Therapeutic jurisprudence, employment law, and workplace bullying

I just returned from Florida Coastal School of Law in Jacksonville, where I participated in a terrific symposium on Therapeutic Jurisprudence (or “TJ,” as it is conveniently abbreviated).  The Florida Coastal Law Review sponsored the program, with articles to be published later in a special symposium volume.

 

You may be asking, what is therapeutic jurisprudence, and what does it have to do with this blog?  TJ, according to law professor David Wexler, one of its founders, involves the “study of the role of the law as a therapeutic agent” by focusing “on the law’s impact on emotional life and on psychological well-being.”

 

Much of the scholarship and advocacy on TJ has been in fields such as criminal law and family law.  At this juncture, there is only a smattering of commentary on TJ and employment law.  In an effort to help fill that void, my talk and eventual article focus on what insights from psychology are useful towards framing how we look at employment law, using workplace bullying as the backdrop to my discussion.  Industrial/organizational psychology, occupational health psychology, and relational psychology are among the fields that should inform our understanding of the law of the workplace.  

 

My talk was well received, and the other presenters gave compelling, insightful talks.  With regard to workplace bullying, I stressed that the absence of legal protections for targets of severe mistreatment and the lack of legal incentives for employers to undertake preventive measures contribute to profoundly anti-therapeutic consequences for workers and workplaces.

 

Here is a list of presenters, drawn the Florida Coastal website (http://www.fcsl.edu/node/588):

Included among the honored speakers are the two founders of Therapeutic Jurisprudence, Bruce Winick, a professor of law at the University of Miami, and David Wexler, a professor of law at the University of Arizona. Professor Winick will be speaking on public health law relating to the elderly; Professor Wexler will speak on “form reform” in criminal law. The other honored speakers include:

• Susan Daicoff: Professor of Law at Florida Coastal School of Law – on sexual harassment and discrimination law
• David Yamada: Professor of Law at Suffolk University Law School – on employment law
• Kathy Cerminara: Professor of Law at Nova Southeastern University – on death and dying issues
• Cindy Adcock: Professor of Law at Charlotte School of Law- on death and dying issues
• Shelley Kierstead: Professor of Law at Osgoode Hall Law School (Canada) – on family law
• Marsha Freeman: Professor of Law at Barry University School of Law – on family law
• Dax Miller: Third year student at Florida Coastal School of Law – on family law form reform

In addition, Susan Harthill, a Florida Coastal professor and member of the NWI advisory committee, served as a responder to my talk and shared some of her ideas about the potential application of workplace safety laws to bullying situations.

 

To learn about the International Network on Therapeutic Jurisprudence, go here: http://www.law.arizona.edu/depts/upr-intj/.  For an interesting paean to therapeutic jurisprudence and a plea for its greater presence in American law and procedure, see Mark Satin’s article in his Radical Middle newsletter: http://radicalmiddle.com/x_wexler.htm.

Most Bosses Think They’re Great (and How They COULD Be)

A neat little science blog, World of Weird Things, recently ran this post titled “Calling All Boss Haters” examining how bad bosses may get away with being, well, bad bosses:

As it turns out, being a boss often means that you just have to confidently talk like one and managers tend to hold an overinflated opinion of themselves and their performance.

The post contains a link to a 2007 Business Week management study reporting that 90% of the managers and executives surveyed put themselves in the top 10% of performers.

Given the fact that many organizations do not use any form of “bottom up” or “360” feedback on managerial performance, it appears that a lot of bosses are immune from meaningful review by most of their employees.

There’s also a connection between the overinflated view that many bosses have of themselves and the prevalence of workplace bullying.  Rates of narcissism run high in managers and executives, and this is a contributing factor towards bullying behaviors at work.

How they COULD be

It doesn’t necessarily have to be this way.  On this claim I appeal to the late Robert Townsend, perhaps one of the first “celebrity” CEOs of the modern era.  In 1970 his book, Up the Organization (now available in a 2007 commemorative edition), first appeared on the bookshelves, and it’s still considered a classic in management literature.  In the style of many head honcho types, Townsend was a guy who spoke his mind.  For example, in the book, he railed against racism in the workplace, but he also had no use for labor unions.

Anyway, in an appendix, Townsend suggested that employees should rate their bosses on a 1 (worst) to 10  (best) scale, based on the following categories:  Is your boss (1) available; (2) inclusive; (3) humorous; (4) fair; (5) decisive; (6) humble; (7) objective; (8) tough; (9) effective; and (10) patient?

Townsend advised that if your boss scores below 50, “look for another job.”

Okay, so it’s a simplistic, unscientific little exercise.  But I’d bet that most bosses who score in the higher ranges have earned the respect of, and get a fair day’s work from, the bulk of their employees.  Good leadership is hard to quantify in a precise manner, but these factors provide some very useful guideposts.

The fate of federal employment discrimination claims

The Wall Street Journal reports that federal employment discrimination claims are difficult to win:

A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs. They also get less time in court, with judges quicker to throw out their cases.

Here’s the WSJ article: http://online.wsj.com/article/SB123500883048618747.html.

Sadly, none of this comes as a surprise.  Although studies suggest many reasons, it’s worth emphasizing that the federal judiciary constitutes one of the most privileged and least diverse cohorts in the American workforce.  It is fair to hypothesize that only a small proportion of these judges have ever been in a position to reasonably suspect that they are being treated in a discriminatory manner.  This insulation from an experience that confronts many workers may make them less understanding of, and less sympathetic towards, discrimination claims.

Hat tips to, and more discussion to be found on, Workplace Prof (http://lawprofessors.typepad.com/laborprof_blog/2009/02/wsj-on-discrimi.html), and HR Lawyer’s Blog (http://www.hrlawyersblog.com/2009/02/articles/age-discrimination-1/do-federal-judges-discriminate-against-discrimination-claims/).

Website(s) of the Week: Towards Lifelong LERNing

The non-profit Learning Resources Network (LERN) is “an international association of lifelong learning programming, offering information and resources to providers of lifelong learning programs.”  For organizations that value the professional and vocational growth of their employees, LERN is a great resource, offering workshops, seminars, courses, and training materials in adult and continuing education.

The president and founder of LERN is William Draves, a foremost expert in lifelong learning and adult education.  Back in the day, Draves was a leading force behind the “free university” movement.

The LERN website is at http://www.lern.org.

Two upcoming conferences of note

Here are two upcoming conferences that may be of interest to those who are involved in employment relations and committed to psychologically healthier workplaces.  I have attended and presented at both, and I happily can attest that they have been compelling learning experiences due to the breadth and quality of the programs and speakers.   I’m posting about them now for those who may want to make plans to attend and to submit a proposal for a paper or presentation:

Work, Stress, and Health 2009: Global Concerns and Approaches — 8th International Conference on Occupational Stress and Health — Nov. 5-8, 2009 — San Juan, Puerto Rico.

This international conference is co-sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, Society for Occupational Health Psychology, and the University of Puerto Rico.  It is a terrific, interesting multi-disciplinary conference, useful to researchers, professors, and practitioners alike.

Here’s the conference website, with instructions and deadline info for submitting proposals: http://www.apa.org/pi/work/wsh.html.

“Transforming Research: Evidence and Practice” — 7th International Conference on Workplace Bullying and Harassment — June 2-4, 2010 — University of Glamorgan, Cardiff, Wales, United Kingdom.

This biennial conference is the world’s leading gathering of researchers, academicians, practitioners, and students interested in workplace bullying.  If my experience is at all representative, your head will be spinning with ideas and reactions to the speakers, panels, and poster sessions.

Here’s the conference website, with instructions and deadline info for submitting proposals: http://www.bullying2010.com/.

In December I posted an essay containing my reflections on the 2008 International Conference in Montreal: https://newworkplace.wordpress.com/2009/01/01/immersion-in-the-twisted-world-of-abuse-at-work/

Workplace bullying and mobbing in academe: The hell of heaven?

(Image courtesy of classroomclipart.com)

Academic life can be a great thing, providing one with the opportunity to engage in teaching and educational activities, scholarly research and writing, and myriad forms of public service.

However, the culture of academe can be petty, mean, exclusionary, competitive, and hierarchical.  Bullying and mobbing behaviors occur with surprising frequency, and sometimes with stunning brutality.  They can transcend the type of institution, academic disciplines, and political beliefs.

Here’s my short take on bullying in academe: Academicians are adept at intellectual analysis, manipulation, and argumentation.  When applied to the tasks of teaching, scholarship, and service, these skills reinforce the most socially useful aspects of the academy.  But many of us who have worked in academe have seen what happens when they are applied in hurtful or even malicious ways.

Of course, exquisitely rationalized actions and explanations occur in many organizations, but in dysfunctional academic settings, they often rise to an art form.  After repeated such bludgeoning, we may become accustomed to, and sometimes all too indifferent towards, intellectual dishonesty and rhetorical “mal-manipulation.”  Call it Dilbert in Tweed.

Because this kind of mental facility often is at the heart of both perpetrating and defending bullying, academe becomes a natural petri dish for such behaviors, especially the covert varieties.  After all, so many decisions in the academy are based upon very subjective judgments.  This can create a particularly attractive setting for the passive-aggressive bully and the quiet-but-deadly mob.

Bullying and mobbing behaviors among faculty receive the largest share of attention, but the possible institutional status combinations are much more varied. Here are the most common ones:

• Administrator bullying or mobbing administrator/faculty/staff
• Tenured faculty bullying or mobbing non-tenured faculty
• Tenured faculty bullying or mobbing tenured faculty
• Faculty bullying or mobbing mid-level administrator/staff/graduate students
• Staff bullying or mobbing staff

Fortunately, bullying and mobbing in the academic workplace is receiving more attention. For those who want to investigate this topic further, here are some good starting places:

Faculty Experiences

Two leading researchers on workplace bullying and abuse, Loraleigh Keashly & Joel Neuman, offered these findings about faculty bullying experiences in “Faculty Experiences with Bullying in Higher Education: Causes, Consequences, and Management,” published in Administrative Theory & Praxis (2010).

• Bullying by faculty tends to be indirect rather than direct, due to the “norms of academic discourse and collegiality.”
• Tenured faculty who are bullied are more likely than untenured faculty to reduce their commitments to institutional work.
• Tenured faculty are more likely than untenured faculty to engage in “direct aggression and bullying” in response to “perceived norm violations.”
• Tenured faculty tend to direct overtly aggressive behaviors toward untenured faculty, staff members, or students.
• Tenured faculty tend to use “indirect forms of aggression” towards peers, department chairs, and senior administrators.
• Untenured faculty are more likely to use “indirect and passive aggression” against the perceived sources of their stress and frustration.
• Institutional cost-cutting measures are associated with “workplace aggression and bullying by faculty.”

Mobbing in Academe

Kenneth Westhues is a University of Waterloo sociologist who has written a series of insightful, provocative, and exhaustively researched books about workplace mobbing in academe, mostly involving faculty as targets.  His webpage devoted to academic mobbing is a rich portal of information.

Ken’s work, which is grounded in meticulous case studies and analyses of how professors have been subjected to extreme mistreatment at the hands of administrators and faculty colleagues, digs well beneath the surface:  He shows us just how twisted and frightening these behaviors and the rationale behind them can become – often at the hands of intelligent, successful people who claim to be fair-minded, ethical human beings.

Ken and I don’t agree on some key matters. For example, he generally opposes the enactment of workplace anti-bullying laws and strongly prefers the term mobbing to bullying. Nevertheless, his work in this realm is critically important.

His most important book, in my opinion, is The Envy of Excellence (2004), which explores in detail the mobbing of former St. Michael’s College, University of Toronto theologian Herbert Richardson during the 1990s.

My response to The Envy of Excellence and general observations about mobbing and bullying in academe are contained in my essay, David C. Yamada “The Role of the Law in Combating Workplace Mobbing and Bullying,” which appears in Ken’s edited volume, Workplace Mobbing in Academe (2004).

Other Very Useful Books

• Jamie Lester, ed., Workplace Bullying in Higher Education (2013) (especially recommended)
• Darla J. Twale & Barbara M. De Luca, Faculty Incivility: The Rise of the Academic Bully Culture and What to Do About It (2008)
• Leah P. Hollis, Bully in the Ivory Tower (2012)

Social Media

Commentaries on bullying and mobbing in academe are appearing with greater frequency in the social media as well:

Bullying of Academics in Higher Education, hosted by a group of European scholars, is an excellent ongoing source of information and commentary.

The Workplace Bullying in Higher Education Facebook group is a more interactive source of information, commentary, and opinion.

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This post was revised in April 2014.

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Workplace bullying as psychological torture

When I get more time to collect them, I’ll write a post on the arguments that opponents of workplace bullying laws are making to oppose extending legal protections to those who have been severely mistreated at work.  Not all of these arguments are without merit, but one of the most misguided claims is that a workplace bullying law would impose a “civility code” on employees and would allow people to recover damages for every little unpleasant exchange at work.

Nothing could be further from the truth.  Workplace bullying, as many of us have come to define it, is targeted and often malicious.  In fact, the Healthy Workplace Bill that I drafted (which is serving as the basis of most of the workplace bullying legislation filed in the U.S.) requires plaintiffs to prove malice, a very high standard under the law.

How targets describe their experiences

But this is much more than a legal argument.  We must remember that severe workplace bullying is a form of psychological torture. This is borne out by the findings contained in an important 2006 article published in the Management Communication Quarterly (citation below).  Communications professors Sarah Tracy, Pamela Lutgen-Sandvik, and Jess Alberts examined how bullying targets perceived their experiences and found that targets’ narratives “were saturated with metaphors of beating, physical abuse, and death.”

One target reported feeling “maimed” and “character assassinated,” while others used terms such as “‘beaten,’ ‘abused,’ ‘ripped,’ ‘broken,’ ‘scarred,’ and ‘eviscerated’.” The bullying process was described alternatively as a “game or battle,” a “nightmare,” “water torture,” and a “noxious substance.”  In describing themselves, targets used terms such as “slave or animal,” “prisoner,” child with “an abusive father,” and “heartbroken lover.”

Citation: Tracy, Sarah J., Lutgen-Sandvik, Pamela and Alberts, Jess K. (2006). Nightmares, Demons, and Slaves: Exploring the Painful Metaphors of Workplace Bullying. Management Communication Quarterly, Vol. 20, No. 2.

Ross Runkel’s Employment Law 101

If you’re looking for a handy, accessible, clearly-written introduction to various employment law topics, check out Ross Runkel’s Employment Law 101: http://www.lawmemo.com/101/archives.html.  It’s a mini-online encyclopedia on the law of the workplace.  Here are links to his first two topics:

• Sources of Employment Law #2

• Introduction #1

Assisting employees in financial distress

The first issue of Research Works, published by the Partnership for Workplace Mental Health of the American Psychiatric Association (http://www.workplacementalhealth.org/index.aspx), focuses on how employers can help workers who are experiencing financial distress: http://www.workplacementalhealth.org/Money_RW_0210.pdf.

Recommended action steps include provision of personal financial education, credit and debt management counseling, and employee assistance programs. 

Of course, for employers who aren’t paying their workers a decent wage, the obvious response is to pay them more if at all possible.  However, not all financial distress is due to a lousy paycheck.  This publication offers useful advice to employers who want to help their workers make it through financially difficult times.

“What are you working for?”

This is the question posed by Kevin Kennemer, a former human resources director for a major corporation who now runs his own organizational consulting business, in his blog Chief People Officer: http://thepeoplegroupllc.com/2009/02/what-are-you-working-for/.  In this post, Kennemer writes about the importance of good leadership, mission-based living, and avoiding the destructiveness of greed.  He observes that so many American workers are “unfulfilled, unsatisfied, unrecognized, under-utilized, under-appreciated and unengaged.”

In one of his very first blog posts, Kennemer discusses the “Signs of a Toxic Company Culture,” with a list of revealing questions to ask about our workplaces: http://thepeoplegroupllc.com/2008/04/signs-of-a-toxic-company-culture/.  Too many workers will find themselves nodding their heads in agreement.

The more I surf the blogosphere looking for interesting commentary about the workplace, the more I’m convinced that kindred spirits are arriving at roughly the same place, often following different paths to get there.  Themes such as integrity, fairness, dignity, and work ethic recur with encouraging repetition, and they appear to transcend geographic regions, vocations, personal demographics, and political orientations.  Amidst the doom and gloom of today’s business and economic headlines, we see signs of an emerging consensus about the need for better workplaces.