Why the US Must Deem Workplace Bullying Unlawful


Denise A. Romano, MA, EdM. Certified EI Coach

Denise A. Romano, MA, EdM. Certified EI Coach

There are inherent power differentials in workplace relationships, and there is nothing wrong with that. It only becomes a problem when authority is misused and abused resulting in bullying, harassment, formal complaints, formal charges with external agencies, lawsuits, low morale, slander, harmful gossip, and workplace violence, among other things.

We can learn important lessons from the Yale workplace violence incident. First, we can learn that even if there is no overt incident or complaint, we still have a responsibility to be aware of the dynamics of workgroups and intervene if there are issues that could potentially provoke an employee’s disposition to murderous rage. How do we do this? We aren’t psychic.

Many states are now implementing mandatory workplace violence prevention laws that insist upon surveying employees, documenting incidents of workplace violence, and otherwise doing whatever possible to remain vigilant of risk factors for workplace violence.

What are the risk factors? The FBI tells us that workplace bullying is a high risk factor for workplace violence. So does a great amount of psychological research and occupational research and statistics. We know from OD research that emotional intelligence can be developed and improved and that combinations of improved emotional intelligence, sound conflict resolution skills, high-quality diversity training, and workplace cultures that mandate respectful interactions regardless of conflict are protective factors against workplace violence. So, why aren’t all workplaces doing all they can to implement protective factors and prevent risk factors?

We’ll get to that soon. First, an important look at the underlying employee experiences that are not as invisible as they seem if workplaces look for them. Workplaces can only competently address risk factors for workplace violence if they understand how to recognize them. And they can only recognize all of them if they actively look for them.

Workplace violence is preceded by anger, whether in our understanding of the situation that anger seems rational to us or not. We do have a responsibility to understand those workplace situations that produce anger in employees, even if in understanding those situations, we are forced to address uncomfortable realities about the workplace including the existence of various dysfunctions such as disparate treatment, cronyism, needs for diversity training, or needs for a complete overhaul of workplace culture. We must be willing to see these things and address them with intellectual and emotional honesty and integrity. We also must be willing to intervene.

Even the NY Times reports on how workplace bullying contributes to sleep problems: http://well.blogs.nytimes.com/2009/09/02/work-bullying-linked-with-poor-sleep/

Anger in workplaces that goes unexpressed either because the angry person is not making it known or because employees in general are not welcomed to provide feedback or complaints or because employees have directly been told to not express any anger, is a very serious risk factor for workplace violence. According to the FBI report on workplace violence:

“It is the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.”

“A plan should take into account the workplace culture: work atmosphere, relationships, traditional management styles, etc. If there are elements in that culture that appear to foster a toxic climate—tolerance of bullying or intimidation; lack of trust among workers, between workers and management; high levels of stress, frustration and anger; poor communication; inconsistent discipline; and erratic enforcement of company policies—these should be called to the attention of top executives for remedial action.”

“In defining acts that will not be tolerated, the statement should make clear that not just physical violence but threats, bullying, harassment, and weapons possession are against company policy and are prohibited.” (FBI, monograph on workplace violence).

Clearly, the murderer of Annie Le had something he was angry about. Was his anger rational? We don’t know. Does it matter if his anger was rational? Yes and No. Whether anger is rational or not, agreed with or not, understood or not; it does need to be acnkowledged and addressed skillfully by highly qualified professionals in workplaces.

His anger could have been addressed if those with the skills to address it with competence had been aware of his anger. Had there been awareness of his anger by the right people, and had his anger been acknowledged as a risk factor for workplace violence, this murder might have been prevented.

Mark Slaski, Phd, states that the expression of anger is about power. Issues of power and control in every aspect of humans’ lives are fertile ground for producing anger. There are striking resemblances between the misuse and/or abuse of authority or even assumed (not actual) authority in workplaces and issues around power and control in both cult (high-control) groups and domestic violence situations.

First, power and/or authority is being abused and mis-used in all of those situations. Secondly, the trauma that results for those on the receiving end of such abusive behavior is often very similar. Most employees have had childhood, adolescent, family, relationship, and other workplace experiences that involved the misuse of power and control that caused them to be very angry and/or feel unfairly victimized. This is a part of the modern human condition.

These experiences can range from the mild to the severe: We know that one in three American women has been sexually assaulted and approximately 1 in 10 Americans has been the victim of some kind of crime. We know that there is bullying in schools, hazing in high schools and colleges, bullying in workplaces, various forms of child abuse in families, hazing on athletic teams, clergy abuse, abuse and racial profiling by various police officers, and even abuse of authority by some TSA agents. We know that most people have experienced some form of unhealthy power and/or control over them, which has resulted in anger. We know that throughout human history there are examples of persons in positions of authority who abuse their power.

This teaches us that before anyone is put into a position of authority, they need – we all need – training to understand our authority, understand what abusing it is or would look like, understand how not to abuse that authority, understand our own anger at previous situations in our lives which might contribute to our likelihood of abusing our authority, and we must understand a framework of values to guide us during those situations when we might be most likely to abuse our authority.

This also teaches us that in workplaces, where there are many interactive relationships around authority, that we have a serious duty to ensure through trainings, workplace cultural values, and consistent application of policies and procedures that authority is not misused either brazenly or subtley. And when it is, we need to intervene to prevent the abuse and feelings of anger that result. Furthermore, when it results, we must work not only to prevent future instances, but to repair and make whole those who have been injured by the abuse of authority, otherwise, we invite dormant anger that can take any number of forms, including workplace violence.

Jill Sarah Moscowitz, a mediator and trainer, (http://www.nonprofitcareeradvisor.com/) teaches that workplace conflicts are messages to us about something that needs attention in the workplace system. She is absolutely correct, and the more we can look at these situations in this systems-approach way, the more able we will be to competently address and prevent workplace violence.

Often, unhealthy power and control-over (as opposed to healthy power that is shared, agreed upon, and somewhat fluid and flexible) – is also assumed by those who do not have actual workplace power or organizational authority. People who do this like to make others falsely believe they have more authority, skill, knowledge, experience, or organizational power than they actually have in reality. These people have a need to feel “more than” they actually perceive themselves, and because of their deficient emotional intelligence in every area, they often lie about what they know, what information they are privy to, who they know, who they have influence over, what their skills are, what their abilities are, prior positions they’ve held — and anything else they can think of in order to make others think they are more knowledgeable, skilled, “important” and more organizationally powerful than they actually are.

This points to deficiencies in every subscale of the EQi Emotional Intelligence measures: self-regard, emotional self-awareness, assertiveness, independence, self-actualiziation, empathy, social responsibility, interpersonal relationship, stress tolerance, impulse control, reality-testing, flexibility, problem-solving, optimism, and happiness. (http://www.mhs.com/ei.aspx)

To Learn More about Emotional Intelligence and How it Can Help Workplaces, Employees, and Management:

When a workplace allows one or more employees to regularly mislead other employees about how much organizational power they have, the workplace becomes complicit in supporting this subtle but very damaging abuse of power. These kinds of employees often create such false power and authority so they can then wield it abusively and misuse it frequently. Intimidation, coercion, gossip-mongering, and attempting to have unhealthy control over other employees are usually what results when this is allowed to go on.

Bullying and unlawful harassment will not be far behind these behaviors. The very troubling thing about bullying is that there can often be a fine line between what is considered lawful harassment in the US (bullying) and unlawful harassment. For example, consider a person who has cognitive or emotional disabilities that are covered by ADA (now ADAAA). Consider that these disabilities are largely invisible to most people. This person is disabled, yet the disability is not immediately apparent.

Now consider some co-workers who think they have a right to “lawfully” bully such an employee. They may be unaware of ADA and what their responsibilities as employees are to comply with ADA and ADAAA. Their training may not have gone into sufficient detail about what constitutes a disability and how some disabilities are invisible. They may say “we just don’t like him/her”. Whenever people say something like this, they are often covering up a known or unknown reason for disliking someone. Frequently, this reason — whether known or unknown — is due to bias based on an issue of identity such as those considered protected categories under EEO law. Many employees are smart enough to not say things like, “I don’t like him because of his race/sexuality/gender/age/disability” etc. And, there are still a great many people who react with primal disgust in a very unconscious way to those who are different from them in some way.

They may think they are well within their rights to bully and harass this person. What they don’t realize is that their bullying of this person based on attributes that are due to the invisible disability does qualify their behavior as unlawfully harassing under federal ADA, ADAAA, and EEO laws. This is a very serious issue given that the US (and worldwide) workforce has more and more persons with various disabilities in it. In the US, the population of disabled employees will only grow as more and more veterans return from active military duty.

A perfect example is a veteran who has PTSD. Such a disability is invisible, yet is very real. What might happen to a veteran with PTSD who is then bullied and harassed at work? Would this bullying constitute unlawful harassment under ADA/ADAAA and EEO laws? I think a more important question is why are we even asking if it constitutes unlawful harassment? Why aren’t we as HR professionals and as employees demanding that corporations mandate codes of conduct around civility and take them seriously? Where is the Department of Labor’s voice on this important point? Where are the voices of all employment lawyers on this important point? Rather than focusing on not wanting yet another thing that employees can take legal action over, why not address the enormous expense and risk for ADA/ADAAA/EEO liability that exists in refusing to address this? It’s alot like private medical insurance companies spending hundreds of millions of dollars on advertising to defeat a national healthcare plan so they can avoid having to spend hundreds of millions of dollars to insure people without health insurance. The money is still being spent; the costs are still there. Why not make the choice that creates the least personal and organizational harm?

We in the US (and in most other nations) have agreed that harassment, discrimination, and retaliation based on various characteristics is reprehensible and punishable by significant monetary torts as well as workplace monitoring by federal and/or state authorities. We have decided this as part of our societal norms. Those companies that choose to do business in the US agree to these terms. All persons who choose to work in the US also agree to these terms, whether they know it or not.

And if employees do not know that, then their workplaces are failing in their legal duties to prevent harassment, discrimination, and retaliation under EEO/ADAAA laws from happening at all.

The law says that workplaces have a responsibility to PREVENT harassment, discrimination, and retaliation based on those protected categories (which vary from state to state). Usually, policies, training, and behavioral norms in the form of workplace culture enforce employee behavior and do prevent this unlawful behavior. And, often, those things are not in place or they are but aren’t taken seriously, and then harassment, discrimination, and retaliation can occur.

Even if policies and training are in place, but behavioral norms of organizational leaders or those with great organizational power are not in alignment with these policies and trainings, then employees will model their behavior not after the policies and trainings, but after the behavior they see and experience. Harassment, discrimination, and retalitiaon can and often do happen under these circumstances. Slaski (http://www.markslaski.com/), taught this concept very powerfully in his recent lecture at the International Emotional Intelligence Conference in Toronto in 2009. Slaski discusses the importance of organizational modeling of behavior for employees and how if that is not present, policies and trainings are meaningless.

It’s very interesting that we’ve decided that harassment, discrimination, and/or retaliation based on certain categories is repehensible enough to warrant jury trials and multi-million dollar tort awards, but that the very same behavior not based on those categories is perfectly legal and those who suffer it have little to no recourse. The message this often sends to some corporate leaders is that “lawful harassment” is then none of the company’s business and there should be no policy governing or addressing it.

Smart companies will address all forms of harassment, including bullying, by clearly defining it, preventing it, prohibiting it, delivering consequences to staff consistently, and modeling behavioral norms in sync with these policies. I would like to recognize the Washington State Department of Labor and Industries for their excellent anti-bullying workplace policies: http://www.lni.wa.gov/Safety/Research/OccHealth/WorkVio/default.asp#Bullying

Not-so-smart companies, will allow bullying to go on, because afterall, “it’s legal”. Not-so-smart companies will also allow “equal opportunity harassers” to continue their behavior. “Well, they harass and bully everyone. It’s not because of any protected category in EEO law; it’s just the way they are; it’s just their personality. These are personality conflicts”.

These are not personality conflicts. When corporate leaders do not perceive the cost of allowing any employee in any position and at any level to behave in this way, they are in serious denial about the enormously costly damage that is done by allowing this behavior to continue. They also become absolutely complicit in any results from allowing this behavior to continue including formal complaints, the loss of high-quality employees who resign or lose motivation to work well, emotional and psychological harm restulting from this allowed behavior, risks for workplace violence, low staff morale, disregard for employment policies if this behavior is not seen as problematic, disrespect for a leadership that allows this behavior to go on, subtle dislike of the workplace, active dislike of the workplace, zero loyalty to the workplace, workers’ compensation mental health stress claims, and other serious problems.

At this point in time, given all the research done on workplace bullying and how harmful it is, there is no excuse for a corporate leadership to not know the very serious risks of allowing such behavior. The information is there in the psychological literature, in the workers’ compensation statistics compiled by the US Bureau of Labor Statistics, in the caselaw of those nations that have made workplace bullying unlawful, and in the countless cases of workplace violence in the US that have ended tragically. Given that we know what the risk factors for workplace violence are, it is stunning that we still look the other way and allow certain abusive behaviors in workplaces to continue. When we do this, we are clearly and loudly saying we are willing to risk workplace violence in our workplaces because we would rather not address those other unpleasant, inconvienent issues for whatever reasons.

Bullying in schools is finally getting the attention it deserves, though it took Columbine for that to happen. Columbine was not only an example of bullying at school; many people work in schools, and as we know, at least one teacher was killed during the Columbine tragedy. For that teacher, for his family and for everyone who knew him, Columbine was workplace violence caused by the results of unaddressed bullying.

The problem of having both lawful and unlawful harassment in the US is that this often confuses employees. Let’s revisit the situation of a veteran — or any other employee — with PTSD. He may not even know he has PTSD. He may have undiagnosed PTSD. Does that mean he doesn’t have a disability? Let’s say he is bullied and his emotional responses to events at work are ridiculed. Let’s say he is bullied because of his cognitive skills being affected. What are the risks in such a situation?

The risks are many. Because so many health issues and disabilities are invisible; HR, managers, and other employees cannot always know who has a disability and who doesn’t. And persons with certain disabilities are not required to tell the entire workplace, “by the way, I have this invisible disability, which is _________”.

The risks include huge lawsuits, workplace violence, low morale, conflict in the workplace that can spread from an individual level to a group level and become very entrenched, and a toxic workplace culture as result. Other employees who have deficiencies in Emotional Intelligence may observe one bully getting away with bullying and may then decide to also bully others. Workplaces with multiple bullies have signficant and serious problems as a result. This is undisputed.

The group dynamics implications of allowing bullying in workplaces are huge. Steven J. Stein, Phd, author of Make Your Workplace Great: The 7 Keys to an Emotionally Intelligent Organization and of The EQ Edge (with Howard Book, Phd), as well as David Caruso, Phd, Slaski, and other thought leaders have confirmed that emotions are contagious. Additionally, we know this from Tavistock group dynamics studies, experiences, and research. Given that we know that emotions are contagious, we have a responsibility to both prevent destructive group dynamics processes in workplaces and to also be aware of and intervene if any of these emerge. When these do emerge, we have a responsibility to learn what the causes of this are and to address those causes in order to prevent more destructive group dynamics processes from emerging.

For example, if one employee is being scapegoated, this points to a serious problem in the workgroup that points to group projections that may have to do with any or all of these: accountability, anger, envy, primal fear, primal disgust, etc. What we know about groups is that even if this scapegoated employee becomes fed up and quits or is terminated, the group dynamic is still present in the workgroup and it will repeat itself with someone else. It’s just a matter of time before someone else is “it”. For some reason, this group has a pathological need to have a scapegoat. This is a serious issue that must be addressed if the workgroup is to function in a constructive, productive, and healthy manner. In workgroups that engage in this kind of group scapegoating process, there are often disparate standards for measuring job performance as well as distortions among group members about what is true – organizational myths often become organiational “fact”. Even employees who are not actively involved in scapegoating operations in any way are harmfully affected by such dynamics as they perceive very clearly that joining the operation is implicitly expected of them and they also perceive that they could be next.

When humans allow what Slaski calls “primal brain” to overtake our ability to think rationally and we respond to situations without using emotional intelligence skills but rather respond not unlike junior high shools kids and allow groupthink and other aspects of group dynamics to direct our thoughts, feelings, choices, statements, rationalizations, and actions, we can easily get sucked into a downward toxic spiral. This is particularly harmful for workplaces. People who would ordinarily not engage in gossip will start to do so. People who ordinarily would not engage in ridiculing others will start to do so. Opinions of the targets of bullying and harassment will easily spread laterally just as costly unresolved conflict will. Myths that have no basis in truth will become organizational “fact” because they’ve been stated enough that people believe them.

Bernadette Poole-Tracy, EdD has done masterful trainings on workplace conflict management. She teaches HR, ADR, executives and employees of every level about conflict, what it is, what it is not, what will resovle it soundly and what will not resovle it. Again, the knowledge is out there for organizations that want it.

The cost/benefit analysis is a no-brainer: spend approixmately $100 (or less) an employee on preventative high-quality workplace conflict management training and roll out a clear policy addressing how employees are mandated to handle conflict or do nothing and spend much more per employee on complaints, investigations, legal fees, turnover, responding to formal complaints made to external governmental agencies, and low morale.

So, when disrespectful and ridiculing behavior rear their ugly heads in response to someone with invisible disabilities, the ADA and ADAAA are still being violated. This is a liability for the company and for those employees engaging in this behavior. By allowing bullying to occur because it’s legal or allowed, we run the risk of allowing behavior that is in fact unlawful to happen far too easily.

This just proves how dangerous bullying can be. It’s just like saying we’ve got two kinds of apple pie; one is made with organic apples and one is made with non-organic apples. You cannot tell by looking at the pie, by tasting the pie, or by smelling or touching the pie. The only way to tell is to read the recipe for each one or talk to the bakers. But this information may not be available. Substantively and on the surface, these pies seem identical. Yet they aren’t.

It’s the same in this situation and in many situations involving invisible disabilities and the very fine line between bullying and unlawful harassment. Very often, the only way to know if the bullying reaches the level of unlawful harassment is if we have access to private health information that is protected by HIPAA. But we all do not have access to this.

So, what is the greater risk? Creating policies, trainings, and corporate behavioral norms around a zero tolerance policy for any kind of harassment – unlawful or not — OR — deciding that your company is not going to make a policy to address behavior that isn’t techincally unlawful?

When employees are bullied or unlawfully harassed, we can easily compare this to the experience that battered spouses have. All relationship abuse is violent and horrible, but over and over again studies have shown that those persons who experience verbal, psychological and emotional abuse are often far more harmed than those who experience physical abuse. The reason is that verbal, psychological and emotional abuse are invisible. There are no bruises, broken bones, or lacerations. There is no external cue to the rest of the world that this person has been harmed, and frequently, those kinds of abuses are taken less seriously by law enforcement and even by some counselors. It may be more difficult for those persons to obtain needed services, protection, or recourse for their very real injuries.

Those who have been physically abused have certainly endured terrible trauma; yet they get the care they need because their sustained injuries are so visible and demand treatment. Invisible traumas do not always get the care they need, and this prevents and prolongs healing.

Bullying is just like invisible relationship abuse since there is often no recourse for the bullied employee, yet the wounds are just as bad as if the bullying had been unlawful harassment. What the current laws say to employees is this:

You’ve been called names, slandered, gossiped about, excluded, treated unfairly, lied to, lied about, scapegoated, ganged up on, treated with hostility, treated in a disparate manner, or otherwise mistreated – but we only care if those things happened because of this short list of characteristics. If those things happened because of some reason not on this list, we don’t care. Too bad. Deal with it.

Given the realities of group dynamics among humans in most workplaces, this is a slippery slope. We know that groups of humans in most workplaces will almost always devolve into destructive competitiveness, destructive conflict, and destructive bias unless there are mechanisms in place to consciously and actively prevent this. Another way to say this is that many adults have never left the school yard. Again, we look to a combination of policies, trainings, ongoing education, and the consistent modeling of corporate cultural behavioral norms by those with the most organizational power as an effective solution. We know that if any of those is missing, the others will become meaningless and destructive behaviors will reign in that workplace culture.

What is also fascinating when looking at workplaces is: What makes it perfectly okay in this workplace culture for certain people to be treated in certain ways? What makes it acceptable among this group of people to target those who are on the receiving end of gossip, slander, bullying, hostility, disparate treatment, increased surveillance, harassment, discrimination, workplace violence, retaliation, exclusion, or other forms of mistreatment? When someone says, “I just don’t like him/her”, where does that come from? Most employees are smart enough to know that they can’t say their reason for disliking someone is a protected category, and a great deal of personal disgust can actually be attributed to unexamined personal bias whether it is conscious or not. This is another reason why mistreatment on its own is just as harmful as “unlawful” mistreatment. The harmful and abusive behavior is the same regardless of what drives it.

When we look at the hallmarks of cults and high-control groups, we recognize that there is control exercised by the leader(s) over Behavior, Information, Thoughts, and Emotions. (B.I.T.E.) (www.freedomofmind.com). Cults and high-control groups accomplish this control over individuals in a group in various ways. It is often done gradually. Workplaces want to have a certain amount of healthy control over employees and this is accomplished in healthy ways by being straightforward and transparent about the goals: We all agree to abide by these rules and we will all be expected to do so consistently. The End.

This only becomes confusing, obfuscated, and abusive when key words in that sentence are not meant or true. For example, maybe we “all” don’t abide by these rules; maybe only some of us do. Or, maybe we don’t really abide by them, but we say we do. Or, we say this but we don’t even try or expect this. Or, we say we have a zero tolerance for harassment, but we really allow it to go on. Or we allow it to go on under certain circumstances — maybe when our star salesperson is the worst bully but we consider him or her too valuable to address problems with. Penny wise and pound foolish.

When mixed messages like this are sent to employees, they realize they really are allowed to behave outside of the stated rules and norms and many WILL do so.

Some workplaces will begin to mirror cult-like behavior by trying to control behavior, intellect, thoughts, and emotions either inconsistently resulting in disparate treatment or in abusive ways. For example, expecting or demanding differing emotional behavior from men and women because of discriminatory ideas about what men or women are. Or, demanding that certain employees only express certain kinds of emotions but not others; this can also result in disparate treatment and/or be just unrealistic as well as abusive and unhealthy.

Prevention is the key. Prevention must consist of policies, trainings, ongoing education, and consistently modeled behavior by those who are most powerful in the organization. Heather Amberg Anderson says that Leaders are in the business of influencing behavior, and she is correct. When it’s too late for prevention, as it is in many workplaces, intervention is necessary. If only someone had noticed this and intervened at Yale. Someone might not be dead.

Emotional Intelligence training, diversity training, sound conflict resolution training, and Non-Violent Communication training can all work together to prevent bullying, harassment, discrimination, retaliation, and workplace violence.

Every time there is an incident of workplace violence in the news, we all collectively wonder what happened. We wonder how it could have been prevented. We don’t really need to wonder about prevention. We have the answers. And, paying for EI training, diversity training, EEO/ADA training, sound conflict resolution training, and NVC training is alot less expensive and alot more pleasant than paying tens or hundreds of thousands of dollars in legal fees to address formal complaints, respond to formal charges from the EEOC or state human rights agencies, or to settle a lawsuit. And, there is nothing that can measure the costs of incidences of workplace violence upon all employees.

OSHA requires that employees be given a workplace environmet free from harm. The FBI cites workplace bullying as a high-risk factor for workplace violence eight times in a report on workplace violence, which has become a serious epidemic in the US (http://www.fbi.gov/publications/violence.pdf).

A white paper on SHRM characterizes workplace bullying as “the new sexual harassment”. Indeed, consider how sexual harassment was viewed before it became officially unlawful. There were many workplace leaders and lawyers who said, “Oh get over this; we don’t need yet another law to address this and we don’t need to legislate behavior”. But, we did need that law because of systemic sexual, psychological, and economic violence against women in the workplace.

As usual, the law has not yet caught up with clinical and organizational psychology. We know in the psychology field that the effects of bullying on someone are often extremely damaging and can often result in psychiatric disabilities whether those are temporary or permanent. We know that when two people are harassed in equally bad ways but one person’s harassment is based on a protected category and the other person’s harassment isn’t, that they are both going to suffer. Suffering does not cease because laws and policies do not recognize abusive and destructive behavior; in fact this refusal to recognize, identify, and sufficiently address the abusive and destructive behavior makes the suffering much worse.

Even those employees who have deficient EI skills will understand very clearly what they can and cannot do at work based on their corporate cultures. Permissive corporate cultures rely too heavily on assuming that employees understand what they can and cannot do without providing sufficient clear guidance, behavioral modeling, policies, and trainings.

We know that groupthink is a big part of this. In groups, humans will often do things they would never do individually. This can be harnessed for good, but left on its own in workplaces that are too permissive and do not adequately prevent abusive and destructive behaviors groupthink will often emerge around issues of competition, jealousy, exclusion, and unhealthy power and control over.

Any employee at any level who is deficient in EI skills and who is not given very clear behavioral guidelines, training, and modeling from their corporate culture can easily become a huge bully and/or unlawful harasser, causing extremely costly conflicts, unresolved conflicts, entrenched conflicts, conflicts that spread laterally throughout work groups and the entire organization, and conflicts that last years or even decades.

Even one conflict over something seemingly insignficant can easily draw in several people, can easily spread laterally, can easiliy last years and become very entrenched, and can easily harm morale, productivity, and the health of those involved.

And, when we look at Organizational Development and Organizational Psychology knowledge, we know that many conflicts arise out of misunderstandings, role confusion, ignorance of compliance responsibities, deficient EI skills, and actual bias. Emotional Intelligence research and knowledge teaches us that these can all cause the basic emotions of anger, fear, sadness, and disgust.

What is disturbing is when there are people in a workplace who derive personal and group joy from engaging in forms of bullying and harassment such as exclusion, gossiping, slandering, ridicule, scapegoating, etc. We know that when any person takes joy from someone else’s suffering, they are disconnected from their own pain. We also know that it is relatively easy for groups of people to derive joy from the suffering of others while denying they are in fact doing this. The holocaust is only one extreme example of this.

Anima Leadership Trainers based in Toronto, Canada (http://animaleadership.com/) use a combination of mindfulness practices, sound conflict resolution and communicaiton trainings, and Emotional Intelligence principles to provide experiential learning when they conduct their very effective diversity trainings.

It is very easy for a workgroup to unknowingly engage in any form of unlawful harassment without even knowing it and without any offending words to ever be communicated in any way. Subtle forms of this can include any kind of in-group/out-group dynamic based on any protected category. This is why impact is considered by investigators. It is entirely possible that a policy will say there is zero tolerance for retaliation, and yet mysteriously the impact is clearly that anyone who has ever made a formal complaint at the company has been placed under greater scrutiny than they were before or than other employees. Disparate treatment must be paid attention to even if there are no complaints. Disparate treament is another form of retaliation that can be subtle but extremely harmful and ultimately costly in many ways.

Most physical conditions are made worse by stress. Workplace stress is often more potent than other kinds of stress because it directly impacts people’s livelihoods and healthcare–their very survival. Workers’ Compensation costs often skyrocket in corporate cultures that have permissive cultures and do not adequately prevent abuses of power in the form of bullying, harassment, discrimination, and retaliation. All of these behaviors are very primitive kinds of abuses of power and control. These behaviors say, “I will mistreat you because I can get away with it”. This concept is the same in issues of domestic violence. Lundy Bancroft (http://www.lundybancroft.com/) teaches that men who abuse women do so “because they can”.

There is really no difference in the workplace. Abuse is abuse. Violence is violence. Harassment is harassment. Bullying is bullying. We now recognize the harm that schoolyard bullying does to children and adolescents who have taken their lives or otherwise suffered psychological trauma; there is no difference in these effects on employees in workplaces.

The very good news is that there are easy solutions for all of this that are much less expensive that lawyers’ fees and allowing lowered productivity and morale to exist as these destructive behaviors are allowed to exist. What it comes down to for organizational leaders is: What are you going to choose to invest in? Are you going to demand certain behavioral standards from all of your staff and from yourselves? Or, are you not going to demand certain behavioral standards from all of your staff?

If leaders are not willing to demand consistent behavioral standards from their staff members, they need to ask themselves why and they need to clearly realize the costs and consequences of not doing so. Henry L. Thompson, Phd, the founder of High Performing Systems, has done excellent work on Catastrophic Leadership Failure (trademarked), and explores how deficient emotional intelligence skills will lead to bad decisions, which you can read about here: http://www.hpsys.com/PDFs/CatastrophicLeadershipFailureOverviewv2_18SEP2007.pdf

The choice is clear: either choose prevention, education, training, clear policies, consistent policy application, and behavioral modeling by leaders OR risk lawsuits, increased workers’ compensation claims, formal charges of EEO violations, traumatized employees, costly unresolved conflict, entrenched untrue organizational myths, an injured corporate repuation, the loss of quality employees, and/or workplace violence.

The choice is yours. What will you choose for your company? Regardless of your position at your company, it is important to be aware of these issues and to raise them with your HR department and/or your boss.

One can only wonder what prompted the recent fatal case of workplace violence at Yale University. Since it has been classified as workplace violence, it will be interesting to follow any OSHA investigation into this as well as any legislative efforts around workplace violence prevention in response to this crime. There are currently at least 12 states in the US with legislative efforts to address workplace bullying. There are more and more states implementing workplace violence prevention laws.

Dr. Laura Crawshaw, The Boss Whisperer®, offers excellent trainings that address these important issues. Boss Whispering® is the art and practice of coaching abrasive bosses to rein in their agressive workplace behaviors. Much like horse whisperers who calm unmanageable horses, Boss Whisperers work to tame the fears that drive unmanageable managers to trample on coworkers’ emotions. Based on extensive research, this informative and enjoyable approach to developing interpersonal insight and changing behavior has proven effective with leaders at all levels. The process involves an initial two-day onsite assesment followed by regular in-person or telephonic coaching sessions. Positive results are usually evident by the third coaching session. Dr. Crawshaw’s important work can be found at http://exec-insight.com/.

“Violence in the workplace is a serious safety and health issue. Its most extreme form, homicide, is the fourth-leading cause of fatal occupational injury in the United States. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), there were 564 workplace homicides in 2005 in the United States, out of a total of 5,702 fatal work injuries.” (OSHA)

The most important point is that these are not just academic pursuits; OD, EI, diversity, and leadership researchers are also practitioners who work in the real world with real people in real workplaces. OD, EI, diversity, and leadership work is not ivory tower work; it is about observing what happens in work groups, learning what can be done better and why, and then intervening to address dysfunction and improve group dynamics and workplace culture. It is motivated by exactly the motivation described by Ruth Bader Ginsburg recently on 9/15/09 when she spoke at a law school and said she became a lawyer to make others’ lives a little bit better. She urged the law students in her large audience to use their law degrees to make people’s lives a little bit better.

In order for any of us to do this, we must approach workplace issues with intellectual and emotional honesty, we must develop our EI, we must apply standards and policies consistently, and we must use all of the knowledge and research available to us in order to do the best we can for any workgroup. This is true whether we are HR/OD professionals, attorneys, organizational leaders, learning officers, consultants, mediators, investigators, board members, trainers, or others who have any influence over the issues facing modern workgroups.

What we can learn from the Yale murder is that it is our responsibility to observe, survey, solicit feedback, and intervene in workplace environments. If someone says someone else is controlling and territorial, that is something to address and intervene in before it escalates while we aren’t looking. If someone else is prone to explosive temper, it needs to be taken seriously. If there is ridicule, gossip, bullying, or other behavior that points to in-group/out-group or scapegoating operations, we need to intervene.

Intervention can take the form of coaching, training, transferring employees, mandating anger management, demanding changed behavior, mandating emotional intelligence development for all employees, implementing corporate cultural values, using experiential trainings around diversity, conflict resolution, and communication, and other actions.

What is most important for those of us who intervene is that we name situations clearly and transparently what they actually are. When we say that bullying is bullying, violence is violence, harassment is harassment, disparate treatment is disparate treatment, discrimination is discrimination, errors are errors, screaming is screaming, dishonesty is dishonesty, etc., we keep ourselves and others intellectually and emotionally honest. When we fail to do this or fail to do this consistently, we become part of the problem and can actually do much more harm than good.

When we look at other forms of violence and assaultive, unhealthy power and control-over others in various slices of modern human existence, we can see a history of behavior that can only be described as denial.

Rape victims have been blamed for dressing too provacatively, “asking for it”, “wanting it”, and otherwise held responsible for the violent and life-changing assaults they’ve endured.

Children and adolescents who have experienced incestual violations have long been ignored as the family was considered a soverign domain in which no authority had the right to intervene. Some children and adolescents have also been accused of having “asked for it” or have been blamed for having been “seductive”.

Before the Civil Rights Movement in the US, victims of lynchings were said to have been “uppity” or have “not known their place”.

Gay people who were unjustly victimized by the police in the Stonewall Riots were blamed and told they deserved the violence they received.

It is important to address conflicts in workplaces in a sound manner and to do so with as much training as possible. Certainly it can be useful to explore how each party has contributed to a conflict, however, when one party’s contribution is simply that they are a woman, are of color, are disabled, are gay, are trying to do their job, etc., it does need to be made clear that there is no sharing of blame or contribution to a conflict. There are times when conflicts in workplaces exist simply because one person is abusing another because of a personal need to abuse someone or because of needs for trainings around diversity issues or sound supervisory skills. Blaming when it is unwarranted is the kind of dangerous dynamic that can become contagious, can become a group dynamic, can result in scapegoating, and is an indication of a severe workplace problem that is most certainly a risk factor for workplace violence.

By all accounts, Annie Le had no trouble with her accused murderer and co-worker. However, clearly, he had a problem with her. I doubt that anyone would say Annie Le had any contribution to her death. Therefore, it is important for us to bear in mind that if she were alive and there were to be some intervention, we would want that intervention to be done soundly. It is ill-advised to demand that a victim of any form of workplace violence share blame for the situation when that is not true. Untrained persons in workplaces who attempt to resolve conflicts by making everyone share the blame equally do more harm than good. It is extremely important to bring in qualified, ethical mediators and to bring in qualified, ethical trainers to mandate sound conflict resolution skills for all workplaces.

Prevention is acheivable. And it is worth the money in that it will save lives and it will create healthier workplaces.

NYSDRA (www.NYSDRA.org) has one of the most brilliant workplace conflict mangagement trainings that exists. I recommend it as highly as possible. Bernadette Poole-Tracy, EdD is the presenter of that training and her combintation of ADR and OD knowledge and experience are like an innoculation against workplace violence, bullying, dysfunctional conflict resolution, and ignorance around the enormous costs of unresolved workplace conflict.

There is no longer any excuse for any workplace to be without these crucial trainings that save money, time, unnecessary angst, harmful stress, and lives.

For more information on how bullying harms workplaces, see Chapter 8 of The HR Toolkit: An Indispensable Resource for Being a Credible Activist.

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About Denise A Romano

Denise A Romano is the author of The HR Toolkit: An Indispensable Resource for Being a Credible Activist, published by McGraw Hill in 2010. She is a workplace expert and has a strong interest in government, business, workplace and personal ethics. She can be found on LinkedIn and Twitter. View all posts by Denise A Romano

2 responses to “Why the US Must Deem Workplace Bullying Unlawful

  • Denise

    There is an epidemic of violations public safety, fraud, and corruption laws that are directly related to labor law violations in government entities and US corporations. Despite this Ethics Commissions, AGs & IGs are unresponsive to labor violation complaints in workplaces and government, even when proof is submitted, tax dollars are misused, and there are rampant ethics, safety, and other compliance violations. The EEOC, OSHA, and State Divisions of Human Rights are underfunded and understaffed, thus their responses to these complaints are almost always delayed and insufficient.

    Given that all government employees are required to report legal and ethical noncompliance, mandatory imparital investigations must be implemented without exception and accompanied by absolute prevention of unlawful retaliation against complaining employees. There must be a freeze on any termination of any complaining employee while a sound, impartial, unbiased and thorough investigation is completed, and even afterwards, retaliation against complainants must be prevented.

    Violations of EEO, OSHA, public safety, retaliaiton protections, whistleblower protections, ADA, union-protections and fraud/corruption prevention laws must be classified as serious crimes that result in prosecution. There is extremely insufficient protection for employees who use apropriate channels to report noncompliance in both government and corporate workplaces.

    Currently, legal compliance with US labor laws is essentially optional for corporate and government workplaces. Only employees who can afford lawyers have a chance of recourse. Most lawyers will not take cases on contingency, even if complaining employees can prove employer noncompliance with labor and other laws. When there is rare justice, it comes years later – often after unlawful termination and great damage to health, families, and finances.

    Most legitimate employee complaints are dismissed by noncompliant employers who unlawfully retaliate against these employees, terminate their employment and health coverage and pay them a small sum for which they are desperate and on which they are taxed. This money almost always comes with a gag order, the dismissal of the complaint with government authorities so there is never an investigation, and the continued employment of those guity of serial noncompliance and other violations of law, which remain unremediated.

    Many General Counsel attorneys falsely believe their duty is to protect the corporation by any means instead of ensuring legal compliance and remediating noncompliance according to non-retaliation laws. GCs who knowingly cover up unlawful practices in corporations and government entities must be addressed by the criminal justice system and BAR associations given the enormous financial fraud perpetrated upon taxpayers and shareholders when significant funds are used to unlawfully retaliate against employees who exercise their rights to complain about noncompliance. When this occurs in government entities, it is fraudulent misuse of taxpayer money.

    These crimes are epidemic and do require deterrence in the form of large fines, improved processes for complaining employees, and guaranteed sound impartial investigations into unlawful practices, even whenthere are settlements with complaining employees. Gag orders need to be made unlawful, regardless of settlements with employees.

    Please Sign this Petition @change : Demand Legal Compliance in US Workplaces http://chn.ge/bO31L8

  • Former fed

    “The FBI cites workplace bullying as a high-risk factor for workplace violence eight times in a report on workplace violence, which has become a serious epidemic in the US (http://www.fbi.gov/publications/violence.pdf).”
    If anyone knows about workplace bullying, it is the FBI. I know because I suffered horrific abuse at one of their dysfunctional field offices. I have been supremely educated in discovering the reasons why most cases of abuse and harassment go unreported. Good luck to anyone who can fight these agencies and win, make sure you have a great Employment Law attorney and lots of money.

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