The purpose of my documentary research into the topic of workplace bullying has been to ask several questions – chief among them is:
Can workplace bullying be defined? If so, how and who decides? How do we avoid – and recognize – false accusations?
Below are some popular ways of defining workplace bullying that may be doing more harm than good. This article recognizes the work of those who have gone before and is respectfully intended to break down silos and build bridges that encourage broader more inclusive discussion as we move closer to a legislative solution.
1. NO HARM, NO FOUL:
Just last month the Workplace Bullying Institute said that: ”Without tangible impact, when there is no harm, there is no foul. Caveat: The onset of harm may be delayed as is PTSD. The absence of immediate harm followed by a latent effect is still harm. If no harm ever manifests itself, then we can say the person was not harmed and, therefore, not bullied.”
What’s wrong with their statement? Twenty years ago the Supreme Court recognized that harassment shouldn’t destroy a person before they can seek a legal remedy. At a time when workers rights are under attack why turn the clock backwards? Here’s how a 1993 article from the New York Times vault reported this victory for workers:
A victim of sexual harassment need not suffer a nervous breakdown to sue an employer for discrimination. A worker has suffered enough, the Supreme Court asserts, if the employer has so polluted the workplace with sexual improprieties that a reasonable person would find it hostile and abusive, a disagreeable, unpromising place to work… Those courts have loaded up the simple written law with all sorts of rules and extra burdens of proof that Congress never imagined, such as the requirement that a plaintiff prove that the harassment caused psychological damage. [NYTimes 11/11/93, A Victory on Workplace Harassment"]
Why must targets suffer in a hostile environment until they finally break? Jerry Carbo, PhD, has extensive expertise in labor issues including workplace bullying. His legal/academic background gives him an understanding of both the strengths and weaknesses of the HWB. He suggests striking the following language:
A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard. (2) Psychological harm. Psychological harm is the impairment of a person’s mental health, as established by competent evidence. (3) Physical harm. Physical harm is the impairment of a person’s physical health or bodily integrity, as established by competent evidence.
2. MALICE & INTENT:
“Abusive conduct must be malicious, as defined in the [Healthy Workplace Bill], not by the court. “Malice is defined as the desire to cause pain, injury, or distress to another.” This requirement also will help sort out trivial bullying from health-harming abuse. In severe bullying cases, this standard will most likely be met.” [WBI description of the definition in the HWB]
When I presented my work at the 2010 International Conference on Workplace Bullying & Harassment the international community had already recognized that “malice” should not be a part of the definition. You can thank this blog and other academic, practioners and legal critics that included Patricia Barnes, Jerry Carbo, Katherine Lippel, among others for pushing the WBI and the bill’s author, Professor David Yamada, to finally delete “malice” from the latest iteration of their Healthy Workplace Bill. While many of us appreciate this change the term “malice” lives on in recently introduced versions of the bill in several states. Why should you care? As we’ve written in previous articles, even the supporters of the bill admit that “malice” is virtually impossible to prove.
Jerry Carbo says Yamada should go further. Carbo suggests striking out unnecessary references to intent that continue to raise the bar for targets too high to be able to seek a legal remedy and is more in keeping with other harassment legislation currently in place:
Abusive work environment. An abusive work environment exists when an employer or one or more its employees
acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.
3. SCHOOLYARD BULLYING IS IN THE WORKPLACE TOO:
The number of articles that begin with this cliche drives me crazy but there are indeed similarities as well as marked differences. Renewed popularity of school bullying legislation shows that the general public expects teachers and schools to play a primary role in preventing and stopping the bullies wrecking havoc on their classmates. Some state laws include a clear understanding of policies and prevention procedures that need to be put in place. If the same were true in the workplace employers would be required to deal directly with the perpetrators they hired and keep on their payroll. Without support from management, the target nearing retirement who has invested decades to their job faces dire consequences and limited recourse to fight back.
Unlike school bullying legislation, the HWB seems more intent on holding the actual “bully” accountable for their actions than the employer. One aspect of the bill is that employers are “off the hook” if they show that they have made an effort. However, the HWB doesn’t rise to the level of clarifying what employers need to do:
(1) The employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,
(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer
Why does this vagueness matter? What if an employer offers mediation as an option and the target turns it down? There is a lot of argument and clearly no consensus about whether or not mediation is a successful tool against bullying. If the law is enacted an employer can show that they offered mediation – which still has lots of supporters – to an employee as proof that they have made efforts to address the issue.
Jerry Carbo has written the amendment below for inclusion in the HWB to better protect employees:
A “Reasonable Anti-workplace bullying policy” means a policy that is reasonably calculated to prevent, detect and remedy all acts of workplace bullying and abusive conduct in the employer’s workplace. Such policy shall at a minimum contain an adequate notice to employees of their rights to a healthy workplace, a definition of abusive conduct and workplace bullying, an adequate reporting system, a requirement that all supervisory employees and all agents of the employer immediately report all acts of bullying and abusive conduct, a prompt and effective investigatory system and remedies that assure the end to the abusive conduct, deter future such conduct and make the target of such conduct whole, and protections against retaliation for the reporting, investigating or participation in an investigation under this Act. Such act must be posted and widely distributed to all employees and guests on an employer’s premises.
Join us by asking your legislator to amend the Healthy Workplace Bill so that it better protects employees from the devastating impact of workplace bullying. Send them the Carbo amendments outlined in this article to help prevent and stop workplace bullying.
- WBI Survey: Two Thirds of U.S. Companies Address Workplace Bullying (bullyinworkplace.com)
- “Malice” & The Healthy Workplace Bill (bullyinworkplace.com)
- MASSACHUSETTS: Using Anti-Harassment Laws For Workplace Bullying (bullyinworkplace.com)
- Growing push to halt workplace bullying (miamiherald.com)
- Connecticut Group Seeks Exciting Changes to Workplace Bullying Legislation (bullyinworkplace.com)
- Workplace bullying: States push legislation to let employees sue (heraldtimesonline.com)