A few weeks ago, I posted about options for employers and their lawyers for addressing workplace bullying, drawn from a law review article I’m writing about therapeutic jurisprudence and employment law. This week, I’d like to borrow from that article again to consider client counseling options for lawyers who are counseling bullying targets, especially in view of the lack of specific legal protections against bullying. It starts with this (very representative) hypothetical:
Janet Choy, your potential client, believes she is facing termination from her job as an administrative assistant at a local business. Choy claims that her boss treats her abusively and unfairly, regularly yelling at her, criticizing her smallest mistakes, blaming her for his own mistakes, and belittling her in front of co-workers.
The human resources director has warned Choy that she is in danger of being let go because she may not be a “good fit” for her boss, who needs an assistant who could work better under pressure. Choy claims to be experiencing severe stress and anxiety and believes she is suffering from depression, even though she has no documentation from any health professional. Especially as a single mother, she fears the loss of health insurance benefits for herself and her child.
Although Choy believes she is being “harassed” and “discriminated against,” your questioning yields no evidence of grounds for a discrimination lawsuit. You do believe, however, that if she is fired, she may have grounds for claim against her supervisor for intentional interference with contractual relations, although this would be a difficult and costly case to pursue.
Such scenarios can be time-consuming staples of a plaintiffs’ employment lawyer’s practice: A prospective client is in trouble at work, she believes she is being treated unfairly and illegally, and she seeks legal assistance to make things right. The lawyer may have to sit through a fairly lengthy, convoluted, and emotional explanation of a situation, often concluding that any legal claim at this juncture is a long shot and may not even exist if the person is fired. Many lawyers would explain this to Choy and then find a way to close the interview, suggesting that she call if “anything happens.”
In fact, many plaintiffs’ employment lawyers conduct scores of initial interviews with prospective clients, either in person or over the phone, for every one situation that leads to a formal retainer agreement being signed. Because many of these lawyers define themselves as litigators, they naturally will be on the lookout for cases that could result in a successful lawsuit. Complaints about unfair treatment, discipline, or even termination usually are not the stuff of a potential lawsuit unless they raise issues of discrimination or an exception to the rule of at-will employment. Without the decent prospect of a settlement or an award of damages, it may not be considered economically viable for a plaintiffs’ lawyer to represent and advise an individual worker on a longer term basis.
However, it also is possible that Janet Choy could benefit greatly from a lawyer’s advice and counsel beyond the prospects of litigation. Choy appears to be a target of workplace bullying. If Choy’s lawyer is not well versed in the effects of workplace bullying, she may not understand the severe harm it can inflict on an individual target and the damage it can do to her livelihood. This is where some of the non-legal research on the destructive effects of bullying on targets can be enlightening. Armed with this knowledge, and practicing in a therapeutic jurisprudence mode, Choy’s lawyer can help her navigate her options in light of her legal rights, overall health, financial viability, and future employability.
In some bullying situations, litigation, or the threat of litigation, may yield a successful result. (For an overview of possibilities, see a short paper I authored, “Potential Legal Protections and Liabilities for Workplace Bullying,” linked below.) In Choy’s case, a lawsuit against her supervisor for intentional interference with contractual relations may take years to litigate, with no assurances of victory. Especially in view of her mental health, Choy may be better off switching than fighting, but she is not completely free to walk into work the next day and resign. Choy could be facing choices or circumstances that implicate eligibility for unemployment insurance, family and medical leave, health insurance coverage (including mental health services), workers’ compensation, and disability benefits.
It may require patient questioning and wise counsel to help her sort through these possibilities, as these options relate directly to her employment status. Navigating the thicket of public and private employee benefit programs is a challenge for anyone, but for someone in a stressed emotionally vulnerable state, it can be overwhelming. In addition, it is possible that Choy could benefit from mental health counseling. Her lawyer may suggest this possibility, adding that it may help to document any psychological harm caused by the bullying.
For a pre-publication draft of “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace” (forthcoming, Florida Coastal Law Review)
For an earlier post on management-side lawyers and workplace bullying