bullying was an epidemic:  “Workplace Bullying is an Epidemic.  37% of American workers, an estimated 54 million people, have been bullied at work. It affects half (49%) of American workers, 71.5 million workers, when witnesses are included.”  Even a cursory look at the study, though, suggested that in reality only 13% of respondents reported that they had actually been bullied in the last year.  Isn’t it amazing what you can do with statistics?

Now I’m not trying to pick on (or bully) the Institute by going after their definition and their study, but there is a legitimate issue here for employers.  As a result of lobbying efforts by worker advocates, there are several bills pending in legislatures around the country that seek to impose restrictions on workplace bullying.  One of these advocacy sites, BullyBusters, actually likens bullying to “general workplace harassment,” and this concept is what really troubles me when I think about the impact on my clients.  As difficult and costly as it can be for employers to manage illegal workplace harassment, what will happen if it becomes illegal to tolerate “general workplace harassment,” when the definition of such harassment can potentially include daily workplace reprimands or other legitimate activity?  In investigating and training folks on current laws about sexual and racial harassment issues, I see managers legitimately concerned (and sometimes confused) over what they can and cannot say in the workplace.  After years of evolution, the law is still gray.  The imposition of a general workplace civility rule, backed by compensatory and punitive damages, will clog the courts with people who haven’t recognized that, in life, there will be adversity.  It is not the place of either the legislatures, or employers, to shield people from that reality.

Employers can take proactive steps to avoid problems in this area.  Of course, training managers is a must.  There are good management practices, and poor practices.  Good communication can avoid misunderstandings that might someday lead to a “bullying” lawsuit.  In addition, harassment policies can be reviewed and rewritten as needed to insure that the work environment is appropriately free from true harassing behavior.  Finally, employers can be cognizant of lobbying efforts and legislative initiatives, and oppose those with flawed provisions or definitions.  Unlike the bullies in the schoolyard, however, employers should not follow that old adage of “just ignore it and it will go away.”

Comments

# re: Taking the Bully by the Horns

Thursday, September 06, 2007 12:23 AM by Catherine Mattice
I see your point, and admittedly, hadn't thought about it that way before. I am currently writing a thesis for my MA on bullies, and intend on pursuing the issue of bullies in the workplace as a career. I am also an HR manager (who was bullied by a managerial peer, and simultaneously accused of bullying once or twice herself). I therefore feel well qualified to comment here.

As you mention, the issue of the definition should certainly be addressed. In my review of both academic and mainstream literature (both on and offline), one thing is glaringly apparent - collaboration on the concept and definition of workplace bullying is lacking. This must be resolved before we can move forward on any legislation.

A few things, however, stand out as constant: bullying is unwanted and recurring, negative, involving perceived power imbalance and a relative inability on the part of the victim to engage in self-defense, and a resulting psychological or work-related harm to the victim(s).

Unwanted... sounds a bit like sexual harassment - doesn't the SH training usually tell the victim the first step is to say no? Does the bully even know that their behavior is negatively affecting others? And isn't sexual harassment usually framed in the context of exerting power? Inability to defend him or herself? That's where a training program comes in.

I compare the 2 because they share some similar qualities - victim perception that they are being harassed or bullied (two people might share similar or different views on the behavior), and that the victim should have to say no once. If it continues, then report it to management.

It is disconcerting that legislature could open up the flood gates for courts clogged with sue-happy people who felt used and abused at work. But, in the end, just as in sexual harassment, if management hears that someone feels bullied, and they don't do anything about it, then yes, legal action should be taken. But then, what will legislature deem as bullying? Let's agree on the definition first.

# re: Taking the Bully by the Horns

Sunday, November 11, 2007 6:05 AM by Dawn
Hello Rod,
I read your entry and felt a very real sense of sadness about it. Your comments are the very reason there is currently no tough legislation in the U.S regarding this serious problem. There are no currently legal ramifications for employers who do nothing when a legitimate cry for help comes there way. As "epidemic" as this egregious matter is, it is unthinkable that a Bully can act with wanton cruelty forcing an honest, hardworking employee into perpetual illness (resulting in increased absenteeism, rising health care costs, hospitalizations, and even suicide), or ruin the reputation of said target (resulting in decreased performance, trauma, low self-esteem), or finally, forcing the target to quit (and unable to use the employer as a reference when job hunting, or worse, being black-balled).
Very few people want to hear the stories of victims/targets. No one seems to want to believe or even consider that there are sociopathic individuals who manipulate and crush, who have no remorse or conscience, and who continue unabated because, as you said, only 13% pursue the matter. It is important to remember that the 13% are ONLY those who made an actual report. Most complaints are verbal, or the employee is not able to convey their experience in a way that affects the decision makers in their company's.
This is a sad state of affairs. Australia, the UK, and Sweden have proper legislation which can also carry jail time and fines for employers and, in Australia, jail time and fines for people who have witnessed the behavior and have failed to report it. I thought that was extraordinary.
If in the U.S. people were made to understand that standing by, watching a crime take place, but then DOING NOTHING, is a punishable offense, I suspect you would find a much higher statistic than 13%.
The U.S. is very, very slow to believe that legislation needs to take place regarding these sociopaths who are in positions of authority. It is as you said, everyone wants to believe that the company and the HR departments will educate themselves and act appropriately and ultimately, do the right thing.
This is utterly unrealistic, wishful thinking. Not only unrealistic, it is a horrific fallacy that makes it nearly impossible to find a lawyer who will represent a victim/target; an HR department who will listen with some measure of empathy; few or no organizations who can provide some sort of assistance.
Lastly, as a person who hase experience unspeakable workplace bullying at a major corporation, I am an advocate of any and all legislation that will check employers and hold them responsible for the behavior of their staff. A company who does nothing, according the the Bullying Institute is an "accomplice" to the abuse that one employee inflicts on another employer. The onus should fall into their responsibility and, true to U.S. systems of law, people will not change their behaviors simply because we think they should; they will continue to ignore the problem until a laws are passed that result in real repurcussions for ignoring an employees plea for help.
On a personal note, I myself survived a workplace situation that lasted for 2 consecutive years. I use the word 'survive' quite purposefully. "Why didn't you just quit and find another job?" you ask. Because it isn't that easy. What you need to recognize (and not just you but all employment lawyers), is that workplace bullying can be very much like rape. That's correct. In the exact same way that a woman is violated, abused, demeaned so it goes with the bully on the job. The euphemism is so perfectly corresponding that, once you make the correlation, you will understand why I "didn't just quit". You will understand what the emotional toll is on the psyche and why it is not reported. You will understand why hearing a lawyer say what you've said, is mind-boggling.
The utter loss of autonomy, the assault to one's very mind, the fear, the co-workers who stand by silently and watch...all of these things...no wonder only 13% file written reports.
I mean no disrespect but although you are no doubt an intelligent human being, you have no idea what you are talking about. I could tell you stories (and I'm sure I'm not alone nor the only one), that would make you think twice before thinking that the employer should do the right thing. They will continue to embrace the CYA strategy without any repercussions. Until the laws are changed, employers aren't going to change anything. It's not in their interests to do it...

Dawn

# re: Taking the Bully by the Horns

Sunday, November 11, 2007 12:03 PM by KATHY
IF YOU HAVE NEVER BEEN BULLIED AT WORK THEN YOU CANNOT POSSIBLY UNDERSTAND THE LEVEL OF STRESS IT CAN CREATE ON A PERSONAL AND DEPARTMENTAL LEVEL. SINCE WHEN DID IT BECOME ACCEPTABLE BEHAVIOR FOR PEOPLE TO TELL LIES,SLANDER SOMEONE OR CREATE AND SPREAD RUMORS ABOUT COWORKERS THAT ARE UNTRUE AND DIRECTLY AFFECT THAT PERSONS WORK PERFORMANCE? WHAT HAPPENED TO THE GOLDEN RULE? WHY SHOULD WORKPLACE BULLYING BE TOLERATED? AN INTELLIGENT LAWYER WOULD KNOW THE DIFFERENCE BETWEEN AN EMPLOYEE BEING BULLIED AND AN EMPLOYEE BEING COUNSELED ABOUT THEIR BEHAVIOR OR JOB PERFORMANCE. IT IS NOT ACCEPTABLE FOR ANYONE TO MISTREAT A FELLOW EMPLOYEE NO MATTER WHAT THE CIRCUMSTANCE AND IF SOMEONE IS MISTREATED TO THE POINT OF PHYSICAL OR PSYCHOLOGICAL DISTRESS THEN THE PERSON BEING MISTREATED SHOULD BE ALLOWED SOME COURSE OF ACTION INSTEAD OF HAVING TO COWER IN A CORNER AND TAKE IT.