Nurse can proceed with age discrimination claim against employer seeking “rising young stars,” federal court holds

Despite signs of increased bias against older workers, age discrimination claims are difficult to win. That’s why a federal district court decision in Tennessee allowing a demoted nurse to proceed with her age claim is welcomed news. According to the BNA Daily Labor Report (no link — subscription required):

A 49-year-old nurse who provided direct evidence that her employer was seeking “young rising stars” to replace older workers is entitled to proceed to trial on her federal and state law claims that she was demoted from a shift leader position due to her age in violation of the Age Discrimination in Employment Act and state law, a federal district court in Tennessee held May 8 . . ..

The case is Woody v. Covenant Health, decided by the federal district court for the Eastern District of Tennessee, docket no. 11-cv-62, dated May 8, 2013. The defendant had moved for summary judgment, a procedural tool that, if granted, would have resulted in the case being dismissed even before going to trial. The court ruled the other way, finding that Nurse Woody is entitled to her day in court.

According to the Daily Labor Report summary of the case, not only did a supervisor express a “stated preference for younger shift supervisors,” but also the supervisor produced a job announcement expressly seeking younger applicants.

Age bias suits face uphill battles

The Age Discrimination in Employment Act and its state law counterparts prohibit employment discrimination against job applicants and workers age 40 or over.

The excellent Next Avenue site recently ran a piece by Penelope Lemov titled “What It Takes to Win an Age Discrimination Suit,” but in reality it’s actually a sobering assessment of the difficulty of prevailing in such a claim.

Lemov notes that age bias claims have been on the rise since the economic meltdown in 2008:

Age-related charges make up a growing number of complaints filed at the Equal Employment Opportunity Commission, the federal agency that handles such matters. Between 1997 and 2007, there were generally between 16,000 and 19,000 annual filings. But since 2008, the number of complaints has soared to 23,000 to 25,000 a year. Federal law says it’s illegal for an employer with 20 or more employees to discriminate against employees 40 or older based on their age.

Nevertheless, she aptly points out that “it has gotten harder and harder to win an age discrimination suit,” thanks to a combination of narrow interpretations of the law by federal courts and employers who are good at covering their tracks.

Obviously, in Woody v. Covenant Health, the employer was not very good at hiding its bias. Hopefully it will lead to a good result for this nurse.

Working Notes: A busy Friday discussing workers and workplaces

 

L to R: DY, Rep. Kay Khan, Rep. Ellen Story

Yesterday served as a welcomed reminder that healthy dialogue can play an important role toward advancing the interests of workers and workplaces. I was fortunate to participate in two excellent events, and I’d like to share a bit about each.

MARN Legislative Forum

I spent the morning at the Massachusetts Association of Registered Nurses 2013 Health Policy Legislative Forum, held in the Great Hall of the State House. There I joined Representatives Ellen Story (a lead sponsor of the HWB, House Bill No. 1766) and Kay Khan (a HWB co-sponsor and psychiatric nurse) for presentations and Q&A about workplace bullying in healthcare and the importance of supporting anti-bullying legislation. MARN is one of the organizational endorsers of the HWB.

The discussion was both practical and policy oriented. We talked about the challenges of dealing with bullying behaviors in the healthcare workplace, as well as the role that associations like MARN can play in advancing the Healthy Workplace Bill.

It’s an honor to present with two elected officials who truly “get it” when it comes to how public policy can promote human dignity in the workplace. The three of us were pleased to be there, as the photo above (grabbed shamelessly from Rep. Story’s Facebook page) indicates!

Northeastern University Conference, “Employed or Just Working?”

For the afternoon, I hopped on the subway to a conference sponsored by the Northeastern University Law Journal, Employed or Just Working? Rethinking Employment Relationships in the Global Economy, which focused on the changing definitions of employee status and their impact on workers and organizations.

I gave a talk on the “intern economy” and detailed the emerging legal and social movement against the widespread practice of unpaid interns, explaining how this practice excludes individuals who cannot afford to work for free and likely violates minimum wage laws. I will be submitting an article on this topic to the journal later this year, updating my 2002 Connecticut Law Review article on the legal rights of interns. (You may download the 2002 piece without charge, here.)

Several panels focused on the common practice of employers misclassifying workers as independent contractors that, in turn, allow them to avoid paying wages, overtime, and benefits. Some of these practices are egregious, as lawyers who litigate these claims explained to us. We also heard from attorneys representing employers, and they provided an important perspective on the challenges of engaging in good-faith compliance efforts with laws that define “employee” in significantly different ways.

A compelling panel featured advocates and scholars who are examining the difficulties confronting domestic workers such as home health care attendants who are trying to obtain decent wages and benefits. These issues aren’t going away as our population ages and the demand for affordable in-home care increases.

Thanks and kudos

Thank you to both MARN and Northeastern for these opportunities to share information and ideas and to engage in discussions with people who care about the quality of our work lives, and congratulations for putting on very successful events involving multiple speakers. I hope that others who attended and participated benefited as much as I did.

Working Notes: Upcoming speaking appearances, Spring 2013

I’ll be heading out of the office on several occasions during the coming months for speaking engagements, mostly on workplace bullying and related issues of labor relations. For programs accepting registrations, I’ve provided links.

Massachusetts Association of Registered Nurses, State House legislative forum, Boston, MA (March 22, 2013) — I’ll be discussing the Healthy Workplace Bill, the anti-bullying legislation I’ve authored, filed in the current session of the MA legislature, House Bill No. 1766, with Representatives Ellen Story (HWB lead sponsor) and Kay Khan (HWB co-sponsor). MARN is among the organizational endorsers of the HWB.

Northeastern University School of Law, Symposium on Worker Misclassification, Boston, MA (March 22, 2013) — Sponsored by the Northeastern Law Journal, this is shaping into a very good program on the widespread problem of misclassifying workers as independent contractors and other non-employees to avoid paying wages and benefits. I’ll be speaking on the legal status of unpaid interns.

City University of New York Law School, Faculty Forum, Queens, NY (April 10, 2013) – CUNY Law is dedicated to educating future public interest lawyers. I’ll be speaking on “Law Professors as Intellectual Activists.”

New York State Psychological Association, Workshop on bullying & violence at work, New York, NY (April 28, 2013) — This workshop is sponsored by the NYSPA’s Division of Organizational, Consulting, and Work Psychology and will be held at John Jay College of Criminal Justice. I’ll join Dr. Gary Namie of the Workplace Bullying Institute to talk about various aspects of workplace bullying.

Work, Stress and Health Conference 2013, Los Angeles, CA (May 16-19, 2013)  – Co-sponsored by the American Psychological Association, National Institute for Occupational Safety & Health, and Society for Occupational Health Psychology, this multidisciplinary, biennial conference is one of my favorites. I’ll be on panels discussing low-cost approaches to helping targets of workplace bullying (May 18) and the use of social media to promote healthy workplaces (May 18).

Professional schools as incubators for workplace bullying

It has long been my belief that the seeds of workplace bullying are planted in professional schools that prepare people to enter occupations such as law and medicine.

You start with ambitious young people who (1) are used to being heralded as academic stars; (2) do not have a lot of life experience; and (3) tend to be driven, Type A achievers. You then put them in high-pressured educational environments that emphasize technical knowledge and skills and a lot of “left-brain” logical thinking. These degree programs don’t place a lot of emphasis on interpersonal skills and the development of emotional intelligence.

You then unleash them unto the world of work. Uh oh.

Med school

Dr. Pauline Chen, in a New York Times blog piece that already has attracted hundreds of comments (link here), writes about a resident doctor who terrified the medical students with his explosive behavior:

Powerfully built and with the face of a boxer, he cast a bone-chilling shadow wherever he went in the hospital.

At least that is what my medical school classmates and I thought whenever we passed by a certain resident, or doctor-in-training, just a few years older than we were.

With the wisdom of hindsight, I now see that the young man was a brilliant and promising young doctor who took his patients’ conditions to heart but who also possessed a temper so explosive that medical students dreaded working with him. He had called various classmates “stupid” and “useless” and could erupt with little warning in the middle of hospital halls. Like frightened little mice, we endured the treatment as an inevitable part of medical training, fearful that doing otherwise could result in a career-destroying evaluation or grade.

Chen goes on to discuss studies documenting high levels of abuse directed at medical students, as well as efforts that have been undertaken by some medical schools to change their educational environments — with often disappointing results.

Law school

Lest I be accused of tossing bricks from my glass house, let me quickly acknowledge that law schools are no better at educating their students to be socially intelligent practitioners. Even in the face of pressures being exerted by accreditors and leaders of the Bar to do a better job of preparing students for actual practice, law schools overwhelmingly emphasize the study of judicial decisions, statutes, and regulations.

To the extent that lawyering skills become a part of the law school curriculum through simulation courses, clinical programs, and externships, much of the focus remains on advocacy as the dominant interpersonal skill. Client counseling and personal communications are considered “soft” skills that do not get a lot of attention.

Consequently, a lot of lawyers who possess the intelligence to earn a law degree and pass a bar exam come up short on interpersonal skills. It shouldn’t surprise anyone that the legal profession is home to a lot of workplace bullying. Too many lawyers are wired to act aggressively in any interpersonal situation, including dealing with colleagues and clients. Some cross the line and are downright abusive.

Start early

The cues for what constitutes appropriate behavior often are communicated initially in these professional schools. Doctors and lawyers in training may have no idea how to conduct themselves as practitioners, other than being influenced by a lot of unfortunate “role models” on television. If we want to prevent workplace bullying, the training schools for these professions are the first and perhaps best places to start.

***

Hat tip to Dr. Loraleigh Keashly (Wayne State U.) for the New York Times article.

Why we need psychologically healthy workplaces in the healthcare sector

It’s Saturday night and you’ve been in a car accident. Someone who had too much to drink swerved into your lane and caused a bad collision. You are in severe pain and fear that you’ve suffered serious injuries.

The paramedics arrive at the scene and whisk you to the nearest emergency room. Once there, you find yourself being cared for by a doctor and nurse who absorb information about your condition from the paramedics. As they check your vital signs, you pass out….

30 minutes earlier

For the sake of your own already sky-high stress levels, thank goodness you didn’t know that 30 minutes before your arrival, this doctor had been yelling mercilessly at the young nurse for a small mistake, right in front of her colleagues. The nurse was so rattled and embarrassed that she didn’t handle skillfully an emotionally out-of-control patient, who became angry at her and spat on her uniform just minutes before the paramedics wheeled you in.

It’s better you don’t know that your life is in the hands of a doctor with a short temper and a novice nurse who now is very skittish around him.

Violence, bullying, and incivility in healthcare

Folks who work in emergency rooms and psychiatric wards will tell you that physical violence at the hands of patients (and sometimes their family members or friends) can be a significant risk of the job. Healthcare workers can be hit, pushed, kicked, spat upon, and otherwise assaulted (physically and verbally) by the very people they’re trying to help.

In addition, bullying and incivility are common forms of mistreatment in the healthcare workplace. Nurses and nurses’ aides seem to get it the worst, but others are targets as well. The problem is so serious that in 2008, the Joint Commission, an independent, non-profit organization that accredits health care organizations and programs, issued a standard on intimidating and disruptive behaviors at work, citing concerns about patient care. (See blog series about bullying in healthcare, starting here.)

An imperfect storm

Earlier this week, I blogged about the National Conference for Workplace Violence Prevention & Management in Healthcare Settings, hosted last weekend by the University of Cincinnati College of Nursing. We heard a lot about physical violence committed by patients and about bullying & incivility dished out by co-workers.

What happens, however, when the two mix? Let’s say an emergency room treats potentially violent patients on a regular basis and also happens to be a place where employees treat each other so poorly that everyone is on edge? How do the concurrent risks of violence and bullying interact, to the point where workers are routinely stressed out and thus more prone to mistakes?

Let’s zero in on healthcare

This scenario underscores my belief that healthcare is a singularly important sector for studying and responding to disruptive behaviors of all types. The stakes could not be higher: They relate to workers and patients alike. A psychologically healthy healthcare workplace provides everyone with greater peace of mind, ranging from the workers to those of us who seek their help.

U of Cincinnati conference examines workplace violence, bullying, and incivility in healthcare

I just returned from the superb National Conference for Workplace Violence Prevention & Management in Healthcare Settings, hosted by the University of Cincinnati College of Nursing. This was one of those rare conferences where every speech, panel discussion, and poster session offered something informative and thought-provoking.

For the conference website, go here. Podcasts of conference programs will be posted during the summer.

Keynote address

An invitation to be one of the keynote speakers led to my being a part of the conference. Titled “Responding to Workplace Bullying in Healthcare: Ten Propositions,” here were my main points:

1.            The healthcare sector is an ideal locus for developing best practices to address workplace bullying, mobbing, and incivility.

2.            Somehow, someway, the case for taking workplace bullying seriously has to be made to the most powerful stakeholders, especially management.

3.            Medical schools need to inculcate students in the importance of developing and exercising social intelligence in the healthcare workplace.

4.            Nursing schools need to teach students about bullying behaviors and the need for personal resilience.

5.            Nurses’ unions are uniquely situated to raise concerns about workplace bullying.

6.            Physicians and nurses should not be promoted to management positions without training in management skills.

7.            Individuals who treat co-workers abusively should be counseled, disciplined, and – if necessary – dismissed.

8.            The enactment of legal protections against severe, targeted bullying at work could enhance, not hinder, the management and HR functions of the healthcare workplace.

9.            Internal codes of conduct in healthcare institutions should (1) promote responsible speech, (2) nurture civility, and (3) prohibit abuse.

10.          Research must inform practice, which — in turn — must inform research.

Many thanks

I won’t even attempt to provide a sampling of the good stuff we heard, though I will be discussing various presentations and poster displays in future blog posts. For now, I simply want to extend my gratitude to members of the conference committee, especially professors Gordon Lee Gillespie and Donna Gates and coordinator Katy Roberto Marston, for their extraordinary efforts and hospitality:

Gordon Lee Gillespie, PhD, RN, UC College of Nursing; principal investigator
Donna M. Gates, EdD, RN, FAAN, UC College of Nursing; co-investigator
Bonnie Fisher, PhD, UC College of Education, Criminal Justice, and Human Services
William K. Fant, PharmD, University of Cincinnati College of Pharmacy
Barbara Forney, Program Manager, University of Cincinnati College of Continuing Medical Education
Michelle Caruso, PharmD, BCPS, Cincinnati Children’s Hospital Medical Center
Terry Kowalenko, MD, FACEP, University of Michigan Emergency Medicine
Alison C. McLeish, PhD; UC Department of Psychology
Dianne Ditmer, PhD, RN, FACFE, Kettering Medical Network
Christine Luca, MSN, RN, University of Cincinnati College of Nursing
Katy Roberto Marston, Conference Coordinator, University of Cincinnati
Carolyn Smith, PhD(c), RN, Cincinnati Children’s Hospital Medical Center
Ahlam Al-Natour, PhD(c), RN, University of Cincinnati College of Nursing
Peggy Berry, MSN, RN, University of Cincinnati College of Nursing

Raising workers’ health insurance payments for bad lifestyle habits

One of the unfortunate by-products of our messed up health care system is how some employers are raising employee health insurance contributions for those who engage in lifestyles deemed unhealthy.

They may smoke. They may eat too much or the wrong foods. They may not participate in preventive care. As Reed Abelson reported for the New York Times last November:

More and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.

This isn’t a screed against personal responsibility. And I understand why employers are assessing options to lasso out-of-control health insurance costs.

But what I see here is a scary slippery slope, one that leads to certain individuals bearing a heavier burden of their health care costs based on the supposed riskiness of everyday conduct.

It may sound good until you apply it evenhandedly: The person who has no problem imposing higher premiums on smokers may forget that the steaks and burgers he enjoys provide reason for raising his premiums, too. And what if vegetarian who doesn’t mind sticking it the carnivore is not getting recommended amounts of protein in her diet? Does this mean that she should pony up higher payments as well?

In addition, if we’re going to play this game, what responsibility do companies that market some of these products bear for promoting these habits — the cigarette makers, fast-food restaurants, and beer companies? They know darn well that their products will have some negative health effects.

And what about bad employers that create stressful working conditions that, in turn, cause some workers to engage in less-than-healthy habits? If we’re preaching responsibility here, shouldn’t they pay a higher share of our health care costs?

Health insurance coverage helps to protect us against the costs of being human, including our own foibles and weaknesses. America remains one of the world’s wealthiest nations, and we have the capacity to provide affordable, quality health care for all. This type of business practice, however, is takes us in the opposite, more punitive, direction.

Cincinnati conference to examine violence and bullying in healthcare workplaces, May 11-13

See you on May 11-13?

The University of Cincinnati is hosting the National Conference for Workplace Violence Prevention & Management in Healthcare Settings, scheduled for May 11-13, 2012, in Cincinnati.

Here’s how the organizers describe the conference:

This conference will cover the full spectrum of the workplace violence typology as it directly relates to incivility, bullying, verbal and physical aggression, threatening words or actions, sexual harassment, and physical assaults that occur in healthcare settings (e.g., hospitals, long term care, emergency departments, home health, pharmacies, clinics, and private practice offices).

This conference will provide an opportunity for national and world leadership to prevent work-related injuries by disseminating the current scientific research on healthcare workplace violence, analyzing what changes have been made to alleviate healthcare workplace violence and providing recommendations for minimizing workplace violence for healthcare providers and their patients.

See you there?

I’ve accepted an invitation to give a keynote address at the conference on Friday, May 11, during which I’ll be discussing legal issues relating to workplace bullying and violence.

In addition, the organizers are accepting abstracts for papers, poster sessions, and symposia. The due date is February 17. Go here for the link!

Chief organizers include Gordon Lee Gillespie, Ph.D., R.N. (principal investigator) and Donna M. Gates, Ed.D., R.N.  (co-investigator). Go here to learn about the rest of the conference committee.

Very important focus

I’m delighted that a full-blown, multidisciplinary conference is focusing on this topic. The healthcare workplace is important to everyone, and working conditions can be stressful and challenging. Physical violence, bullying, and other forms of aggression are common occurrences.

Over the years I’ve written a lot about bullying in healthcare. I’ve collected previous posts here:

4-part series on bullying in healthcare

Workplace bullying in healthcare I: The Joint Commission standards

Workplace bullying in healthcare II: Vanderbilt U program for doctors

Workplace bullying in healthcare III: A sampling of legal cases

Workplace bullying in healthcare IV: Nurses bullied and responding

Other related posts

Cheryl Dellasega’s When Nurses Hurt Nurses

Nurse writes about bullying by doctors, other doctors respond

Healthcare bloggers on workplace bullying

Nursing as a Calling: Aspirations and Realities

Alaska nurse blogs about workplace bullying experience

A Flu Tale of Intellectual Bullying?

Our low “spirit level”: America ranks 27th out of 31 nations in global social justice study

Based on measures of social justice, America ranks 27th among 31 member nations of the Organization for Economic Co-Operation and Development (OECD), according to “Social Justice in the OECD — How Do the Member States Compare?,” a report released last week by Bertelsmann Stiftung, a private German foundation.

Here are some of the low points for the U.S. in the report:

• 28th in income inequality
• 29th in poverty prevention
• 28th in child poverty
• 22nd in unemployment and long-term unemployment
• 20th in access to education
• 23rd in health care
• 25th in debt levels

In no category does the U.S. place in the higher ranks.

Overall, the four nations ranked immediately above the U.S. are Portugal, Slovakia, South Korea, and Spain. Only Greece, Chile, Mexico, and Turkey rank below the U.S.

“We should be ashamed”

New York Times columnist Charles M. Blow references the study and writes:

We have not taken care of the least among us. We have allowed a revolting level of income inequality to develop. We have watched as millions of our fellow countrymen have fallen into poverty. And we have done a poor job of educating our children and now threaten to leave them a country that is a shell of its former self. We should be ashamed.

The Times also prepared an excellent graphic that highlights selected measures in the report. The full report is only 50+ pages, with lots of easy-to-read charts and summaries.

America’s ”spirit level”

In The Spirit Level: Why Greater Equality Makes Societies Stronger (rev. ed. 2010), British epidemiologists Richard Wilkinson and Kate Pickett examined comparative economic and social data and found that social and health problems worsen as inequality grows.

In fact, overall wealth is less predictive than distribution of wealth in forecasting the well-being of a populace. In terms of public health, they found that while the poor are the biggest beneficiaries of greater equality, the wealthy make gains as well. Here’s a short YouTube video of Wilkinson and Pickett explaining their book:

The U.S. fares poorly in The Spirit Level as well, mirroring the findings of the OECD study.

Conclusion

What else is there to say? America, we’ve got our work cut out for us.

The “pseudoscience” card as intellectual bullying

If you’re in the scientific biz and you really don’t like what someone else is doing or saying, one of the easiest cards to play is the”pseudoscience” card, especially if the object of your scorn challenges accepted orthodoxies. The tag can be devastatingly effective and stick for a long time.

Some people commit big chunks of their careers to taking down the work of others in this way. For example, Stephen Barrett is the founder of Quackwatch, a site devoted to the relentless criticism of alternative medicine and natural health care and their providers, as a 2008 piece in the Village Voice reports.

Not so easy

Of course, there are quacks, charlatans, and frauds out there who masquerade as having knowledge, evidence, and expertise they simply don’t possess. They should be called on it.

But on other occasions, playing the pseudoscience card is a form of intellectual (or is it anti-intellectual?) bullying. It’s a way of diminishing work that threatens or questions accepted theory and practice.

Michael Shermer, in a piece for the Scientific American titled “What is Pseudoscience?” (link here), recognizes that the lines between science and pseudoscience are not as easily drawn as one might think. But rather than simply railing against the difficulties of doing so, he sets out a fair minded way of making the distinction. Shermer asks:

…(D)oes the revolutionary new idea generate any interest on the part of working scientists for adoption in their research programs, produce any new lines of research, lead to any new discoveries, or influence any existing hypotheses, models, paradigms or world views? If not, chances are it is pseudoscience.

On the other hand:

If a community of scientists actively adopts a new idea and if that idea then spreads through the field and is incorporated into research that produces useful knowledge reflected in presentations, publications, and especially new lines of inquiry and research, chances are it is science.

Fear and intolerance

Two years ago, I saw just how strongly the scientific and public health establishment can react to challenges of conventional wisdom when two very reputable health journalists were skewered because they dared to report on research that questioned the efficacy of flu vaccines. Their article appeared in The Atlantic just as the country was facing the H1N1 flu virus.

The harshest criticisms of The Atlantic piece came from the mainstream health sector, but a lot of others with no apparent scientific or medical expertise jumped on board. For example, one prominent law professor, apparently beset by fear and rage, blogged that “many people will get sick and some may even die because these two are too stupid to be able to analyze and evaluate the relevance of evidence,” adding that the authors were “dangerously stupid” and “irresponsible hacks.”

Not too long ago, doctors appeared in ads and commercials touting low-tar menthol cigarettes. Over the years, those trying to lose a few pounds have been alternately urged to eat more meat or less meat, more pasta or less pasta. Soldiers without visible wounds who could not return to the front lines were once deemed “shellshocked.”

In other words, we don’t have to return to the Middle Ages to find plenty of examples where conventional scientific wisdom was simply wrong. We are not even close to reaching the outer frontiers of knowledge about ourselves and the world around us. That awareness hopefully brings with it a humility that gives us pause before we engage in facile putdowns of cutting-edge work.