Ah, youth – that carefree stretch between birth and work where meals were free, innocence was rife and play was the order of the day.
That’s the myth, at any rate. For a lot of kids, youth was anything but carefree. They didn’t play – they were prey, constantly dodging playground bullies bent on delivering a diet of emotional and physical trauma.
For those batttered sould, the only solace was the hope that it would all be over once they matured and entered the workplace, where everyone was claim and reasonable. Less cowering, more Noel Coward.
But some discover that those playground bullies didn’t change much when they got a necktie and a 401(k) – except that they went from stealing lunch money to making life miserable for underlings and co-workers. And it’s led to a growing movement in workplace advocacy circles both to promote awareness of the problem and push legislation to fight it, over the objections of legal experts who say antibullying laws would do more harm than good.
“We’ve got more laws to protect animals than we do people,” says social psychologist Gary Namie, author of “The Bully at Work” and a pioneering antibullying advocate. “Relative protection – it ain’t there.”
Studies show that as many as 45 percent of American workers have experienced some form of harassment or abusive treatment during their careers. Antibullying lawsuits are on the rise. And legislation has been introduced in more than a dozen states, including New York, New Jersey and Connecticut, that would ease the way for workers to sue toxic colleagues for fostering “abusive conduct” or “an abusive workplace environment.”
Before you start to fantasize about seeing your slave-driving superior or obnoxious co-worker in handcuffs, though, some definitions are in order. Even a colleague who’s a first-class jerk doesn’t necessarily meet the definition of a workplace bully.
“We define it as repeated, health-impairing behavior,” says Namie, who was drawn to the problem when his wife was bullied. Such behavior includes “verbal abuse,” “work interference” and “conduct that’s threatening, humiliating or intimidating,” he says.
What’s behind it all, says Namie, is “the need to control another person. A bully boss is perhaps unskilled in human relations, but not in manipulation.”
Namie corrals bullies into four categories. Those who constantly berate colleagues, often in public, are “screaming Mimis.” “Constant critics” undermine by creating self-doubt, while “two-headed snakes,” though sweet to your face, will backstab when you’re out of earshot. Then there are “gatekeepers,” who control through omission, keeping other employees out of the know and cutting back on budgets so someone can’t do his job.
Lowering the bar
Professor David Yamada of Suffolk University Law School has studied workplace bullying for years. In response to the problem, he’s written legislation that’s serving as a model for most antibullying bills across the country, including New York and New Jersey.
Essentially the laws would lower the bar for those who want to bring suit against a tormentor. While one can sue now, such bids hardly ever win – these laws would improve plaintiffs’ odds by creating a set of criteria for what’s actionable. Under Yamada’s template, that would include “repeated infliction of verbal abuse such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person’s work performance.”
Yamada says the law has sufficient hurdles to prevent silly, vengeful lawsuits. The target must demonstrate “malice” on the part of the bully, for example, and “there has to be a tangible showing of physical or psychological damages.”
“That’s a pretty high standard,” he says.
In addition, the employee must first try to square matters within the company. If that doesn’t work, the upper limit on damages is relatively low in the New York and New Jersey bills, meaning repeated tirades from the boss aren’t necessarily a winning lottery ticket.
“If you don’t get fired, the emotional damages are capped at $25,000,” he says. “Most lawyers wouldn’t take on a case like that.”
A Pandora’s Box
While proponents of antibullying bills say they would throw suffering workers a lifeline, there are plenty of opponents who say the proposed laws are guaranteed to launch a torrent of frivolous lawsuits and otherwise cause more problems than they’d solve.
“Yes, there are vicious employees that try to undercut you at work,” says Jim Copland, director of the Center for Legal Policy at the Manhattan Institute. “But these statutes would enable a dramatic escalation in employment lawsuits. I think it’s a foregone conclusion that they’ll be abused.”
Copland says the laws are so vaguely written that almost any rift can give rise to legal action.
“Virtually any plaintiff can get a psychologist to testify to psychological harm,” he says, adding that such laws establish “a decentralized, jury-by-jury scale of control” of businesses. “Do we want courts acting as these grand personnel departments?”
Another issue is deciding what constitutes bullying. After all, one worker’s “tough love” is another’s psychic torment.
“It’s very hard to define. It’s a very broad spectrum of conduct ranging from rudeness to outright physical violence,” says Michael Fox, an employment attorney who’s written about the issue. “It turns a very subjective decision over to the courts.”
Conversations with a number of self-proclaimed bullying victims (see sidebar, opposite page) demonstrated the potential difficulty in drawing the line. Their stories ranged significantly in both credibility and in the seriousness of the charges – which ran the gamut from being physically assaulted to being badmouthed to colleagues. Are such issues worthy of a court’s consideration?
Those who say they’re not argue that there are already laws protecting people from abusive behavior at work – and say the legislation is an end-run around the negative reaction most courts take toward bullying lawsuits, which lose by an overwhelming margin.
“If it’s assault and battery, that’s one thing. If it’s blackmail, that’s one thing,” says Copland. “And for the most egregious cases, like racial slurs, we have laws on the books.”
Folks on both sides say the issue is resonating with the public; Fox, who says bullying is increasingly being cited in workplace lawsuits, even compliments Namie for doing a yeoman’s job promoting it. Barbara Reeves, a mediator at JAM, a national mediation service, says she’s noticed that more of her mediation sessions have concerned workplace bullying. But why?
Her personal theory: There’s more bullying – and more oversensitivity. Managers are under increasing pressure to be more efficient, with fewer people.
“Maybe they’re snapping a little faster,” she says.
And some bullies realize they can’t harass someone because of race or gender, so they’ve decided to spread it around to everyone instead of cutting it out completely.
On the other hand, she says she sees aging Baby Boomers who are discovering their lives haven’t been the series of triumphs they’d expected. Add a new 40-year-old boss to the mix, and the disappointment can transform into paper-thin skin. She sees a similar phenomenon with the youngest members of the workforce, a group she calls “the every kid on the soccer team gets a trophy” generation.
“They’re not getting trophies,” she says, “but they are getting sensitive.”
A Turning Point?
It’s anyone’s guess what the future of workplace bullying legislation will be. None of the pending bills has received a full legislative vote, notes Namie. Two different bills have been submitted in the New York State legislature. One, proposed by Nassau County Assemblyman Bob Barra, is similar to Yamada’s proposed law; another directs the state Department of Labor to study the bill.
The mere fact the bills exist doesn’t mean change is on the way, says Reeves.
“People will introduce a bill – ta-da – and it just sits there along with 200 other bills,” she says.
But the fact that advocates have put workplace bullying on the agenda in a dozen states shows the issue is gaining at least a measure of traction. Tom Witt, the “downstate” coordinator for the New York Healthy Workplace Association, believes the movement is on the cusp of acceptance, much like the movement against sexual harassment was 25 years ago.
“I feel that we’re right before that,” he says.
Copland at the Manhattan Institute doesn’t disagree. “I would hope it doesn’t go anywhere, but you see a lot of wacky fads becoming fashionable,” he says.
Getting out of harm’s way
Are you a bullying target? Since it’s not clear anti-workplace bullying legislation will become law anytime soon, experts say for now you’ll most likely have to quit to solve the problem.
“Get out as quickly as possible,” says Robert Sutton, author of “The No A-hole Rule,” a book on workplace jerks.
First, though, you should take several steps, says anti-bullying advocate Gary Namie. To begin with, identify the problem. Second, assess your physical and mental health. Third, do your due diligence, such as meeting with an attorney and reviewing whatever harassment policy your company might have. Fourth, build a “business case” against the bully by totaling the losses from absenteeism, lost customers and other factors. That information should be presented to someone above the bully, though not to the bully’s immediate supervisor, says Namie.
If it’s not possible to quit, have a polite confrontation with the bully, and document the bullying. After that, simply keep your distance, says Sutton, who doesn’t advocate taking legal action.
“It’s expensive and really bad for you mentally,” he says. “You’re going to have to live it over and over.”