Published: “Emerging American Legal Responses to Workplace Bullying”

The Temple Political & Civil Rights Law Review has just published my article, “Emerging American Legal Responses to Workplace Bullying,” that emerged from the February 2013 symposium on bullying across the lifespan at Temple University’s law school.

The piece provides a short update of legal and policy developments concerning workplace bullying and includes the current template version of the Healthy Workplace Bill. I had posted a draft last year; this is the final published version.

Although the complete collection of articles from the symposium is not yet available online, you can access Prof. Nancy Knauer’s (Temple U.) overview of the symposium issue here. And for my write-up of the Temple conference, go here.

Previous scholarly articles on workplace bullying and related topics

For readers who would like more in-depth explorations of the legal issues concerning workplace bullying and related topics in the U.S., here are links to, and brief summaries of, relevant journal articles I’ve written over the years. Each may be accessed without charge from my Social Science Research Network page. While these articles are published in academic journals, they nevertheless have attracted many readers who are not lawyers or law professors.

Workplace bullying and the law

The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment ProtectionGeorgetown Law Journal, 2000 — This is the first in-depth examination of the American legal and policy implications of workplace bullying. Considered a groundbreaking piece.

Crafting a Legislative Response to Workplace Bullying — Employee Rights and Employment Policy Journal, 2004 — This contains and explains the first version of the Healthy Workplace Bill, as well as brief discussions of early legislative and regulatory responses to workplace bullying in other nations.

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment — Comparative Labor Law & Policy Journal, 2010 — This piece is part of a collection of articles looking at enacted and proposed legal responses to workplace bullying on an international scale. It contains an updated version of the Healthy Workplace Bill.

Workplace bullying generally

Workplace Bullying and Ethical Leadership — Journal of Values-Based Leadership, 2008 — This article provides a general overview of workplace bullying and its implications for organizational leadership.

Employee dignity generally

Human Dignity and American Employment Law — University of Richmond Law Review, 2009 — I pulled in a lot of historical and theoretical sources in an attempt to construct a case for making human dignity the primary framework for evaluating and shaping U.S. employment law.

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the WorkplaceFlorida Coastal Law Review, 2010 — This article places employment law issues (including workplace bullying) in the context of therapeutic jurisprudence, the school of legal thought that examines the therapeutic and anti-therapeutic properties of our laws and legal systems.

Bullying lawyer suspended from practice for two years

Okay, so this may not exactly shock anyone, but I think it’s worthy of note: The Florida Supreme Court has suspended an attorney for two years in response to his repeatedly confrontational, disrespectful, and bullying conduct toward another lawyer in a litigation matter.

Deborah Cassens Weiss reported for the ABA Journal:

The Florida Supreme court has suspended a lawyer for two years for rude conduct and recommended that the case be studied “as a glaring example of unprofessional behavior.”

The court rejected a referee’s recommended sanction for Jeffrey Alan Norkin as too lenient, saying a two-year suspension is appropriate given Norkin’s “appalling and unprofessional behavior.”

The main object of Norkin’s ire was a 71-year-old attorney named Gary Brooks, who was suffering from Parkinson’s Disease and kidney cancer at the time and has since passed away. The Court noted that Brooks had a “lengthy and unblemished” legal career.

This portion of the Court’s lengthy opinion, quoted here by Weiss, gives you some idea of how bad Norkin’s behavior was toward Brooks and others:

“Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel.”

In my judgment, Norkin’s behavior went way beyond “rude,” the term used by Weiss to describe it. For a copy of the full Florida opinion, go here.

Concerns about bullying and incivility exhibited by lawyers have been raised repeatedly in bar association journals. Anecdotally, at least, the legal profession ranks high in the frequency of reports and complaints about bullying, both within law firms and between opposing counsel.

Not included in Weiss’s article was another piece of the Court’s opinion: It approved the referee’s recommendation that Norkin “undergo a mental health evaluation and participate in any recommended counseling.” I don’t know anything about Norkin beyond what I’ve read in the article and opinion, but this makes sense. Perhaps counseling will lead him to address the sources of his behavior and allow him to someday return to practice in a better state of mind, to the benefit of all concerned.

Neglected blog posts seeking more love

At times I will toil away at a blog post that I really think has something to say, only to find that it’s a dud with my readers. The WordPress platform that I use for this blog enables me to check how many “hits” a given article has attracted, and I can see which ones aren’t exactly lighting up the Internet. (In truth, a niche blog like this one rarely “lights up” the online world, but I’m cool with that.)

Anyway, as I close in on 1,000 posts for this blog, here are 10 articles that I believe fall within the “good-but-neglected” category:

Our avocations and hobbies: The third pillar of work-life balance? (2012) — On the importance of finding non-work activities that engage us.

I wish our political leaders would send us to the moon (2012) — A call for public leaders to inspire us, linking two nifty videos of JFK.

Professional schools as incubators for workplace bullying (2012) — Consider the seeds planted by law schools and med schools.

Loyalty, “betrayal,” and workplace bullying: Does insider status matter? (2011) — As a denizen of Boston, loyalty and betrayal are key concepts to me!

Dignity amidst horrific indignity: A job shoveling s**t in the Łódź Ghetto (2011) — A WWII story that helps to illustrate how almost any job has inherent dignity.

What’s the plot line of your life story? (2011) — Is it about overcoming the monster, comedy, rebirth, or something else???

What if we paid less attention to advertising? (2010) — Instead of “them” telling us what to buy…

The moral obscenity of a “jobless recovery” (2010) — Read this and compare to where we are three years later.

On hiring consultants (2010) — I would underscore what I wrote here.

Work and the middle-aged brain (2010) — Some things we do not as well, some things actually better.

Inspiration in Amsterdam

Anne Frank House, Amsterdam

Anne Frank House, Amsterdam (photo: DY)

I just returned from the biennial Congress of the International Academy of Law and Mental Health in Amsterdam, Netherlands, where I found myself inspired and informed by a global assemblage of professors, lawyers, judges, mental health providers, graduate students, and others who are committed to using law and public policy to advance mental health.

I went to a lot of panels, as the conference was the focal point of trip. However, I did accompany one of my friends to the Anne Frank House, the one “must see” item on my list for this first-ever visit to Amsterdam.

The photo above doesn’t do the site justice. It is the interior, which has been recreated to show us how Anne and seven others lived in hiding for some two years, that is so compelling. I realize that I am among countless others to say it, but it was a very moving experience to stand in the same cramped spaces of the “Secret Annex” where they lived before they were discovered and arrested.

For me, the most chilling part of the tour was walking up the long, narrow stairwell to the Annex, located behind the moving bookcase that covered the entrance. It was the same walk their captors took to arrest them.

You can take your own virtual guided tour of the Annex here.

University of Amsterdam, Faculty of Law building

University of Amsterdam, Faculty of Law building (photo: DY)

As I’ve written before, my participation in this conference is tied to my affiliation with the therapeutic jurisprudence (TJ) movement, the school of legal thought that examines the therapeutic and anti-therapeutic properties of our laws and legal systems. The conference included an ongoing series of 20 or so panels expressly related to TJ, stretching across the week.

In addition, the opening session — held at the University of Amsterdam’s law building shown above — had a special TJ connection. It featured the presentation of the Bruce Winick Award to Michael Perlin, by David Wexler.

These three individuals have played a critically important role in the development of therapeutic jurisprudence: Bruce Winick, who passed away in late 2010, taught at the University of Miami law school and co-founded the TJ movement with David Wexler, now at the University of Puerto Rico law school after many years at the University of Arizona. Awardee Michael Perlin, who teaches at the New York Law School in Manhattan, is among the world’s leading authorities on mental disability law.

One of Amsterdam's beautiful canals, early evening

One of Amsterdam’s beautiful canals, early Sunday evening (photo: DY)

Of course, I would be remiss if I didn’t include at least one photo capturing the beauty of Amsterdam. I opted for a quieter Sunday evening view of one of the canals, a contrast to the younger, louder, anything goes atmosphere that pervades this part of the city. I’m not much of a party animal — I joked to my friends that the free wheeling recreational choices of Amsterdam were wasted on me! — but being in a historic, old world city does allow for some reflective moments. That certainly was the case here, buoyed by the ideas sparked at the conference.

***

Previous posts referencing this conference:

The ongoing disconnect: Employment law and worker well-being

The social responsibilities of intellectuals at a time of extraordinary human need

Inauthenticity at work and the fast track to a midlife crisis

As a law student, lawyer, and law professor, I’ve spent a lot of time around people whose career ambitions are largely defined by others. To some extent, I have internalized some of those messages myself.

But one of the most important lessons I’ve learned is to pick and choose wisely among these markers of achievement. If you fail to do so, you may find yourself living an inauthentic life (at least the part spent at work), and your psyche may struggle with the grudging realization that you’re pursuing someone else’s definition of success. It’s an easy recipe for a midlife crisis.

This month, as thousands of people line up to accept their degrees at college and university Commencement ceremonies around the country, these thoughts deserve extra consideration.

Regrets

In the popular Marc and Angel Hack Life blog, Angel Chernoff writes about the “10 Choices You Will Regret in 10 Years.” The first two screamed out at me:

  • “Wearing a mask to impress others”
  • “Letting someone else create your dreams for you”

In graduate and professional schools, I see this process occurring all the time. It’s all about pursuing a fast track to success, and that path and destination are defined by others who have a vested interest in keeping it that way.

Especially susceptible to this messaging are younger folks who have never been afforded the privilege of thinking for themselves. And the better their grades and test scores, they more likely they are to be pushed onto certain paths.

My summer of discontent

My first major lesson in career inauthenticity came as a law student. I entered law school intending to be a public interest lawyer, and I envisioned a career spent in social and political change work. However, I temporarily succumbed to the siren call of corporate law, and I accepted a “summer associate” position with a large commercial law firm in Chicago.

Summer jobs at big law firms are a mix of tryout camp and wine-and-dining. Over roughly a 10-week period, the work of a summer associate is evaluated closely for the purpose of considering that individual for a full-time associate attorney position after graduation. In return, the law firm pays the summer associate handsomely (typically, a pro-rated equivalent of a first-year attorney’s salary) and hosts a variety of social events to sell the firm as a desirable place to work.

This Chicago law firm treated me with genuine respect and gave me a variety of challenging assignments. But within a few weeks of starting my summer gig, I knew the corporate law sector was not for me. Despite good colleagues and intellectually demanding work, throughout the summer I felt like I was giving an acting performance. It just didn’t feel right.

Although I was invited to return to the firm as an associate attorney after graduation, I declined the offer. Instead, I embraced my original aspirations and, during my final year of law school, accepted a job offer from the New York City Legal Aid Society. No regrets, not even when the student loan bills started to match my monthly rent!

Trade-offs

Of course, having and making choices doesn’t necessarily mean that we can have it all. As I suggested two years ago in a post about work-life balance, even the best of lives usually involve trade-offs. Electing to do something often forecloses doing another, at least for the time being.

That said, Big Life regrets tend to emanate more from inaction than actions, unless the latter are reckless or foolish. In her “10 Choices” blog post, Angel Chernoff warns against “(e)ndlessly waiting until tomorrow”:

The trouble is, you always think you have more time than you do.  But one day you will wake up and there won’t be any more time to work on the things you’ve always wanted to do.

Not always a choice

I understand that all of the above presumes a degree of choice in the matter.

However, sometimes that isn’t the case: Jobs that pay the bills and support families are in short supply these days, and pursuing an occupation that delivers a psychological reward beyond a decent paycheck may not be an immediate option.

If you have choices that create mere possibilities for matching passions with income, consider yourself very privileged. Countless millions of people in this world do not.

Avocations

The challenges of matching dreams with paychecks are among the reasons why I’ve devoted a number of blog posts to the concept of avocation. As I wrote last year:

An avocation falls somewhere between a job and a hobby. It’s an activity that may produce some modest income, and perhaps show promise of turning into a full-time job, but which ultimately we are drawn to because it is very satisfying on a personal level. Avocations may be among the keys to individual fulfillment during tough times when jobs that deliver both a decent income and psychic rewards are in short supply.

Avocations are highly underrated as potential door openers and as satisfying ends in themselves.

If you have the gift of choices…

…make them, don’t let others make them for you. Learn from the experiences and insights of others, and then incorporate those lessons into your own world view.

It’s an ongoing process. And except for a blessed few, it involves some stumbling and bumbling along, hopefully forward more often than backward.

Should lawyers who enable abusive employees be terminated?

The fallout continues from the situation involving former Rutgers men’s head basketball coach Mike Rice, who was fired last week after videotape of his repeated abusive treatment of his players went public. The media reported that Rutgers general counsel John Wolf lost his job in the immediate aftermath of that firing. Wolf apparently had played a key role in advising Rutgers late last year that it could retain Rice by imposing a short suspension and a fine.

Demoted, not terminated

It turns out that Rutgers pulled a bit of a fast one. Wolf was not terminated from employment; rather, he was demoted to a lower position. The ongoing outcry to that decision and the seeming public deception on the part of Rutgers have led to his resignation. As reported by the Associated Press (via Yahoo! Sports):

A Rutgers University lawyer resigned Thursday amid growing anger that he was still employed by the school after approving a decision in December to suspend rather than fire basketball coach Mike Rice after becoming aware of a video showing the coach hitting, kicking and taunting players.

The university last week announced that John Wolf, who had been serving in an interim basis as the university’s top in-house lawyer, had resigned from his leadership position. School officials at first would not clarify what that meant, but then this week acknowledged that he was remaining at Rutgers as a lower-level lawyer.

A closer look

Was Wolf’s ouster merited? I have written before about how the worst employers seem to have the most thuggish lawyers representing them. It’s not clear to me that either characterization fits here, although Rutgers’s attempt to hide the true nature of Wolf’s employment status indicates that they still don’t get it.

I also wrote in my earlier post that had Rutgers been my client, they would’ve known clearly and unequivocally of my belief that termination was the most appropriate response to Rice’s abusive treatment of his players. It does not appear that lawyers advising Rutgers took such a firm stance.

Assuming that Wolf served at the pleasure of Rutgers (i.e., in a more or less at-will capacity), it would’ve been completely within the university’s discretion to demote or terminate him for providing less-than-wonderful legal advice.

The role of legal counsel

Putting on my lawyer hat, I recognize that attorneys are not university presidents or CEOs in terms of having ultimate decision making authority. We can only advise our clients; we cannot force them to do what we believe is the right thing.

That said, when lawyers serve as handmaidens for wrongful behaviors by a client and its managers, they may pay a price in the all-too-unlikely event the organization is required to account for its actions. As the Rutgers saga continues to unfold, perhaps we’ll learn more lessons about the roles their attorneys played in these very unfortunate events.

Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering

Last week, Rutgers University men’s head basketball coach Mike Rice was fired after videotape of his ongoing verbal and physical abuse toward his players went viral. The video is a compilation of Rice at practice sessions, repeatedly yelling at his players (including loud profanities and homophobic slurs), aggressively grabbing and pushing them, and firing basketballs at them.

Rutgers athletic director Tim Pernetti reportedly knew of the behaviors as early as last summer.  He saw the videotape late last fall, and — after obtaining legal advice and consulting with Rutgers president Robert Barchi — gave Rice a slap on the wrist by suspending him for three games and imposing a fine.

However, the story resurfaced last week when the videotape went public. Suddenly, Rutgers found itself under a barrage of media attention, leading to a quick domino effect: At a Friday press conference, President Barchi said that he saw the video for the first time when the story was breaking and ordered Pernetti to fire Rice. Following Rice’s termination, Pernetti resigned amidst cries for his departure. Rutgers general counsel John Wolf also was shown the door. (Barchi, the guy at the top, still retains his job as of this writing.)

Ethical systems failure

The details continue to surface, so it’s likely that more information will flesh out the story of how this abusive coach managed to avoid termination until Rutgers had no other choice. But even with what we know, it’s clear that that Rutgers mishandled the situation at every level.

Bullying coach

After watching the video several times and reading a lot of the news coverage, it’s obvious to me that Mike Rice is much more than your stereotypical over-the-top coach. He’s got a hair-trigger temper, he’s verbally abusive, and he sees nothing wrong with physically assaulting his players. (For portions of the videotape, Google “Mike Rice Rutgers video” and get some choices.)

Guys like this should not be coaching.

John Baldoni, writing for Forbes, quickly put Rice’s behavior in the context of workplace bullying — even citing studies by the Workplace Bullying Institute — and urged employers to watch the Rice video:

Every senior executive needs to watch the video of former Rutgers basketball coach Mike Rice verbally and physically abusing his players during practice.

…Fear of the boss, coupled with the belief that management will not listen, cows employees into silence and so it is up to executives who want to do the right thing to initiate anti-bullying policies that ensure the protection of employees and the banishment of bullying.

Bad management

Departed athletic director Pernetti, the point person in the university’s handling of the situation, is a Rutgers graduate and a true believer in his alma mater‘s sports program. It’s likely that he was too invested in that devotion to render a sensible decision when Rice’s behavior and the videotape were brought to his attention.

However, there’s plenty of responsibility to go around, as Tim Eder reports for the New York Times:

But Mr. Pernetti is hardly the only person who watched the edited video and still approved of keeping Mr. Rice on staff until last week. The athletic department’s human resources and chief financial officer saw the video, as did the university’s outside legal counsel. At least one member of the board of governors saw it. Robert L. Barchi, the university president, has said he did not see it before last week, although at least one of his senior directors asked him to watch it.

Questionable lawyering

At the lengthy Friday press conference, Rutgers senior officials explained that in the fall, they consulted their legal counsel about how to handle the Rice situation. While perhaps engaging in some buck-passing, it is obvious that they felt they received bad advice. After speaking with their lawyers, the officials believed that Rice could be retained with the mild discipline imposed. (No doubt this informed their decision to relieve their general counsel of his duties when the story went viral.)

We don’t know the exact conversations between Rutgers officials and their lawyers last fall, but had Rutgers been my client, and even had I believed they could technically defend a decision not to fire Rice, I would’ve told them to consider the big downside risks of the light discipline they ultimately imposed (brief suspension, fine). Those risks would include future legal ramifications and creating a public perception (in this case, an accurate one) that they were sweeping abusive behaviors by their basketball coach under the rug.

In no way would that client have left the conversation without knowing my clear belief that terminating the coach was the better decision, planted on the ethical high ground.

It’s not just Rutgers

Rutgers couldn’t respond decisively and ethically to mistreatment that easily justified termination. Unfortunately, this institution is far from being alone. It simply got caught in a massively public way.

In organizations big and small, prominent and anonymous, abusive behaviors occur all the time — routinely protected, ratified, and even encouraged by a management structure that somehow doesn’t understand the human and institutional costs.

The sooner we understand that Rutgers represents a significant minority of organizations that have difficulty doing the right thing, the better we’ll comprehend the nature and impact of bullying and related behaviors at work.

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