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Ban The Bully

Since 2003, legislation to control the problem of workplace bullying has been introduced in a dozen states. But can legislating workplace behavior really solve the problem?

Tuesday, January 1, 2008
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Growing up with a younger sibling who suffered from severe physical disabilities, Sherrill Gilbert often stood up to schoolyard bullies on her sister's behalf. But when it came time to confront the bullies who inhabited the hospital where she worked, she says, she found herself in the fight of her life.

"What happened to me was horrendous," she says. "It went way beyond the norm."

Gilbert, who worked for a decade as an emergency-room secretary at a 1,100-employee hospital that she declines to name, claims she began to experience bullying when a new nurse manager came on board, bringing a gruff, militaristic demeanor along with her. "She immediately began promoting the most aggressive staff members into management positions," says Gilbert.

According to her, she constantly feared receiving yet another tap on the shoulder and being told to "march" herself into a room where she would be yelled at in front of other managers for infractions she insists she did not commit, including failure to provide phone coverage and paperwork errors. At times, supervisors would even physically block her from sitting down at her desk, says Gilbert, especially when she carried armloads of paperwork.

Even after she complained to the hospital's HR department, Gilbert says, nothing was done -- in fact, disciplinary letters were placed in her file and her manager's treatment of her only worsened. She began accusing Gilbert of poor performance despite her otherwise clean track record.

When she took her complaints to the hospital's board, Gilbert says, she was switched from full-time status to per diem, and eventually the calls to work just stopped coming.

Gilbert says she was so deeply traumatized by the experience that she was treated for depression and colitis.

"When this happens to you, it impacts every aspect of your life," she says. "It doesn't stop at just being a workplace issue, because when [bullies] get done with you, it is a lifelong issue." Gilbert is now taking her fight to the Vermont legislature, where she is the state coordinator for the passage of anti-bullying legislation intended to prevent others from going through what she had to endure.

A recent survey of American workers by Zogby International and the Bellingham, Wash.-based Workplace Bullying Institute, entitled the U.S. Workplace Bullying Survey, found that an estimated 54 million American workers (or approximately 37 percent of the population) said they have experienced workplace bullying. And some are fighting back.

Advocates of so-called "Healthy Workplace" initiatives have introduced legislation in 13 U.S. states since 2003 -- California, Massachusetts, Missouri, Kansas, Oklahoma, Hawaii, Oregon, Connecticut, Montana, Washington, Vermont, New York and New Jersey -- to address the issue and provide relief for employees who find themselves on the wrong end of a bully.

Despite this momentum, experts say HR leaders shouldn't wait for their state's legislature to address the issue. By creating their own anti-bullying policies now, HR departments can prevent workers such as Gilbert from being harmed in the future as well as avoid lengthy legal battles like the one currently being waged in Indiana.

In that case, involving heart surgeon Dr. Daniel H. Raess and perfusionist Joseph E. Doescher, Doescher claimed he was the victim of intentional infliction of emotional distress and assault by Raess during a 2001 incident at the hospital when Raess allegedly screamed and lunged at Doescher, telling him his career at the hospital was "finished." Raess also allegedly told Doescher he could not take time off to visit his uncle, who was dying in New Orleans.

The abuse caused Doescher to suffer severe depression and forced him to leave his $100,000-per-year job, his suit alleges. A jury returned a verdict in favor of Doescher on the assault claim and awarded damages of $325,000, but the Indiana Court of Appeals reversed the decision and called for a new trial, holding that, among other problems, a witness should not have been allowed to label Raess a "workplace bully."

The matter is now being considered by the Indiana Supreme Court.

Bullying Defined

Gary Namie, founder of the Workplace Bullying Institute and the prime force behind the bills and the Web site www.workplacebullyinglaw.org, workplace bullying is defined as "repeated, health-harming mistreatment" of a person by a perpetrator that takes on one or more of the following forms: verbal abuse; threatening, humiliating or offensive behavior and actions; and work interference or sabotage that prevents work from getting done.

According to researchers associated with Arizona State University's Project for Wellness and Work-Life, workplace bullying is most often "a combination of tactics in which numerous types of hostile communication and behavior are used." Behaviors can range from someone being rude or belligerent to someone screaming or cursing and can include the destruction of property, social ostracism and physical assault.

Namie notes that bullying typically manifests itself in a situation where something new, such as a new employee or a new system, is added to a once-stable situation. "Reorganizations are a perfect opportunity for bullies to thrive," he adds.

Anti-bullying legislation would be similar to federal discrimination and harassment laws, but unlike those laws, it would extend protection to all employees, regardless of race, age or gender. Workers would have to be able to prove that their health was damaged as a result of the treatment in order to prevail.

With the passage of such legislation, it would become unlawful for organizations to allow an employee "to be subjected to another employee whose malicious conduct sabotages or undermines the targeted person's work performance," according to an overview of the bill provided by WBI. The bill also punishes retaliation by the company against the complainant or anyone who helps the complainant.

The legislation does not call for the creation of any new state agencies, and those who wished to pursue a legal remedy would need to initiate a suit against the alleged bully at their own cost.

"The market itself will suppress the amount of complaints filed," says Namie. "The power of our law is not going to be in the 'tortification' of the issue, because those suits will present a huge financial burden to individuals who wish to pursue them. The real power of the bill is that it will 'incentivize' employers to prevent and correct this on their own. We want to expedite the voluntary participation of employers in the process of stopping bullying." 

Individuals may accept workers' compensation benefits in lieu of bringing action under this bill. In other words, if an employer allows a worker to file a workers' compensation claim as a result of proven physical, emotional or psychological distress from bullying, then the employee agrees not sue.

Namie says the legislation is necessary to limit workplace harassment because companies are reluctant to deal with the troubling issue on their own.

"If you wait on American employers to do anything voluntarily in the employee-protection arena, you'll be waiting a long time," he says. "This [bullying] phenomenon is shrouded in shame, and even the companies that are doing something about it are ashamed to say anything about it."

Even the victims of such abuse are often reluctant to step forward and tell their stories, says Namie. "It's hard to mobilize people who have been emotionally wounded by this," he says. "We're never going to get them to march in the streets, but [their experiences] can make for very compelling testimony."

Namie and Gilbert are far from alone in calling for reforms. The San Francisco-based Employment Law Alliance recently conducted a poll that revealed 64 percent of 1,000 American adults surveyed favored "specific legal recourse for the victims" of bullying.

One of the reasons Gilbert thinks a law is necessary is because she feels the hospital's HR department did not stand up for her. "HR failed me," she says. "They failed to follow their own policies. If a complaint came to them, instead of . . . doing an unbiased investigation, their solution was to attack the person [by placing disciplinary letters in the files of people] who complained because they saw them as the problem . . . . I felt like I was living in a Third World country, where if you spoke out, you were harmed." 

Gilbert considered filing a lawsuit against the hospital after her situation was not rectified, but says she could not find a lawyer to take her case. She says she called "every lawyer in Burlington" and was turned down by them all. "Nobody will touch it," she says, adding that the lawyers she contacted told her that even if she won a monetary award, it would be a pittance compared to the court costs she would incur.

Steve Hirshfield, CEO of the Employment Law Alliance and a partner at Curiale, Dellaverson, Hirschfield and Kraemer in San Francisco, is not surprised at lawyers' reluctance in taking on bullying cases in court. However, according to him, if the proposed legislation does become law, it will make it more likely that lawyers will take up such cases.

"There's very little incentive for lawyers to take these cases now," he says. "That will change if states start implementing statutory claims, where lawyers' fees are paid by the losing party instead of out of the settlement received by a common-law winner's claim. Because of the lack of legislation on the books, all you're left with is a common-law claim for intentional infliction of emotional distress and it's extremely difficult to prove. And you're leaving it up to a judge and jury to figure out what that's worth." 

Fight or Flight

The Zogby poll also found that 40 percent of the respondents said bullying resulted in their leaving their jobs, which translates to roughly 21 million American workers. In addition to adversely affecting a company's employee-retention rate, workplace bullies can also undermine productivity and safety, says Gilbert.

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"The unfortunate part is that [hospitals that allow bullying] are putting at risk not only the employees, but patients as well," she says. "When you have a hostile work environment, and you have people whose primary concern is to watch their own backs, that's when mistakes happen."

One company that has taken the bull(y) by the horns is Los Angeles-based Goodwill Industries of Southern California, which employs 1,600 employees in a variety of industries, including electronics recycling, light packaging and assembly work, as well as its well-known retail thrift stores. When president and CEO Doug Barr heard reports of "full-fledged bullying" by some employees within the organization in 2003, he knew something had to be done.

"I would hear from HR as well as people pulling me aside to report situations where staff would be shouted at in front of their peers, including job threats and sarcastic comments in front of [other employees]," he says.

To change what he calls an "atmosphere of fear in terms of management," Barr and HR Director Jennifer Oropeza-Flores asked their training manager, Sue Gutierrez, to find an expert to help them overcome the culture of bullying.

She contacted Namie's organization and began work on a policy that was rolled out in March 2004. Goodwill's anti-bullying policy is an extension of the organization's four stated values of respect, integrity, service and excellence.

"It really has a lot to do with the 'respect' value," says Oropeza-Flores. "We believe people can be held accountable for performance goals without [the supervisor] being a bully."

Goodwill's program includes a training session for managers and supervisors conducted by Namie, and mandatory orientation sessions for new employees on identifying and dealing with bullies conducted by Gutierrez.

A brochure is also mailed to all employees quarterly that explains how to identify a workplace bully, and includes the phone number for an anonymous tip line that employees can call to report a bully to HR. Periodic reminders are also attached to paychecks reminding employees of the company's policy on bullying and how to address it.

A new e-learning course on bullying prevention for managers and supervisors has also been rolled out.

Barr says the new policy quickly attracted the attention of Goodwill employees, due in large part to the subsequent resignations or terminations of four "higher-level" managers within the organization, including one store manager, who had been identified by employees and HR as bullies.

"That sent a message that we were really taking it seriously," says Barr. "This policy really has teeth."

Oropeza-Flores says there was some initial concern among administrative leaders that the new policy might have a negative impact on business margins. "They thought . . . 'If you don't give people latitude to be tough, then the work won't get done,' " she says. But she sees it differently. "We have not experienced a decline in our margins, because we've raised our expectations of how our managers treat people. It's part of a cultural change here."

Chances of Success

Despite the work of Namie, Gilbert and countless others, the fate of anti-bullying legislation in the states where it has been introduced remains uncertain at best. Of the 13 states where the legislation has been introduced, none has been passed into law and the proposed legislation is still active in only four states.

"I don't know if I'll see any of these laws passed in my lifetime," Namie says. 

The ELA's Hirschfield says he thinks it's too early to speculate on the chances of the bills' ultimate success. "I think because the bullying cases have been getting press, there's a certain sensitivity to the issue. But [there's] also a hesitation towards opening up a new avenue for costly litigation," he says.

He thinks the bills haven't had much success in getting passed to this point because "as a society, we realize the cost of employment litigation in terms of attorney fees and the time and resources spent defending these cases, both frivolous and meaningful."

"Even those people who believe this is a real problem are reluctant to enter into a whole new avenue of legal claims and regulations surrounding the workplace," he says. "In many cases, people are hopeful that there's a way to address the situation short of legislation." 

As for Gilbert, she remains committed to the fight against bullying. She says she is speaking up now in order to protect her children from such abuse in the future. "If I can help get this bill through, I will feel like I have been able to make a contribution to lots of people. I don't want my kids to ever, ever have their lives destroyed because some bully feels like he or she is entitled to do it."

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