Trauma-Informed Legal Perspectives on Workplace Bullying and Mobbing

At next week’s Work, Stress and Health Conference in Minneapolis, Minnesota, I’ll be presenting a short paper, “Trauma-Informed Legal Perspectives on Workplace Bullying and Mobbing,” on a panel with Drs. Maureen Duffy and Gary Namie. I’m happy to include the paper in its substantial entirety here. Regular readers of this blog will find a lot of material that I’ve already included in various chunks here, but I hope it will be interesting and informative nonetheless.

Introduction

Emerging insights about psychological trauma and post-traumatic stress disorder are informing our understanding of legal disputes involving workplace bullying and mobbing, as well as suggesting how trauma-informed employment lawyers, managers, and human resources personnel can be more effective in dealing with legal situations involving abusive work environments. Among other things, neuroscientific discoveries concerning psychological trauma carry potentially great significance for legal and benefit claims involving workplace bullying and mobbing.

Linking Workplace Bullying and Mobbing to Psychological Trauma

Workplace mobbing researchers Leymann & Gustafsson (1996) associated severe work abuse with Post Traumatic Stress Disorder early on in their pioneering work. Since then, scholars, mental health providers, and subject matter experts on workplace bullying and mobbing have made those connections as well (Hogh, Mikkelsen, and Hansen, 2011, pp. 115-17).

Targets of bullying and mobbing have described the trauma of work abuse through narrative descriptions of their experiences. For example, Tracy, Lutgen-Sandvik, and Alberts (2006) interviewed self-identified targets of work abuse. Targets’ accounts were “saturated” with references to “beating, physical abuse, and death” (Tracy, Lutgen-Sandvik, and Alberts, 2006, p. 160). The abuse process was described alternatively as a “game or battle,” a “nightmare,” “water torture,” and a “noxious substance” (Tracy, Lutgen-Sandvik, and Alberts, 2006, p. 159).

Emerging Neuroscientific Insights

In his 2014 book The Body Keeps the Score, trauma expert Dr. Bessel van der Kolk discusses research on how traumatic experiences impact the brain, which may include sharp cognitive impairments that undermine an individual’s ability to present information in an ordered manner (van der Kolk, 2014). Functional magnetic resonance imaging (fMRI) shows how psychological trauma activates parts of the brain associated with emotions (the so-called right side), while shutting down parts of the brain associated with speech and logical thinking (left side). These effects can be replicated well after the original traumatic event(s). Accordingly, an individual experiencing psychological trauma may be able to share emotions and impressions about the experience, while encountering great difficulty in setting out the narrative story behind it. Dr. van der Kolk calls it “the speechless horror” (van der Kolk, 2014, p. 43).

Emerging Significance for Employment Law and Legal Practice

These developing insights and discoveries concerning psychological trauma carry potentially great significance for legal and benefit claims involving workplace bullying and mobbing. They also raise potential opportunities and challenges for employment lawyers on both sides of the aisle who are dealing with alleged instances of bullying and mobbing.

Challenges

Mainstreaming fMRI technology – Although fMRI technology is used increasingly in research, its use in clinical settings lags far behind. More significantly for this discussion, its reliability as legal evidence has not yet been widely established, and in some instances has been questioned by courts.

Causation and before/after documentation – Most legal claims and some employee benefits (especially workers’ compensation) require sufficient evidence of causation between the legally significant workplace events and the complained-of harm or injury. In cases where PTSD is part of a claim for damages or worker benefits, the plaintiff or claimant may have to establish factual causation. Thus, if fMRI technology becomes significant in this realm, it may be necessary to have both “before” and “after” scans in order to show impairment due to work-related psychological trauma.

DSM-5 PTSD requirements – In the current edition of the DSM, the list of requisite predicate stressor events for a PTSD diagnosis continues to exclude many instances of non-physical bullying or mobbing: “death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence.”

Potential Applications

Legal client counseling – Employment lawyers who gain a basic understanding of psychological trauma will be in a better position to talk to, interview, and counsel clients who are experiencing it.

Workplace anti-bullying legislation – Currently there is no general, direct legal claim for workplace bullying in the U.S. However, scientific evidence of how trauma can impair brain functioning supports passage of the Healthy Workplace Bill, model legislation I have authored that provides bullying targets a private legal claim for damages and creates legal incentives for employers to prevent and respond to bullying behaviors (Yamada, 2004; Yamada, 2013).

Workplace bullying-related litigation — Some bullying-related mistreatment may be legally actionable under employment discrimination laws, anti-retaliation and whistleblowing statutes, tort (personal injury) causes of action, and collective bargaining laws (Yamada, 2000; Yamada, 2013). Whenever these legal claims are raised in connection with bullying and mobbing situations, evidence of psychological trauma is relevant to prove emotional distress, health care-related damages, and potential decline in on-the-job productivity.

Workplace safety and health laws — Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, a covered employer must provide employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Brain imaging eventually may help to document the serious harm wrought by bullying and mobbing and thus bring it within the General Duty Clause of OSHA.

Workers’ compensation laws – Workers’ compensation laws provide benefits to workers who are injured in the course of and arising out of employment. The easiest type of WC claim is a physical injury leading to a physical impairment, such as a worker who severely injures an arm on the job and thus experiences a significant physical impairment as a result. The hardest type of WC claim is the so-called “mental-mental” scenario, e.g., non-physical forms of sexual harassment, bullying, etc., leading to mental impairments. Evidence of impaired brain functioning associated with trauma can help to buttress WC claims associated with bullying and mobbing.

 References

Hogh, A., Mikkelsen, E. G., & Hansen, A. M. (2011). Individual consequences of workplace bullying/mobbing. Bullying and harassment in the workplace: Developments in research, theory, and practice. (Einarsen, S., Hoel, H., Zapf, D., & Cooper, C., eds., Boca Raton, FL: CRC Press).

Leymann, H., & Gustafsson, A. (1996). Mobbing at work and the development of post-traumatic stress disorders. European Journal of Work and Organizational Psychology, 5(2), 251-275.

Tracy, S. J., Lutgen-Sandvik, P. & Alberts, J.K. (2006). Nightmares, demons and slaves: Exploring the painful metaphors of workplace bullying. Management Communication Quarterly, 20, 148-185.

Van der Kolk, B. (2014). The body keeps the score: Brain, mind, and body in the healing of trauma. (New York, NY: Penguin).

Yamada, D. C. (2000). The phenomenon of “workplace bullying” and the need for status-blind hostile work environment protection. Georgetown Law Journal, 88(3), 475-536.

Yamada, D. C. (2004). Crafting a legislative response to workplace bullying. Employee Rights and Employment Policy Journal, 8(2), 475-521.

Yamada, D. C. (2013). Emerging American legal responses to workplace bullying. Temple Political & Civil Rights Law Review, 22(2), 329-354.

6 responses

  1. Another “evidentiary” inroad is to look at the mind/body health of others who “left” the job. In my situation other targets were being seen by doctors who were practically begging them to take a medical leave. Most were also prescribed anti-depressant/anxiety medication. Plainly speaking, if a group of workers have performed their jobs in different environments but once they work in another one and a percentage begin to show signs of psychological injury that needs to be treated; one could confidently allege a toxic work environment. Thank you, David.

  2. Another topic is when your employer tries to sabotage you from fair treatment within the workers comp. system. There is no legal recourse.

  3. This article is so spot on. I have been through this and suffered PTSD from workplace harassment. I hope that this will become a law for every entity which employs “human beings” and an understanding of the effects it causes. It is a serious issue in the workforce today. Thank you for sharing so I myself know and can continue to learn the question of why. Its an inhumane treatment and people suffer immensely.

  4. For the past 2 years I have been experiencing workplace mobbing. Where they have the whole building stalking me. I am black, 59, and make approx-lately 5.00 more than my co-worker. I have perfect attendance, but I am being followed, stalked every day. Note my co- worker misses at least 1 day bi-weekly, late constantly, on boyfriend’s problems. Yet nothing is done. She is also 8 yrs. younger than me. They do nothing to her were she’s been on the job 3 yrs. longer than me but already this year she missed approx. 10 days. late approx. 15 or more. Not because of sickness but she comes to work beat up, bruised, black eyes etc. I on the other hand go on breaks 3 people or more follow me, if I go on outside for lunch 4 or 5 follow me, they put 95% of the work on me, while she’s allowed to sleep her drunk off during the day. This is a living nightmare.

  5. Thank you, David. After submitting very clear documentation of perjury, I am dismayed to be called “overly sensitive” after a Board review that completely ignored facts that controlled how financial work was to be properly performed in preparation and completion of large daily deposits. Apparently the WC Board is so out of touch to conclude that staff and I could just take money from the rack without knowing that the deposit has to match precisely with the number and value of tickets sold. The bank would report any shortage immediately, yet the WCB would rather believe the fairytale version as told by the bad boss. Sad state of affairs.

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