Employment lawyers and workplace bullying

How has the emerging American legal response to workplace bullying started to impact the legal profession? Here is a collection of posts examining the relevance to employment lawyers representing workers and employers alike:

1. Corporate Counsel: Taking workplace bullying legislation seriously (2012) — The possible enactment of the Healthy Workplace Bill has gone from pipe dream to reality.

2. When bad employers retain thuggish employment lawyers (2011) — The worst employers seem to be magnets for the most obnoxious employment lawyers.

3. Workplace bullying legislative movement prompts changes to employer liability insurance practices (2011) — When insurers get into the game, you know there’s an impact.

4. Workplace bullying laws are “just a matter of time,” says New York Law Journal (2011) — Reporting on a piece in the influential daily newspaper of the legal profession in New York.

5. Workers, their lawyers, and workplace bullying (2009) — How lawyers for workers can help their clients, even within the current limitations of the law.

6. Employers, their lawyers, and workplace bullying policies (2009) — How lawyers for employers can counsel their clients toward productive and healthy workplaces.

OSHA cites convenience store owner for workplace violence risks

The Occupational Safety and Health Administration, which administers and enforces the federal Occupational Safety and Health Act, has cited a convenience store owner for allegedly failing to safeguard its employees from robberies and other forms of violence on the job.

In the Matter of TMT Inc.

Bruce Rolfsen reports for the BNA Daily Labor Report (Nov. 30, by subscription only):

Citations issued Nov. 19 against a Texas convenience store owner for allegedly failing to protect workers from robberies and other violence marks an increased willingness on the part of the Labor Department’s Occupational Safety and Health Administration to use the general duty clause as a tool to prevent workplace violence.

OSHA cited TMT Inc. with four alleged violations of the general duty clause, one each for Whip In stores in Garland and Mesquite, and citations for two stores in Dallas. Proposed fines total $19,600.

. . . The citation announcement marked the first time in recent memory that OSHA has used the general duty clause to cite a convenience store operator for violations related to workplace violence, according to observers who follow convenience store safety.

 

General duty clause

OSHA issued the citation under the law’s general duty clause, which requires employers to provide workers with conditions of employment “that are free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Despite thousands of individual regulations addressing workplace safety promulgated under the Occupational Safety and Health Act, there is no specific provision addressing workplace violence. However, OSHA has released a fact sheet on workplace violence and engaged in educational initiatives for employers about the subject.

Application to workplace bullying?

OSHA’s recognition of workplace violence as a serious hazard raises hopes that workplace bullying, too, will get greater attention.

The National Institute for Occupational Safety and Health, the federal government’s research arm on workplace safety, has included bullying in its studies of workplace violence and aggression and hosted meetings of leading researchers to discuss the impact of bullying on worker health.  NIOSH researchers have examined organizational dynamics of workplace bullying and the implications for intervention strategies.

Back in 2005, I participated in a working group convened by NIOSH to examine workplace bullying and psychological aggression. This included a day-long session in Cincinnati that, to this day, remains one of the most intense and insightful exchanges I’ve participated in on this topic.

We can now at least imagine the possibility that research findings about the harm caused by bullying will lead to a stronger regulatory response.  As I’ve noted earlier on this blog, some of the analysis for that response may be found in the work of professor Susan Harthill of Florida Coastal School of Law, who has argued persuasively that occupational safety and health law can be part of a multi-pronged approach that includes collaborative and cooperative efforts between public and private employment relations stakeholders.

Limitations

Of course, mild penalties are one of the genuine limitations of current federal workplace safety law, as reflected by rather paltry proposed fines (under $20,000) in the TMI case. In addition, this statute does not allow individual claims for damages by injured workers. Identical limitations would apply in workplace bullying situations as well.

Nevertheless, this is a step in the right direction, and with the current Administration in place for another four years, it bears watching.

Georgia’s Fulton County draws from Healthy Workplace Bill in adopting anti-bullying policy

The Commissioners of Fulton County, Georgia, by a 7 to 0 vote, have adopted a workplace anti-bullying policy that covers county employees. Under the policy, suspension and termination are possible sanctions for those who engage in severe bullying behaviors.

The Fulton County measure draws its definition of bullying from the Healthy Workplace Bill, model legislation I drafted that is serving as the template for bills introduced across the country. The policy prohibits abusive conduct such as repeated derogatory insults and epithets; conduct of a threatening or intimidating nature; and the deliberate sabotage of someone’s work.

The policy initiative was spearheaded by County Commissioner William Edwards. Fulton County is a major governmental entity; it encompasses most of metropolitan Atlanta.

Significance

This is yet another sign of growing receptivity to legal protections against workplace bullying in the U.S., and it serves as a tacit endorsement of how the Healthy Workplace Bill has defined workplace bullying. It also helps to validate our strategy of building support for workplace bullying laws by using the states and local governments as laboratories for legal reform.

This approach, in turn, is helping us to build national visibility for our movement. This was exemplified last month by a successful news conference about the Healthy Workplace Bill at the National Press Club in Washington D.C., hosted by the Workplace Bullying Institute and featuring speaking appearances by national labor and civil rights leaders.

The Fulton County measure follows a string of successes by healthy workplace advocates during last month’s Freedom from Workplace Bullies Week. Not only did the week include the aforementioned Washington news conference and a successful program in Boston, but also it resulted in some 100 proclamations of support from county and municipal governments across the nation.

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For more on the Fulton County policy, go to Dr. Gary Namie’s blog commentary here. For the full resolution and policy, go here.

How will the 2012 Presidential election affect federal employment and labor law?

Obviously it’s too early to say with any certainty what a second Obama term means for employment and labor law at the federal level, but I took a look at some of the employment law blogs and am happy to suggest these three as a starting place: 

Verdict still out, but look to the federal agencies

Law professor Paul Secunda (Marquette) writes on Workplace Prof blog:

First, I think the verdict is still very much out on  whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term.  It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.

While Paul doesn’t expect much in the way of new legislation, he anticipates “the most important developments happening through federal agency adjudications and rulemaking,” especially via the National Labor Relations Board (addressing labor and collective bargaining) and the Equal Employment Opportunity Commission (addressing employment discrimination).

Not much, if you treat your workers fairly

As the votes were still being counted and Ohio remained up for grabs, management employment lawyer Jon Hyman noted on his Ohio Employer’s Law Blog that while “(t)he President has a large impact on labor and employment policy in this country,” employers who treat their workers fairly won’t have to do anything very different:

And yet, whether we have President Obama or President Romney for the next four years shouldn’t make a lick of difference on how you manage your employees. You should still follow the golden rule. You should still treat employees with dignity and respect. You should still pay employees for all the hours they work. You should still avoid discrimination, and harassment, and retaliation.

No huge changes, but several items to watch

Management employment lawyer Daniel Schwartz, writing for the Connecticut Employment Law Blog, cautions against expecting huge changes:

But the impact for employers will probably be far less than was suggested during the campaign season.  Much will depend on the level of compromise that comes out of Washington. 

However, he does flag four items to watch: The implementation of health care reform, more pro-employee actions by the National Labor Relations Board, possible extension of federal employment discrimination law to cover sexual orientation, and possibly greater attention to gender pay equity issues.

eBossWatch’s 2012 list of top employment lawyers

eBossWatch, the popular and feisty online site that allows workers to evaluate their bosses and workplaces, has announced its 2012 list of the top employment lawyers:

These top workplace harassment and discrimination attorneys have successfully represented and obtained significant financial awards for their clients, employees who alleged that they were subjected to a hostile work environment, discrimination, harassment, and/or retaliation in the workplace.

You can access the full list here. The individual listings link to news stories about the successful claims that led to their inclusion on the top 100 list.

Great, but also…

I’m delighted that eBossWatch is highlighting the work of plaintiffs’ employment lawyers who are getting successful results for their clients. In addition, while the list identifies attorneys who certainly are worthy of inclusion, we should take these points under consideration:

1. Many of the best settlements of employment lawsuits (from the worker’s perspective) are not made public. Therefore, attorneys who truly delivered for their clients without going to trial (thus sparing them what can be a highly stressful experience) may not be in a position to appear on this list.

2. Readers who are contemplating legal action against a current or former employer should not read into the award amounts detailed on eBossWatch any assumption that if they can just get the right lawyer, then a big verdict or settlement awaits them. In actuality, employment claims are hard to win, and many filed cases linger for years before they are finally resolved, and not necessarily with great results for the aggrieved worker.

3. I’m guessing that the differences between the “100 best” employment lawyers as listed by eBossWatch and next, say, 500, are minimal in terms of competency and effectiveness. There are a lot of excellent plaintiffs’ employment lawyers out there.

For help in finding an employment lawyer

Here are resources worth checking out:

Nationally

Those seeking to retain an employment lawyer will find online referral assistance from website of the National Employment Lawyers Association, a bar association of attorneys who specialize in representing workers.

Massachusetts

Massachusetts residents also may “window shop” the attorney directory of NELA’s Massachusetts chapter.

Will workplace bullying become increasingly covert and indirect?

Decades ago, Title VII of the Civil Rights Act of 1964 declared that discrimination on the basis of race, color, religion, sex, or national origin is an unlawful employment practice. Before the enactment of Title VII, discriminatory employment practices were largely open and transparent. Because it was legal to exclude or classify workers and job applicants based on these categories, there was no need to hide it. Anti-discrimination law changed all that.

Overt workplace discrimination has declined considerably in the U.S. Both anti-discrimination laws and changing social attitudes have had a positive impact in that regard. However, many of those engaging in workplace discrimination have become more savvy about it, using less obvious practices that are harder to challenge, while refraining from uttering statements of bias that once were more common. In such circumstances, getting an employer to take a discrimination complaint seriously can be a more daunting task. The same goes for proving a discrimination claim filed with an agency or court of law.

What does this mean for workplace bullying?

Taking these trends into account, I’d like to offer a reluctant hypothesis: As workplace bullying continues to enter the mainstream of American employee relations, and as advocates for the workplace anti-bullying movement enjoy greater successes in public education, employer awareness, and law reform, bullying behaviors at work will become increasingly covert and indirect.

In other words, those who are inclined to engage in bullying will be aware of more enlightened public attitudes against such mistreatment. In time, they also will face greater liability exposure as the legal system responds more effectively. For some, these developments may discourage them from bullying. Others, however, will become more devious and more ingenious about how they mistreat their co-workers. These covert and indirect forms of bullying are harder to unpack than more transparent forms of work abuse.

The good news is that all of the positive developments concerning workplace bullying eventually should help to decrease the prevalence of bullying behaviors. The bad news is that those who bully others will be more likely to do so in ways that are difficult to sort out and address.

Labor Day role model: SEIU/NAGE tackles workplace bullying in Massachusetts

Labor unions are on the firing lines these days, especially those representing public sector workers. In this hostile climate toward organized labor, it’s essential for unions to remind us of their ability to fight for the interests of all working people — and for the rest of us to recognize those efforts.

Fortunately we have some prime examples of that in Massachusetts. For example, during the past five years, it has been my pleasure to witness a major Massachusetts public employee union — the Service Employees International Union/National Association of Government Employees (SEIU/NAGE) — take a lead role in the fight against workplace bullying.

November 2007 presentation

It’s worth repeating a story I shared here some three years ago, describing how SEIU/NAGE got involved with this cause.

In November 2007 I gave a presentation about workplace bullying to an assembly of several hundred SEIU/NAGE union activists. About a third of the way into my talk, I could tell that it was striking a chord with the union members. Heads were nodding in agreement, people were whispering to one another in animated ways, and some even smiled back in appreciation despite the subject matter.

I closed my remarks by urging them, among other things, to inject concerns about workplace bullying and abusive supervision into their contract negotiations. I hoped that they would take some of these ideas and run with them.

Yes, they did!

A few months later, Greg Sorozan, president of SEIU/NAGE Local 282 and a national vice president of NAGE, informed me that as a follow up to that talk, all of the union locals affiliated with SEIU and NAGE were bargaining over concerns about workplace bullying in their contract negotiations.  In January 2009, Greg reported that the Commonwealth of Massachusetts had agreed to include a “mutual respect” provision in their new contract that covered, among other things, bullying and abusive supervision.  As a result, some 21,000 state workers became covered by a collective bargaining agreement that includes a workplace bullying provision.

This “mutual respect” provision was one of the first major American collective bargaining agreements to include express protections against bullying at work.  It isn’t perfect:  An alleged violation of the provision may be grieved, but is not arbitrable.  This is a real limitation; it means that unresolved bullying charges will not proceed to arbitration, thus precluding a worker from obtaining an enforceable order to stop the behavior or to make an award.  Nevertheless, it is a huge step forward to have a collective bargaining agreement that covers bullying and allows grievances to be filed when the behavior arises.

And more!

Greg Sorozan also joined the working group to lobby for introduction and passage of the Healthy Workplace Bill.  He asked the union’s lobbyists to seek a sponsor in the Massachusetts legislature, and consequently the assistant majority leader of the state senate, Joan Menard (now retired), agreed to be the lead sponsor for the 2009-10 legislative session.

SEIU/NAGE has continued to lend considerable support behind the Healthy Workplace Bill. They helped us to line up some one dozen sponsors in the House and Senate for the 2012-13 session, including new lead sponsors in Rep. Ellen Story and Sen. Katherine Clark. The bill made several important advances within the tortured legislative process, and we’re now gearing up for the 2013-14 session with a lot of momentum pushing us forward.

Today, Greg serves as a co-coordinator of the HWB campaign in Massachusetts. We’ve also received ongoing support and counsel from SEIU/NAGE lobbyists Jim Redmond and Ray McGrath and communications specialist Lisa Smith. SEIU/NAGE members have been contacting their legislators and asking them to support the HWB.

MTA and MNA too!

SEIU/NAGE isn’t the only Bay State union to play a leadership role in building awareness of workplace bullying and calling for change. For example:

The Massachusetts Teachers Association has endorsed the Healthy Workplace Bill and brought people to testify on behalf of the legislation at hearing on the bill last year before the Joint Committee on Labor and Workforce Development.

The Massachusetts Nurses Association has hosted workshops and educational programs on workplace bullying and violence in healthcare workplaces.

The Role of Organized Labor to Combat Workplace Bullying

Together, these unions exemplify how organized labor can take a stand against workplace bullying. Unions that would like to join them can participate in at least four ways:

• Negotiate CBA Provisions – Unions should bargain for collective bargaining agreement provisions that protect their members against abusive supervision. (I can provide suggested contract language upon request. Please contact me at dyamada@suffolk.edu).

• Use Existing Contract Provisions – Even in the absence of specific protections against abusive supervision, the general substantive and procedural rights in an agreement may provide legal protections for a bullied union member.

• Educate Members and Resolve Disputes – Shop stewards can be trained to help to identify and resolve bullying situations, including those between union members.  Unions can encourage a culture of safety and respect among their members.

• Support Legal Reform – Unions can back the enactment of anti-bullying legislation such as the Healthy Workplace Bill.

Role models

Unions, like any form of organization, are not perfect. But their presence is a needed source of countervailing power and worker voice. And good unions, like the ones mentioned here, remind us that organized labor stands up not only for their own members, but also for all workers. I’d say that’s a pretty good point to remember on this Labor Day.

Corporate interests attack Healthy Workplace Bill in Massachusetts

Powerful, well-funded corporate and business interests are contacting Massachusetts state legislators and generating letter-writing campaigns to voice their opposition to the anti-bullying Healthy Workplace Bill (filed as House No. 2310 in the 2011-12 session).

In some ways, this is a good sign. It means that the HWB is being taken seriously.

Nevertheless, as author of the underlying language of the HWB, I’ve examined their claims and found them wanting. Here are my responses:

1. Claim: Existing harassment law is sufficient to protect bullying targets.

Reality: This is untrue.  Harassment law protects only those individuals who can prove that the mistreatment is due to their protected class membership, such as sex, race, or age.

The HWB protects all employees from abusive mistreatment on an equal opportunity basis, filling a huge gap in the law.

2. Claim: Existing tort (personal injury) law is sufficient to protect bullying targets.

Reality: This is untrue.  In Massachusetts, the Supreme Judicial Court has held that under exclusivity provision of the state’s workers’ compensation law, workers may not sue their employers for intentional infliction of emotional distress (IIED) and many other tort actions.  Even if this bar was removed, my extensive analysis of IIED claims brought against employers in other states shows that most targets of standard-brand, severe workplace bullying are unable to recover (or even to get to trial).

3. Claim: The Healthy Workplace Bill will open floodgates of litigation.

Reality: Of course there will be lawsuits under the HWB; it would not be doing its job if workers did not bring claims under it.  However, after an initial surge of litigation, the number of claims will moderate considerably once lawyers, their clients, and the courts recognize the high threshold for recovery (including intent to cause distress and resulting physical and/or psychological harm).

The HWB has three primary goals: (1) preventing bullying; (2) encouraging prompt and fair employer responses to reports of bullying; and (3) providing compensation to targets of severe, health-harming bullying. Good employers can minimize their liability and, in the process, have a healthier, more loyal, more productive workforce as a result.

4. Claim: The Healthy Workplace Bill will hurt small businesses.

Reality: Small businesses also suffer devastating productivity and morale losses when bullying occurs. In fact, with fewer people on the payroll, small businesses experiencing workplace bullying have less flexibility than larger ones to move around employees and make personnel changes. The HWB will incentivize preventive efforts for these businesses.

5. Claim: We should give employers a chance to address bullying voluntarily first.

Reality: Workplace bullying is not new to the American workplace, even if the label is relatively recent.  Employers have had decades to address the psychological abuse of employees, and all too often they ignore the complaints or side with the aggressors.  Now it is clear that the law should enter the picture to encourage them to stop this form of interpersonal abuse.

6. Claim: The Healthy Workplace Bill takes away the ability of employers to manage their workforce.

Reality: This is untrue.  The HWB enters the picture only when the bullying behaviors have become severe and harmful. It provides legal incentives for employers to sharply minimize their liability exposure by acting preventively and responsively toward bullying, and it reserves the right of employers to conduct evaluations and provide feedback and direction to their employees.

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For more information:

Blog post: The Healthy Workplace Bill: What’s it all about?

For the new blog of the Massachusetts Healthy Workplace Advocates, go here.

A movement emerges: Will unpaid internships disappear?

This summer, countless numbers of students will work in unpaid internships, in many instances for large corporations that could easily afford to pay them. Not only is this widespread practice often in apparent violation of state and federal minimum wage laws, but also it creates barriers to those who want to break into an occupation but who cannot afford to work for free.

Now there’s an emerging movement against unpaid internships (especially in the private sector), and here’s evidence of its coming out party:

Lawsuits

Well-publicized legal claims for back pay by unpaid interns have played a significant role in bringing this common practice to public light.

It started last fall with a lawsuit filed by two unpaid interns, Alex Footman and Eric Glatt, who worked on the production of the movie “Black Swan,” alleging that Fox Searchlight Pictures violated minimum wage and overtime rules.

Earlier this year, Xuedan Wang, a former unpaid intern for Harper’s Bazaar, filed a claim against the magazine’s publisher, the Hearst Corporation.

The lawsuits already are having an impact on employer practices. As Paul Davidson reports for USA Today (link here):

As summer intern season draws near, many employers are doing away with unpaid internships or converting them to paid programs amid lawsuits that claim interns should have been compensated for their work, labor lawyers say.

“They’re saying, ‘We’re not going to run the risk,’ ” says Al Robinson, a Washington, D.C., lawyer and former acting administrator of the Labor Department’s wage and hour unit.

Media attention

The lawsuits and other actions are not going unnoticed by the media. This Sunday’s front page article in the New York Times by labor reporter Steven Greenhouse is prime evidence:

Confronting the worst job market in decades, many college graduates who expected to land paid jobs are turning to unpaid internships to try to get a foot in an employer’s door.

. . . Although many internships provide valuable experience, some unpaid interns complain that they do menial work and learn little, raising questions about whether these positions violate federal rules governing such programs.

Last week, Time magazine weighed in with a piece, “The Beginning of the End of the Unpaid Internship.” Josh Sanburn posits:

In the workplace, there seem to be two long-established but contradictory rules: Everyone gets paid to work – unless there’s mindless drivel to do, of course, and then you get college kids to do it for free.

In March New York magazine proclaimed the emergence of an “intern-rights movement” and reported on its own survey of interns:

An intern-rights movement is afoot, sparking class-action suits against Hearst and Fox Searchlight; rumors of new rules at Condé Nast; a Times “Ethicist” column (headline: “The Internship Rip-Off”); and a book (Intern Nation) decrying many of the unpaid jobs as boondoggles.

Occupy Wall Street

The Arts & Labor working group of Occupy Wall Street has called upon six online job boards to stop listing unpaid internships (media advisory here):

Six major online job boards . . . were served letters calling for an end to the publishing of classified listings for unpaid internships at for-profit businesses. . . . Collectively the six job boards channel thousands of unpaid workers to for-profit businesses in a variety of creative industries including the visual arts, publishing, theater, film, television and electronic media, without regard for the ethics or legality of such arrangements, thereby undermining the overall health and sustainability of the labor market within those industries.

They’ve also produced the informational flyer featured at the top of this blog post, which can be downloaded here.

And on television…

The HBO series “Girls” features a major subplot about the challenges of unpaid internships. When a “hip” cable series picks up a story line like this, it’s additional evidence that the issue is entering the mainstream.

Ross Perlin’s Intern Nation

Ross Perlin’s Intern Nation (2011) is now available in paperback. It’s an essential read for anyone who wants to understand the social, economic, and legal aspects of this topic.

Private vs. public & non-profit

I believe it’s wrong — ethically and often legally — for profit-making enterprises with large payrolls and well-compensated executives, especially medium and large sized corporations, to hire unpaid interns. (Remember, we’re not talking about interns getting rich here. We’re talking about paying the minimum wage.)

However, public and non-profit employers are not in existence to make profits, and there are compelling reasons to encourage students and others to be exposed and contribute to service-oriented institutions. Work-study and college-funded grant programs can help to provide income for otherwise unpaid internships in these sectors.

Very promising signs

All this activity is encouraging. Students and others are challenging employers to do the right thing by paying interns who contribute their talent and energy to the work of an organization. In such instances, it’s entirely fair to expect at least the minimum wage in return.

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Personal note

Faithful readers of this blog know that I’m not a neutral party on this topic, as I have been writing and blogging about unpaid internships for many years.

Last December I met with Ross Perlin, Eric Glatt, and journalist Tiffany Ap to discuss the practice of unpaid internships and strategies for bringing this issue to public attention. In addition, I’m pleased that my law review article, “The Employment Law Rights of Student Interns,” Connecticut Law Review (free download here) has been cited approvingly in Intern Nation and by Occupy Wall Street as an informational resource.

3/9/12 addendum

Steven Greenhouse added a nice followup piece on the employment relations and social impact implications of unpaid internships, posted to the Times‘s Economix blog here. I appreciate his quoting from the comment I left to his original piece:

Professor David Yamada of the Suffolk University Law School in Boston wrote in to make a point that I had made in a 2010 article on unpaid internships, but did not discuss in my article on Sunday. Missing from the article, Professor Yamada wrote, “is the fact that unpaid internships have huge social class impacts on folks who cannot afford to work for free, reinforcing economic barriers to certain professions long associated with the well-to-do.”

“Radical middle” views of law, psychology, and the legal profession

Mark Satin is a noted political writer and lawyer, a one-time 60s activist whose worldview now resides in what he calls the “radical middle.” Mark’s Radical Middle newsletter (1999-2009) and book (2004) (pictured above) have been informed by perspectives and positions such as such as these:

• One-world citizenship.  A commitment to overarching human values and to a cosmopolitan identity as world citizens.
  
• Business and law.  A recognition that what’s going on in certain boardrooms and law offices today may be more important — and more promising — than what’s going on in the traditional political arena.
  
• Consciousness.  A recognition that values, virtues, attitudes, religion, and culture may have more to do with individual happiness — and social progress — than economic growth.
  
• One-world compassion.  A refusal to accept that the well-being of people in Rumania or Nigeria or Malaysia is any less important than the well-being of people in Arizona.
  
• Ambition, achievement and service.  In the Sixties it was a badge of honor to drop out.  The strategy backfired.  Today most socially committed young people are rushing to become doctors, lawyers, businesspeople, social workers, academics, and that is — or can be — a good thing.

Relevant articles

Here are six of Mark’s extended newsletter commentaries on topics especially relevant to this blog:

• Kleiner’s Good Corporate Laws Meet Yamada’s Good Corporate Laws (2009) — Juxtaposing the work of business journalist Art Kleiner with my writings on worker dignity.
• Healing first! Time for the U.S. justice system to get less mechanistic and more compassionate (2008) — Writing in praise of therapeutic jurisprudence, the school of legal thought that calls upon us to frame the law and our legal systems through a therapeutic lens — a favorite topic of this blog too.
• Mediator-leaders: The leadership we need now? (2006) — Highlighting the work of mediator Mark Gerzon and suggesting that a new, more communal brand of leadership is needed.
• “Rankism” (the abuse of rank) — last big barrier to a just and decent society? (2006) — Drawing upon former Oberlin College president Robert Fuller’s (another favorite of this blog) call for a “dignitarian” society.
• Law reform as if people mattered (2004) — Examining ways to make our legal system more “accountable, affordable, humane.”
• Confronting the social causes of psychological depression: Too taboo? (2002) — Examining, among other things in this wide-ranging piece, the how workplace bullying can trigger depression, citing some of my early work and that of Gary & Ruth Namie.

Personal side

Some 20 years ago, when I was a young instructor in the first-year Lawyering Skills program at New York University, Mark’s name popped up on my class list. I had been a subscriber to his previous newsletter, New Options, and soon would learn that he closed it down and decided to pursue a law degree.

We became friends and stayed in touch after I moved to Boston to accept a tenure-track appointment at Suffolk University Law School. Eventually I would join the board of the non-profit organization he established to host the Radical Middle newsletter. After a few years, we had a friendly parting of the ways when I felt that my political views were further left to the middle ground he was defining.

Fast forward to today: Although I identify myself as a liberal, Mark’s ideas have had a strong impact on me, to the point where I’m as comfortable in his defined radical middle as I am in the heart of mainstream liberalism. I am in agreement with him more often than not, and in any event I respect the voice he brings to our political and social discourse. Mark is working on a memoir these days, and I look forward to its publication.