Can You Survive The Office Witch Hunt?

I was fascinated by a recent series of articles in the Huffington Post written by Dr. Janice Harper and decided to learn more about her work.  [Harper is the author of MOBBED! A SURVIVAL GUIDE TO ADULT BULLYING AND MOBBING ] Her 2010 paper, Just Us Justice, is the culmination of lessons learned from a chilling personal experience with mobbing in the workplace.   Anyone uncomfortable that she links this phenomena to lessons learned from the Holocaust should read the in-depth article, Trial by FBI Investigation.  The author details Harper’s horrific descent into what has been called an academic witch hunt.

I decided to give her a call and quickly found myself deep in conversation with a fascinating woman.  She gave me permission to re-print excerpts of Just Us Justice which include Harper’s own perspective on how to survive mobbing.  As important, she raises questions about the efficacy of laws, “zero tolerance,” and the “bully label.”

Just Us Justice

…If you are being mobbed, take an honest look at yourself and your own behaviors in fueling the aggression. Doing so does not in any way justify the violence that is being directed toward you, but just as you learn not to look a grizzly bear in the eyes if you should come across one, figure out what you are doing that is provoking your attackers. Don’t confront your attackers. Retreat, quietly document everything, but get your resume together and start applying for jobs – even if you don’t want to leave. Protect your reputation, safeguard your security and increase your options for escape. Do not accept any claims that you deserve this treatment, but do not accept the victim label, either. You have been mobbed because you have done something – however well meaning, however benign, however unintended to hurt anyone, however legal – but you have done something to trigger a violent reaction in others. The sooner you are able to identify what you have done to trigger these emotions, the sooner you can change your own behaviors and more favorably influence perceptions of you until the mob either diffuses, or you get out of their reach and into a new future…

How Survival Operates

Fighting the mob is like fighting a grizzly bear. When the bear goes after you, friends are going to run as fast as they can – away from the bear. And if you run in their direction with a grizzly hot on your trail, they will be outraged – not at the bear, but at you for putting them at risk. So what do you do once the bear gets a hold of you? Have a fair fight? Give that bear everything you’ve got? Good luck.

The more you fight a grizzly bear, and the longer you are visible and moving, the meaner that bear is going to get. What that means in an organizational setting is that you are no longer engaged in the warfare of work, but are instead facing a genocidal process. Leadership has given the signal that you are to be eliminated and it is okay to attack you, the mob has formed and the bear is coming your way. The more you fight the mob, the more force will be used to compel your elimination – regardless of how accurate, fair or even legal the claims are that are used to justify your elimination. Your anger will be treated as evidence of threatening behavior, your fear will be evidence of paranoid thinking, your confusion will be evidence of your erratic state and mental impairment, and your impaired productivity – from having your responsibilities taken away, your contributions ignored, your time invested in specious “investigations” and fighting for your job, and your emotions exhausted by the sheer weight of the battle – will become evidence that you can’t do the job. Importantly, reason – and public scrutiny – will not stop the aggression, but intensify it. The more you demonstrate that the attacks against you are wrong, illegal and just plain cruel, the more wrong, illegal and cruel they will become.

In order to survive, it may be helpful to take a lesson from those who survived the Holocaust. When the Holocaust got underway, those who fled early suffered the least and recovered the fastest. The longer a potential target remained in the shadow of the genocide, the more they suffered. Thus, the moment you discern the first scent of mobbing heading your way, lay low; if the mobbing has progressed, play dead. It may be necessary to file internal complaints to preserve potential legal claims, but the more you do, the more the aggression will intensify, so ask yourself if you really want to go that route. You may well lose your job unfairly, even illegally, and suffer grave losses as a result. But battling the grizzly bear can cost you your life.

To save it, consider these tactics:

  • The more evidence you produce to defeat your attackers’ claims and actions, the more determined they will be to get rid of you – which means finding fault any way they can. Mobbing is not a conflict over facts and reasons, but a conflict over power and emotion. Reserve the evidence for future legal claims if you must, but whatever evidence you provide, keep it to a minimum, fact based, and stripped of emotion or counter-attacks. It may be helpful to have an attorney or pragmatic friend – unassociated with the workplace – draft your complaints or responses for you to be submitted in your name, to minimize the emotion.
  • Communicate to your closest friends and colleagues at work (or wherever it is that you are being mobbed) that you want to keep them out of this and will be keeping your distance until this is over. They will be relieved, grateful to you, and have less reason to turn on you. Get your emotional support elsewhere.
  • Do not assume that if your conflict involves your status as a member of a group of people (by gender, race, ideology, whatever) that other members of the group will support you, no matter how blatant the discrimination. They will be courted by management, provided rewards, and they will be afraid. They will almost always turn against you. The exception to this rule is when the group has been established within the organization for some time and they are secure with their positions – in other words, they have critical mass. The less diversity within the organization and the more recent the diversification of the workplace, the more likely the other members of the group will declare that there is no discrimination and you are the problem.
  • Similarly, do not expect that if you file a sexual harassment action, that feminists will support you, and do not expect that if you are accused of sexual harassment, that men will support you – no matter how vocal they have been about their views on the topic. For the same reasons that those closest to you and a member of your same group are likely to turn on you, you will be alone if you file, or are subjected to, any internal investigation.
  • Do not expect that a person’s political ideology, stated values, or religion will have any bearing on how they respond to your attack. The more they are committed to a moral framework, the more strongly they will likely condemn you so that they can persuade themselves that they are acting within their moral code.
  • Beware the bully label. If you are angry, complain, or express anything negative, you can expect to be labeled a bully at some point in the mobbing process. Zero tolerance policies for bullying, sexual harassment, racism, discrimination, and workplace violence might sound like progress, but they enable an organization to justify eliminating anyone once they are accused of any of these offenses. Lay low so that you are not accused.
  • Bear in mind that the most effective accusations are those which are outlandish, and/or contrary to everything you openly believe in, a principle which Joseph Goebbels well understood when he advised Hitler that if you tell a lie big enough and often enough, people will believe it. If you openly oppose sexual abuse, you may well be accused of sexual misconduct. If you openly oppose racism, you may well be accused of making racist remarks.
  • This is because people tend to believe an accusation of such nature could not possibly be made unless there was some evidence to support it.
  • Moreover, as people are conditioned to view you adversely and be prompted by “concern” for you and to “watch for” certain signs, they will see what they are told to look for.
  • Do not expect threats of lawsuits, appearances by attorneys, internal investigations, transparency, or reporters to calm the storm. It will worsen it. If you consult an attorney, do not let your employers know. An attorney eager for a lawsuit will probably not have your best interest in mind.
  • Get out. No matter what the cost, mobbing is not something most survive. Take pro-active steps to protect your health, career and finances by finding new employment, before your reputation and your spirit are destroyed. Whatever the costs of leaving, consider your assets and preserve then. Leave before your reputation is destroyed, your finances wiped out by attorney fees, your spirit savagely attacked. When you are at war, you can win. But mobbing is not a form of warfare, it is a form of genocide, and the only way to survive genocide is to flee.
[Note: Anyone currently experiencing mobbing should always seek in-person counseling from reputable experts to determine the best way forward based on their own unique situation.]  
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Can you win a lawsuit if workplace bullying legislation passes?

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

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.


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.

Documentary Features Foxconn Factory Workers

Shortly after Steve Jobs’ death hit the news, I caught an early morning round table discussion with Mike Daisey.  He is funny!  But, as he talked about his latest one-man show, The Agony and the Ecstasy of Steve Jobs, I was really hooked by his delight in shocking those members of his audience from Apple who outsource their product to factories in China.

“[The Agony And The Ecstasy] follows the standard line: Jobs was a combination of awesome visionary and ruthless businessman. He doesn’t tell us anything that we haven’t gleaned from Jobs’s obituaries, but that isn’t the point. The point is to ask us why we are not more troubled by the fact that our indispensable gadgets are assembled in part by children.”  [The Financial Times review]

Surprisingly, I couldn’t google up a video of Daisey’s monologue – except one in which 87 members of a Christian advocacy group staged a walk out.  But, I did find a Vimeo clip from Dream Work China, a documentary made by three Italian journalists who opened a photo shop across from the Shenzhen Foxconn factory [see video below]. They captured interviews with factory workers that represent the dreams of the millions of young Chinese migrant workers who leave their homes and families and travel long distances to work in factories – like Foxconn just across the street. Probably most disturbing are the scenes of dormitories with packed balconies overlooking the nets hung below as a painful memory of the suicides.

About a year before his death, the Daily Mail quoted Jobs as defending the conditions at Foxconn:

‘You go in this place and it’s a factory but, my gosh, they’ve got restaurants and movie theatres and hospitals and swimming pools. For a factory, it’s pretty nice,’ he said.

Jobs has been extremely outspoken about the need for his employees to be passionate about the products they create.  To bad this desire to inspire others and the understanding of the need for a creative and meaningful life didn’t trickle down. Then again, this is the same man who, according to his official biography hitting the bookstores Monday,  personally complained to President Obama that regulations on business are too tough to build factories here.  And, was frustrated that Obama was so focused on trying to understand why things happen.

“In the suburbs of Shenzhen, in Guangdong province, young workers talk about their lives, existences built on a precarious balance between hope, struggles and wishes for the future. Around them activists and NGOs strive to give sense and meaning to words like rights, dignity and equity.”

Visit the Dream Work China for more information

Here’s an hour long interview with Mike Daisey from CSpan

Tell Your Story!


WORKPLACE BULLYING: A 9/11 Story of Healing

9_11_01 WTCFor fifteen years my husband Farrell and I lived within 3 blocks of the WTC.  On Sept 11th I stood on the corner of Warren and West Broadway as the first plane flew over my head and became lost in a fireball.  I ran an excruciating block to find Farrell and the two of us shared what we thought were our last kisses.  We continued watching the Twin Towers helplessly while so many lept to their deaths.  The crowd around us hushed as the next plane appeared ominously in the sky and the world turned upside down.  After months of evacuation the City finally deemed our building safe and we returned to our artist loft — only to be priced out three years later by the “recovery efforts.”  Our neighborhood had become the most expensive and desirable real estate in NYC. But, whatever happended and wherever we would end up, we were thankful to be alive and have the gift of rebuilding our lives. Continue reading