Category Archives: Legislation

Are Women Bosses Really Meaner?

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Here’s what Abby L. Ferber had to say in this excerpt of her Huffington Post article about the issue:

So why do women most often bully other women? Because they are rarely in positions of power over men. According to the article [NY Times, Backlash: Women Bullying Women at Work:

“After five decades of striving for equality, women make up more than 50 percent of management, professional and related occupations, says Catalyst, the nonprofit research group. And yet, its 2008 census found, only 15.7 percent of Fortune 500 officers and 15.2 percent of directors were women.”

In addition, women are more likely to work in careers and workplaces that are primarily populated by other women. Men, on the other hand, wield power in the workplace over both women and other men.

Instead of examining the larger dynamics of power at work here, the article focuses on women as a group, asking why they bully other women.

We are left with numerous problematic conclusions:

Women’s relationships with each other are problematic and women need to learn to better support each other.

Women are the problem themselves, and they are becoming too much like men as they move into positions of power.

Bullying itself is not a gendered phenomenon, men bully men and women bully women, so we are all affected by it.

Bullying by men is natural, and not in need of examination. We should expect that kind of behavior from men.

Looking at the exact same data, however, informed by an understanding of how the dynamics of gender and power operate, a very different story can be told.

The reality is that:

Bullying is about power, and people bully those they have power over.

Bullying increases when people feel their power threatened.

Our unequal gender system contributes to the problem of bullying because it reinforces the idea that some people should naturally have more power than others; that men are by nature more aggressive, and women should be more nurturing and supportive.

And bullying in the workplace contributes to economic inequality between men and women. As this study makes clear, bullying is a very serious problem, with real consequences: 40% of the time, the target ends up quitting her job (remember, most targets are women). So bullying is a tool to maintain inequality.

The way in which the story of the data is told by the New York Times ends up hiding the real problems and blaming the victims. If our analyses are not informed by research and analyses of gender and power dynamics, we end up contributing to the problem, rather than developing real solutions.

Can you win a lawsuit if workplace bullying legislation passes?

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Soon legislators in several states will be reintroducing “abusive work environment” legislation that has carried over for another year, many of them copied verbatim from the arguably business friendly Healthy Workplace Bill template (HWB).   For victims of bully bosses passage represents vindication and dreams of having their day in court.  But, just how realistic is that dream?

It might help to look at the outcome of workers compensation claims for mental stress.  John D. Kovac, a workers compensation attorney in New Jersey, points out in his article, Stress Claims As A Remedy For Workplace Bullying, that “…under workers’ compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy…”

If/when the HWB passes it has built into it this same requirement.  In addition, the HWB will require victims to find a way over one more hurdle.  Besides injury, victims will have to prove that their boss acted with malice and intentionally targeted them. Only then will victims be able to meet their bully in a courtroom.

How will courts determine issues about pre-existing conditions and individual sensitivity to stress?  Below Kovac outlines the way workers comp decisions lean on these issues in NJ: (Additional information on filing NJ workers comp claims is included in the full article):

Three Necessary Elements of a Stress Claim

1. Proof of objectively stressful work conditions which the worker reacts to in a stressful manner.

In Goyden v. State Judiciary, 256 N.J. Super 438 (App. Div. (1991), aff’d. 128 N.J. 54 (1992), the Court found that there was a mere subjectively perceived conflict with a supervisor which did not rise to the level of a compensable psychiatric claim. Goyden alleged that he was subjected to vindictive management procedures, particularly a biased and defamatory work evaluation that resulted in major depressive disorder, which compelled him to retire. The court, however, found that the criticism was merited. Goyden also alleged he was stressed by uncontrollable backlog and staff shortages, but the court found that these were not the cause of his stress. The Court noted, though, that work conditions such as backlog and staff shortages are subject to objective verification and thus could form a basis for a stress claim. Id. at 456.

Williams v. Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). makes clear that an employee’s subjective reaction is not to be disregarded, though it cannot be the sole ingredient of the formula for compensation. Williams also teaches that objectively verifiable work conditions need not be outside of the ordinary work stresses: “The requirements of unusual strain or stress as a causative factor was rejected [. . . ] and we, as an intermediate court, cannot revive that approach.” Id. at 106. Thus Williams specifically rejected the Wisconsin rule, which requires proof that the psychiatric injury must result from “greater dimensions than the day-to-day mental stress and tensions which all employees must experience.” Id.

Walck v. Johns Manville, 56 NJ 522 (1970), involved a reaction to mental stress resulting in a heart attack. The petitioner feared he may lose his job, but this fear was unfounded. After the retirement of his long-time supervisor, the petitioner claimed, he became nervous, tense, and insecure about his work performance and about his ability to hold his job under his new supervisor. But the court found that his anxiety was purely subjective and based on an unfounded imaginary worry as opposed to a reasonable basis in fact. Therefore the court found that where the employee is a worrier who becomes unnecessarily nervous about losing his job and this worry results in a heart attack, it is not compensable.

In Williams v. Western Electric, supra, the petitioner alleged that his work on an assembly aggravated his underlying schizophrenia. However the court found that he had a purely subjective reaction to his job because of his schizophrenia: his diseased mind reacted to merely normal work demands. Therefore compensation benefits were denied.

2. Work conditions peculiar to the workplace (not just common to everyone). Fiore v. Consolidated Freightway, 140 N.J. 452, 468-470 (1994) illustrates “peculiar to the workplace”:

If an employee contracted pneumonia as a result of working in a freezer as a packer, the condition would be a compensable occupational disease because it would be due to a cause which is peculiar to the employment. If the same employee contracted pneumonia as a result of incidental exposure to a fellow employee with pneumonia, however, this might not be compensable because the condition may not be due to a condition characteristic or peculiar to the employment.

Goyden held that merited criticism by a supervisor is common to all occupations and is therefore not peculiar to any particular trade or occupation. Id. at 451. In Williams, the petitioner had preexisting schizophrenia and evidence indicated he was equally irritated by things and people on and off the job. The facts in psychiatric claims brought before the Division must be distinguished from Goyden and Williams.

Cairnes v. City of East Orange held that a layoff or unemployment is not a risk arising out of employment but rather out of the economy and economic forces. A layoff notice is a threat that confronts every worker[4] and is therefore not stress peculiar to the workplace.

3. Objective medical evidence showing that the work conditions were the material cause of the psychiatric disability. Professional analysis in psychiatric claims, as opposed to physical claims, depends upon “analysis of the subjective statement of the patient.” Saunderlin v. E.I. Dupont Company, 102 N.J. 402, 412 (1986). Though subjective evidence requires analysis beyond mere subjective statements and will not be present when the physician simply “parrots” the patient’s complaints, objective evidence of a physical manifestation is not required in psychiatric claims. Id. at 412, 416. The distinction between objective and subjective “is not between physical and mental (or body and mind) but between independent professional analysis and the bare statement of the patient.” Interposition of a professional judgment between a subjective statement and an award of disability does not involve exclusion of the subjective statement: any medical examination “must begin with the [patient’s] subjective statement.” In physical disability claims, medical analysis often goes beyond subjective statements by virtue of clinical and laboratory tests. But in psychiatric claims, diagnostic criteria include descriptions of states of mind “discoverable only through” the subjective statement. Id. at 412-414. Under Saunderlin, Reasoned analysis of the subjective statement of a psychiatric patient is objective within the meaning of N.J.S.A. 34:15-36. Id. at 313-314. But where petitioners saw their psychiatrists only once upon recommendation of their attorneys and the psychiatric reports merely dressed the complaints in “psychiatric nomenclature,” the claims for psychiatric disability were dismissed. Id. at 418-419.

Specific Event versus Occupational Stress

In Prettyman v. State of New Jersey, 298 N.J. Super 580, 594 (App. Div. 1997), the court stated that Walck and Williams do not apply when an alleged psychiatric disability is caused by a specific event rather than a stressful work environment. Wrongly suspected of stealing from a coworker, petitioner was removed from work by the State Police and taken to a station for aggressive questioning. The court applied the “but for” test to determine that the petitioner’s injuries arose out of her employment: but for the fact that she came to be suspected of theft while carrying out her usual duties, she would not have been taken for questioning a few days later. Respondent’s contention, based on Cairns, that police investigations of theft are as normal to the workplace as layoff notices, was rejected along with the argument that the interrogation was a separate event that did not arise “during the course of employment.” Among other things, the court’s distinction in Prettyman between a specific event and a stressful environment suggests that a worker’s predisposition cannot be used to bar specific event claims. Hence the court noted that the “employer takes the employee as the employer finds the employee, with all of the pre-existing diseases and infirmiti[es].” Evidence of the petitioner’s emotional and excitable nature, precluded by the trial judge, was not deemed significant to respondent’s defense. Id. at 592-595.

Limits to psychiatric stress claims apply to fact-specific circumstances and, in some cases such as Cairns, are based on considerations of public policy. These limits, however, do not apply to psychiatric injuries arising from accidents or occupational diseases that have caused other injuries, such as, for example, a machinist depressed after losing an arm or a construction worker depressed due to occupational pulmonary disease. A psychiatric claim in these latter instances would be limited only by Saunderlin, supra, which requires reasoned, objective, professional psychiatric analysis of the patient’s state of mind.

Burden of Proof in Occupational Claims

In Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003), a firefighter with history of smoking cigarettes established that his exposure to smoke from fires contributed in a material way to his lung disease. Lindquist clarifies the standard applicable to all occupational claims in a way favorable to petitioners.

Standard of Proof: “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”

Bargain Theory: The Workers’ Compensation Act “involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries . . . ” At the ” heart of this ‘original bargain . . . . is the notion that the burden of proof on claimants would be easier . . . under workers’ compensation laws than under common law.”

As this standard applies to occupational claims in general, it would govern occupational stress claims and the related sub-category of occupational bullying claims.

3 Types of Workers’ Compensation Benefits

1. Medical Treatment (Controlled by the Employer). Employee cannot go to his own doctor without getting prior authorization from the carrier—risks personal responsibility for payment in some instances. But the employer’s right to control treatment may be lost if the treatment offered is ineffective or unreasonable. Benson v. Coca Cola, 115 N.J. Super 585 (Law. Div. 1971). See also N.J.S.A. 34: 15-15 providing that if the employer fails to provide treatment the employee may obtain it but the employee must request the treatment. A letter should be sent to the comp carrier or employer’s attorney demanding adequate treatment.

Cure and Relieve. N.J.S.A. 34:15-15 requires an employer to furnish treatment “necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the [worker’s] injured member or organ where such restoration is possible.” But Hanrahan v. Township of Sparta, 284 N.J. Super 427, 436 (App. Div. 1995), held that the phrase “cure and relieve” is not conjunctive: treatment must be provided as long as competent medical testimony establishes treatment is necessary to either cure the worker or relieve the worker of symptoms.

2. Temporary Disability Benefits (“TDB”). Paid weekly (for up to 400 weeks or 7.7 years) at 70% of average weekly wages up to a maximum in 2008 of $742 (SAWW 989.23 x .75). 34:15-12(b) and 34:15-38. Paid until the worker may resume her job or until MMI (is as far restored as the permanent character of the injuries will permit), whichever occurs first. Monaco v. Albert Maund, 17 N.J. Super. 425, 431 (App. Div. 1952).

Restricted Duty: Harbatuk v. S&S Furniture Systems Insulation, 211 N.J. Super 614, 628-629 (App. Div. 1986). If the employer provides full-time restricted employment within the worker’s capacity, temporary disability benefits may be stopped, but not if the employer fails to offer suitable work. Furthermore Harbatuk favorably described an Oregon decision supporting the principal that a worker need not seek easier work in a different field while under active treatment to cure a work-related medical condition.

Med-Temp Motions: Must be filed if a worker has no way of obtaining necessary medical treatment, if there is a dispute over restricted duty, or if the worker is in financial distress and has no other means of obtaining temporary disability benefits. The motion is given priority on the calendar.

Temporary Disability Benefits (TDB). A disabled P can get TDB for six months (at 66.6%) while waiting for resolution of Med-Temp. Motion (fill out Agreement to Repay form). The Department of Labor gets a lien on comp recovery that must be repaid if the comp case is successful.

3. Permanent Disability Benefits. Worker not eligible until 26 weeks (6 months) after MMI or after return to work—whichever is earlier. Must show by objective medical evidence that the worker suffered a loss of functional capacity to work. The award is not for pain and suffering though pain and suffering may be considered if it affects ability to function. Both sides must have permanency exams to resolve the case. Benefits may be for permanent partial total (the worker is not fully disabled) or permanent total (due to injury the worker is unemployable in a reasonable stable job market).

Dear Legislator: What You Should Know About Workplace Bullying

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I found the article below while looking for information to post on our informational resource site about the Healthy Workplace Bill.  It’s an interesting look at ways to turn tools already in place into powerful protections for targets of workplace bullying:

The Anti-Bullying Legislative Movement: Too Quick To Quash Common Law Remedies?

Sarah Morris, Bench & Bar, Vol. 65, No. 10 | November 2008 [Excerpt]

Common Law Remedies

The anti-bullying movement argues vehemently that existing law inadequately protects workers from status-neutral harassment. Discrimination laws limit harassment coverage to protected classes, leading to the phenomenon that the “equal opportunity harasser” has a pass under harassment law. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000) (foul language used in front of and to describe both sexes was not sex discrimination). Tort law’s barriers to nondiscriminatory bullying claims are nearly insurmountable, according to the movement.

However, some courts have effectively addressed status-neutral bullying under tort theories. The Indiana Supreme Court recently affirmed a $325,000 assault award to an operating room technician who alleged that he reasonably feared imminent harm from a supervisor surgeon. Raess v. Doescher, 883 N.E.2d 790, 799 (Ind. 2008). The Texas Supreme Court affirmed an intentional-infliction-of-emotional-distress (IIED) award of $275,000 to three workers whose supervisor repeatedly shouted profanities at them, physically charged them, pounded his fists and threatened them with termination during a two-year period. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 613-14 (Tex. 1999). The 3rd Circuit Court of Appeals reversed a summary judgment on an IIED claim by an employee whose manager used a self-termed “root canal” in which he taunted, berated and demeaned her and asked for her resignation almost every time she was in the office. Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 115 (3d Cir. 1996). The Iowa Court of Appeals reversed an order granting JNOV on an IIED claim to supervisors who berated an employee with groundless accusations as to performance on nearly daily basis for four months and attempted to sabotage his work. Blong v. Snyder, 361 N.W.2d 312, 317 (Iowa Ct. App. 1984).

Minnesota courts have primarily addressed whether harassment creates tort liability in protected class contexts. However, in addressing tort claims in the protected class arena, Minnesota courts have skillfully negotiated the fine line between extreme and outrageous conduct and general workplace unpleasantness. For example, in Wenigar v. Johnson, 712 N.W.2d 190 (Minn. App. 2006), the Minnesota Court of Appeals affirmed the court’s finding that the disabled plaintiff’s employer was liable for intentional infliction of emotional distress based on evidence the employer shouted at plaintiff daily, refused to permit him to take breaks or vacation, told others he was stupid and retarded, and supplied him with housing that was uninhabitable. Cf. Leaon v. Washington County, 397 N.W.2d 867 (Minn. 1986) (stating in dicta that fact finder could decide plaintiff’s coworkers acted outrageously and intentionally when they forced him to have physical contact with nude dancer at stag party held by members of plaintiff’s department); Orth v. College of St. Catherine, 1995 WL 333875 (Minn. Ct. App. 1995) (unpublished) (reversing summary judgment on IIED claims based on supervisor’s sexual comments and throwing of objects at one plaintiff).

On the other hand, Minnesota courts have consistently rejected tort claims when the employer’s conduct is not egregious. In Schibursky v. Internat’l Bus. Machines Corp., 820 F.Supp. 1169, 1183-84 (D. Minn. 1993), the court held that workplace surveillance of plaintiff’s overtime hours and perceived verbal abuse regarding her failure to reduce her overtime did not represent extreme and outrageous conduct. Id. at 118-84. Similarly, the Minnesota Court of Appeals held that as a matter of law, plaintiff failed to raise a factual issue on an IIED claim based on his manager’s posting of meeting notes on a company bulletin board with the words “move-ups, brown nose, shit heads” next to his name, which the employer removed at plaintiff’s request. Lund v. Chicago & Northwestern Transp. Co., 467 N.W.2d 366, 370 (1991). The court reasoned that the conduct was vulgar, but not extreme and outrageous. Id. at 370. See also Hubbard v. United Press Internat’l, Inc., 330 N.W.2d 428, 439-40 (Minn. 1983) (holding employer’s discipline and criticism of plaintiff neither extreme nor outrageous). The careful IIED line-drawing by Minnesota judges in the protected class harassment context reflects that our courts will deal reasonably with tort claims based on status-blind harassment.

Some jurisdictions have deferred inappropriately to the employment-at-will doctrine when faced with tort claims arising from bullying. In one notorious case, a federal district court applying New York law granted summary judgment on an IIED action in which the plaintiff alleged her harassing boss pushed her into a file cabinet, because New York law required sexual battery as a prerequisite to tort liability for harassment. Ponticelli v. Zurich Am. Ins. Group, 16 F.Supp.2d 414, 440-41 (S.D.N.Y. 1998). Other courts have treated the plaintiff as particularly susceptible to emotional distress and dismissed the tort claim for lack of evidence the employer knew of the heightened vulnerability, even in cases with atrocious facts. See Hollomon v. Keadle, 931 S.W.2d 413, 416-17 (Ark. 1996) (employer’s alleged constant cursing of employee as “white nigger,” “slut,” and “whore” and implicit threats regarding mob connections and handgun; summary judgment proper based on lack of notice to employer of emotional susceptibility). See also Harris v. Jones, 380 A.2d 611, 616-17 (Md. Ct. App. 1977) (reversing IIED judgment for plaintiff; although supervisor repeatedly verbally and physically mimicked plaintiff’s stutter for five months; exacerbated anxiety did not reflect severe emotional distress).

Nonetheless, developing a legislative remedy may be neither realistic nor appropriate. Given the current economic backdrop, state legislatures are unlikely to add anti-bullying liability to employers’ regulatory burden. Further, the Model Act lacks sufficient specificity to effectively deter the challenged behavior. Unlike Title VII harassment theory, which relies on a causal link to an illegal motivation, the Model Act prohibits a more general type of conduct.15 Ambiguity that limits the statute’s usefulness to employers or courts may inspire nuisance litigation. One critic even contends that legislating against bullying could be ridiculed as an attempt to create a general workplace civility code, denigrating the respect accorded all employment laws.16

A better answer to the workplace bullying conundrum is to remove any inappropriate barriers in tort law. One commentator suggests that courts could use discrimination law’s well-known standard of severe and pervasive conduct to evaluate whether behavior is extreme and outrageous for purposes of IIED.17 Other modifications could include removing any requirement that IIED in the workplace be sex-based in order to be actionable. Eliminating the employee’s obligation to show the employer knew of his or her sensitivities and focusing on the severity of the harasser’s conduct also merits consideration. The common law can deal with this employment problem more successfully and with more flexibility than a statutory scheme.

Conclusion

U.S. anti-bullying activists are eager to bring American law into step with legislative remedies adopted in Europe and elsewhere. Although tort law has demonstrated flaws in addressing status-blind harassment, case law in Minnesota and elsewhere shows that it is not the slim reed described by legislative advocates. Modifying tort law to remove unreasonable barriers to redress of egregious conduct is a more practical and efficacious solution. Of course, if all employers embraced a “no jerk” rule, this social issue could be handled in the better forum: the workplace.

 SARAH MORRISE is a partner at Lind, Jensen, Sullivan & Peterson, PA, where she practices in the areas of employment law and insurance coverage.

What does “Hot Coffee” and “Workplace Bullying” have in common?

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This week, advocates in a dozen states are taking part in “OurBullyPulpit’s Take Action Screenings” to raise public awareness about workplace bullying.  Many are advocates for pending legislation, which in most states is the Healthy Workplace Bill [HWB].  But, the HWB they’re fighting for includes a $25K Cap on our (victims’s) emotional distress portion for those who haven’t lost their jobs, been demoted or suffered any other negative action.  You also have to prove malice and health harm.  The argument by the drafter of the HWB is that a purposely low Cap and high hurdles will help avoid “frivolous lawsuits.”

But, using Caps to avoid “frivolous lawsuits” is the battle cry for Tort Reform and so far much of the success from this effort has been the ability to place low monetary caps on court settlements.  Wisconsin’s controversial Governor just passed a tough reform in his state.

The powerful documentary, Hot Coffee, which premiered on HBO this summer, has fired up the national debate and helps demystify commonly held misconceptions for us laymen. We all want a law to stop bully bosses.  But, each of us has the right to ask that a law reflects our desires and concerns.  Those that want to can easily ask their legislator to strike the Cap out of the bill.  Please read the insightful Atlantic article excerpted below and see the movie:

Everyone has their own spin for so-called “tort reform” laws. Here’s mine: In each instance, state legislators, who are elected largely through corporate donations, have acted to reduce the authority and ability of jurors to render meaningful verdicts against corporations. These lawmakers have interceded to protect corporate interests in advance, via statutes that nullify the facts of individual tort cases, with arbitrary damage caps that are designed more to protect wrongful defendants from liability than protect the victims of their wrongdoing. And the state judiciary, also now being bought and paid for in many states, has followed the lead of the legislative branch in undermining the role of the jury.

No one wants a “frivolous” lawsuit but what exactly is that, anyway? And who is better to decide what is “frivolous” or not? The lawmaker who caps out damage awards based upon the views of the lobbyist who has made a campaign contribution? Or you and your neighbor sitting in judgment on a plaintiff and her case? No want wants an “excessive” jury award but what exactly constitutes “excessive?” Was it excessive for the Gourleys to want the corporate defendants, and their insurance carriers, to pay the $6 million it will take to pay for Colin’s care? Nebraska lawmakers made that decision for the family, in advance, without regard to the facts of their case. Were they better equipped than the Gourleys’ jury to evaluate the definition of the word “excessive”?

Here’s more:

The message has been simple: Corporations are being preyed upon by plaintiffs, trial lawyers, and juries, each of whom are involved in some sort of cosmic conspiracy to transfer wealth from the rich to the poor by virtue of a damage-award verdicts. This propaganda implies that this redistribution of corporate wealth in this fashion is unconstitutional or otherwise unfair. The narrative also pits neighbor against neighbor, juror against juror, and thereby undermines both the letter and the spirit of the Seventh Amendment, which codifies a right to civil trial by jury.

In short, the “tort reform” movement has largely succeeded in making jurors out to be anti-American vengeance-mongers, a mob of citizens unhinged by law or logic and set loose upon innocent corporations. This is all wrong. Tort reform isn’t democratic because the people’s wishes are being expressed through state legislation. It’s anti-democratic because the lobbyists have succeeded in taking away the power of individual plaintiffs and jurors to set damage awards at an amount they feel is just. Remember, no damage award has ever been handed out to a plaintiff who lost a tort case against a company.

How has this marketing campaign been so successful for so long when it’s so obviously built on so many misconceptions about the justice system? Easy. For decades, the media machine dutifully has played along. Indeed, one of the most striking parts of Hot Coffee is its consistent use of old news broadcasts to highlight the extent to which journalists, on the whole, have miserably failed to explain the true nature of “tort reform” to their audience. So many people uninformed about the nature of a jury’s work! So many people underinformed about who benefits and who is burdened by tort reform!

Should Steve Jobs “management style” continue?

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Here’s a dilemma for those of us concerned about workplace bullies: Steve Jobs.  One of the arguments for ‘zero tolerance’ and proposed legislation is that no one is irreplaceable.   The public response to Jobs’ death heralding him as this generation’s Edison also praised him for his ability to utilize team work and it’s hard to imagine anyone waiting in the wings who could have had such a global impact.  But, stories about his true ‘management style ‘ have been public for years.  So the real question is, does Steve Jobs fall under the definition of a workplace bully?   Would legislation, like the bill proposed by the Workplace Bullying Institute currently pending in several States, have crippled Jobs’ ability to be a visionary of historic proportions?  How do we take academic and legislative definitions and apply them to real workplace relationships?  These are questions that all of us involved in lobbying for legislation need to wrestle with.

“Apple CEO Steve Jobs is known for his obsessive attention to detail and iron-fisted management style. He is often accused of making his subordinates cry and firing employees arbitrarily. But Jobs’ subordinates remain loyal. Several deputies–even those who have left the company–say they’ve never done better work. As one Apple employee told journalist John Martellaro, “His autocracy is balanced by his famous charisma–he can make the task of designing a power supply feel like a mission from God.” [Forbes 2009 ]

This week a New York Times article, “Defending Life’s Work With Words of a Tyrant,” begins with a story of grade school bullying.  If you do a Google search on the term “workplace-bullying” you’ll find most reporters LOVE to start with phrases like: bullying moves out of the playground and into the board room.  The New York Times is no exception:

The first time Steve Jobs ever bullied anyone was in the third grade. He and some pals “basically destroyed” the teacher, he once said.

For the next half-century, Mr. Jobs never let up. He chewed out subordinates and partners who failed to deliver, trashed competitors who did not measure up and told know-it-all pundits to take a hike. He had a vision of greatness that he wielded to reshape the computer, telephone and entertainment industries, and he would brook no compromise.

Maybe it is only the despair people feel about the stagnating American economy, but the announcement of the death of the Apple co-founder Wednesday seemed to mark the end of something: in an era of limits, Mr. Jobs was the last great tyrant.

Why do employees put up with it?

Most definitions of workplace bullying refer to a repeated pattern that includes actions like verbal abuse and humiliation that take place over time.  But, while the NYTimes article seems to confirm this pattern, why do employees put up with it? And more importantly, if they do buy in, is it still fair to call it bullying?

There are numerous articles that link narcissism to bully bosses.   Back in 2006, Forbes noted how difficult it was to work for visionary CEOs like Jobs in an article titled, The Narcissistic CEO.

The desire to change the system is a defining element of narcissism. And while it can be inspirational to work for someone like that, interacting with a narcissist CEO can be torture. Don’t expect praise. Get used to hearing the word “I.” And be able to take lots of harshly worded criticism.

Jobs talked openly with Forbes  about his management style and the work culture he was creating:

“When I hire somebody really senior, competence is the ante. They have to be really smart. But the real issue for me is, Are they going to fall in love with Apple? Because if they fall in love with Apple, everything else will take care of itself. They’ll want to do what’s best for Apple, not what’s best for them, what’s best for Steve, or anybody else.”

A players hire A+ players

Surveys and workplace bullying pundits say that bosses bully because they have low self-esteem and feel inferior to their employees.   But, according to Guy Kawaski, Jobs certainly didn’t fall into this category:

Actually, Steve believed that A players hire A players—that is people who are as good as they are. I refined this slightly—my theory is that A players hire people even better than themselves. It’s clear, though, that B players hire C players so they can feel superior to them, and C players hire D players. If you start hiring B players, expect what Steve called “the bozo explosion” to happen in your organization.

Jobs own take on his demanding reputation:

“My job is to not be easy on people. My job is to make them better. My job is to pull things together from different parts of the company and clear the ways and get the resources for the key projects. And to take these great people we have and to push them and make them even better, coming up with more aggressive visions of how it could be.” [CNN]

Should this ‘Leadership Legacy’ really continue?

Hopefully Jobs replacement will have greater empathy towards employees both here and abroad.  Considering the pride Jobs reportedly took in controlling each detail of the product he created, his apparent disregard toward the suicides and horrendous working conditions in factories in China that create the iPhone is deeply disturbing.  Back in 2009 the Harvard Business Review probably summed up his legacy as a leader best:

…Humility is not part of the Steve Jobs leadership repertoire — and that’s worked out fine for him. But humility has become a crucial part of the job description for leaders who aren’t Steve Jobs. So marvel at his products, applaud his feel for design, wonder at his capacity to cast such a large shadow over so many industries — and, by all means, pray for his speedy recovery and long health.  But don’t think you’ll do better as a leader by acting more like Apple’s leader. Trust the art, not the artist. [Harvard Business Review 2009]

RIP Steve Jobs!

This article was written on a MAC and published to iPads & iPhones everywhere.  

Ventura County Uses Workplace Violence Policies to Stop Bullying

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Last May  the Ventura County Grand Jury (CA) submitted their “Final Report on Bullying in the Workplace.”  Free of divisive and accusatory rhetoric it neatly outlines the need and procedures necessary to start correcting the situation.  Included in the report is a link to an online Sample Workplace Bullying Policy.   The report includes discussion of overlaps with existing discrimination and workplace bullying policies:

“FI-02. Processes in place to report workplace behavior problems are  not trusted by employees because  the  agency with the alleged  bullying issue is allowed to investigate complaints using personnel within its own organization. This system risks the exposure of a complainant’s identity  and reinforces employee perception that  the investigation would not be conducted fairly. (FA-05, FA-06, FA-12).”

“The Grand Jury recommends that the Ventura County Board of Supervisors (BOS) issue a policy against bullying and collect data to identify the existence and extent of bullying in branches of County government.  The CEO-HR should establish an independent process to report cases of bullying. This process should include a separate bullying hotline staffed by non-County personnel for documenting complaints. Investigations into bullying complaints should be coordinated by the CEO-HR. This should include direct oversight of all investigators and enforcement  of restrictions that preclude investigators from handling complaints within their own departments”

Board Response and Changes

Equally fascinating is the Boards response [September 2011].  NB: While some have said there’s no “bite” in the Grand Jury’s ability to implement changes, this approach should mesh well with the goal of many advocates for anti-bullying legislation who claim they are against large settlements and are really fighting to put policies and procedures in place.  The actions of the Board shows how quickly and cost effectively many of our workplaces can comply with needed changes.  SEIU did a survey that found widespread bullying.  Although it should be noted that their definition very broad.  Here are some “highlights:”