The Kavanaugh confirmation as a mirror onto America

(image courtesy of getdrawings.com)

Here in America, we have just endured an extraordinarily ugly and partisan confirmation process for a U.S. Supreme Court nominee. Events leading to the confirmation of Brett Kavanaugh to be the next Justice of the U.S. Supreme Court now comprise a terrible episode in our political and legal history. This will reverberate on many levels for a long time.

Kavanaugh, a U.S. Court of Appeals judge, was nominated by Donald Trump to fill a vacant seat on the Supreme Court. Late in the confirmation process, several women accused Kavanaugh of sexual misconduct when he was in high school and in college.

Psychology professor Christine Blasey Ford was the first and most prominent accuser, alleging that during high school, a drunken Kavanaugh and his friend attempted to rape her. She and Kavanaugh both testified about these allegations before the Senate Judiciary Committee on September 27. The debates over these allegations and Kavanaugh’s suitability for confirmation have dominated the national news coverage and everyday conversations across the country.

I make no claim to objectivity on this topic. I was among some 2,400 American law professors who signed a public letter expressing concerns about Judge Kavanaugh’s judicial temperament and urging the U.S. Senate to reject the appointment. However, my purpose here is to pull back on the camera a bit and examine the destructive impact of this episode on America’s civic, political, and legal culture. Here are some of the key dimensions:

A deeply divided country

If America needed yet another painful reminder of its deep political and ideological divisions, this was it. It’s too early to predict exactly how this will affect future national elections, but it will play a major role in shaping political discussions.

Trauma and abuse

For trauma survivors, especially women who have experienced sexual assault, these events may have been alternately re-traumatizing, empowering, sorrowful, clarifying, angering, depressing, and validating. It has been a very difficult and trying two week period for many. It remains to be seen whether this will galvanize a movement to call greater attention to sexual assault, psychological trauma, and the rights of abuse victims.

Toxic masculinity

The mocking and trashing of women who courageously gave credible accounts of sexual assault was horrific and outrageous, especially when it came from men in positions of power. It’s time to mainstream the term toxic masculinity and to understand that this behavioral dynamic is very much a part of American culture.

Getting to the truth

Thanks to boundaries set by the White House, the FBI’s investigation into allegations against Kavanaugh was grossly inadequate and gave all appearances of providing cover, rather than searching for the truth. Neither the accusers’ allegations nor Kavanaugh denials were subjected to a thorough vetting, and numerous possible witnesses were ignored.

High school

Believe me, a lot of people people experienced vivid flashbacks to high school during these events. For some this was accompanied by uncomfortable memories and contemplations about behavioral excesses during adolescence and early adulthood.

Class privilege

Matters of class privilege played out prominently. Media coverage of student life at elite private high schools and Ivy League career networks gave detailed, snapshot examples about how such advantages manifest themselves early in life and continue through adulthood.

Public job interview

My own impressions of Kavanaugh notwithstanding, I would not wish upon anyone this equivalent of a job interview in the form of a public ordeal, with millions of people watching the proceedings and discussing very personal and normally private aspects of an applicant’s life. It made for a tawdry spectacle.

Institutional credibility

The reputations of both Congress and the Supreme Court took well-deserved hits. And thanks to Kavanaugh’s highly partisan language and angry, threatening tones towards his opponents in his September 27 testimony, his credibility as an impartial judge is forever suspect. With that suffers the credibility of the Supreme Court as a judicial body.

Bullying behaviors

Accusations of bullying behaviors flew back and forth between both sides. While few incidents rose to the kind of virulent bullying discussed often on this blog, the proceedings were rife with incivility and name calling.

Conservative bloc

The Kavanaugh confirmation gives the conservative bloc of the Supreme Court the votes it needs to advance a sharply right-leaning legal agenda for years to come. We are very likely to see reversals in civil rights and workers’ rights as a result.

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The events surrounding the Kavanaugh confirmation process will be studied and discussed for many years. Kavanaugh’s votes and judicial opinions will be scrutinized closely against the backdrop of how he was confirmed. I don’t have much optimism for the civic aftermath of what we’ve just experienced, but I hope that I’m wrong.

Have we entered an “era of empathy” at work? (Uh, well, at least not yet)

Four years ago, business school professor Rita Gunther McGrath (Columbia U.) suggested in a piece for the Harvard Business Review that we are entering an “era of empathy” at work. I wasn’t sure what to make of that assertion when I first read her commentary, so I kept the article on file and told myself that I’d return to it someday. I figured this Labor Day weekend is a good time to revisit it.

According to Dr. McGrath, “we’ve seen three ‘ages’ of management since the industrial revolution, with each putting the emphasis on a different theme: execution, expertise, and empathy.”

The rise of an industrial economy prompted the era of execution, focussing on “execution of mass production, and managerial solutions such as specialization of labor, standardized processes, quality control, workflow planning, and rudimentary accounting were brought to bear.”

Then came the era of expertise, signaled by the emergence of university business schools and the establishment of journals such as the Harvard Business Review during the late 1800s and early 1900s. These developments marked “progress toward the belief that management was a discipline of growing evidence and evolving theory.”

Now, wrote McGrath, we have entered a third era, that of empathy:

Today, we are in the midst of another fundamental rethinking of what organizations are and for what purpose they exist. If organizations existed in the execution era to create scale and in the expertise era to provide advanced services, today many are looking to organizations to create complete and meaningful experiences. I would argue that management has entered a new era of empathy.

This quest for empathy extends to customers, certainly, but also changes the nature of the employment contract, and the value proposition for new employees. We are also grappling with widespread dissatisfaction with the institutions that have been built to date, many of which were designed for the business-as-machine era. They are seen as promoting inequality, pursuing profit at the expense of employees and customers, and being run for the benefit of owners of capital, rather than for a broader set of stakeholders. At this level, too, the challenge to management is to act with greater empathy.

The era of empathy hasn’t reached the workplace yet

As Dr. McGrath suggests, all the research, knowledge, and analytical tools are in place to usher in this age of empathy into the workplace: We’re aware of burgeoning income and wealth inequality. We’re aware of negative changes in employment relations, especially the demise of unions. We’re aware that bullying, mobbing, sexual harassment, and other forms of worker mistreatment continue to inflict huge individual and organizational tolls.

We’re also aware that treating employees with a baseline of dignity is a great way to grow and maintain a stable, productive, and loyal workforce.

But here’s the disconnect. Despite all this research, knowledge, and analysis, too many employers are preserving the status quo, or doing even worse. On this Labor Day weekend:

  • Income and wealth inequality continue to expand, especially as measured by the widening gap between highest and lowest paid employees in organizations;
  • Employers, backed by inadequate enforcement of labor laws, continue to vigorously oppose unions and collective bargaining;
  • Work abuse in the forms of bullying, mobbing, and harassment continues to ignored and sometimes fueled by too many senior managers and executives.

I don’t think the era of empathy is going to become a reality without workers demanding so. While certainly there are employers who do the right thing by their employees and reap the benefits (Costco comes to mind), all too many of their counterparts operate in a much different manner. The latter includes some of the giants of our labor market (e.g., Amazon and Walmart), who set the pace for others and can do better.

Put simply, we need a revived, energetic, inclusive, and creative labor movement to usher in these needed changes. Unions will be a big part of that revival, but so will other worker advocacy, civil rights, and religious groups, as well as networks of individuals connecting in person and online. It will also require electing to office those who value the interests of everyday workers over the interests of those vested in concentrations of wealth and power.

It’s a big, challenging task. Labor Day is a good time to rededicate ourselves to it.

On being restlessly patient in advancing positive law and policy reforms

A piece in the current issue of the Economist, the venerable British news magazine, resurrects the tax policy positions of Henry George, an author and political economist who built a worldwide following during the last half of the 19th century:

ON A trip to New York in the late 1860s the journalist Henry George was puzzled. He found the rapidly growing city to be a place of unimaginable wealth. Yet it also contained deeper poverty than the less-developed West Coast. How could this be? George had an epiphany. Too much of the wealth of New York was being extracted by landowners, who did nothing to contribute to the development of the city, but could extract its riches via rents. The problem could be solved by a tax on land values.

George’s subsequent masterpiece, “Progress and Poverty”, sold more copies in America in the 1890s than any other book except the Bible. It spawned campaigns for land-value taxation around the world. It also inspired a board game, “The Landlord’s Game”, a precursor to “Monopoly”. The game was designed to show how property markets naturally tend towards monopolies in which one player can extract all the rent.

Examining the current state of tax policy, the Economist concludes that a stronger reliance on land taxation might be a good thing.

I’ve been interested in George’s land tax proposal ever since reading about it in Robert L. Heilbroner’s The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers back in college. (Heilbroner has passed, but his book — last revised in 1999 — remains, in my opinion, the most engaging, lucid, and accessible introduction to the history of economic thought.) As the Economist piece suggests, Henry George’s ideas would fade into obscurity. They have been kept alive by a small but determined band of economists and social activists, coalescing around a group of independent Henry George Schools dedicated to providing continuing education and scholarship about Georgist economic principles.

But the purpose of this writeup isn’t to convince you, dear readers, on the merits of Henry George’s taxation theories, even though I believe they are worth considering. Rather, it’s to point out that important ideas about law reform and public policy sometimes take years to percolate, in some cases beyond our lifespans.

With that reality in mind, I have favored an attitude of restless patience in advocating for desired changes in law and public policy. In this context I think of restless as being dissatisfied with the status quo. I think of patience as being smart, persistent, and determined. I have had to give myself this advice on at least three areas of law and policy reform very dear to me:

Workplace bullying and law reform

Some 20 years ago, my first law review article on the legal and public policy implications of workplace bullying was accepted for publication, and it would be published by the Georgetown Law Journal in 2000. Among other things, it surveyed potential legal protections for targets of workplace bullying under American employment law and found them wholly wanting. I proposed the parameters of what would become a model workplace anti-bullying statute, eventually dubbed the Healthy Workplace Bill (HWB).

For some 15 years, the HWB has been the main template for law reform efforts concerning workplace bullying, but it has not yet been enacted in its full form by any of the 30 states in which it has been introduced. However, in recent years we have had some breakthroughs, with several states and municipalities enacting workplace bullying legislation and ordinances drawing heavily from the language of the HWB. Unions and government entities are also using the HWB language to collectively bargain over workplace bullying concerns and to design internal agency employment policies.

Here in Massachusetts, we continue to work hard to make our state the first one to enact comprehensive workplace anti-bullying legislation. The HWB once again stalled in the just-completed session of the MA legislature, despite dozens of legislative sponsors and a positive report out of the committee overseeing it.

Advocacy work can be frustrating and sometimes demoralizing. But if you believe deeply in something, you keep going. Maybe you change strategies or tactics, but you persevere. And come January, when the 2019-20 session of the legislature begins, we’ll be ready to go.

Like an unwanted holiday fruitcake

In 2002, the Connecticut Law Review published my article on the legal status of interns, in which I looked at the burgeoning intern economy and concluded that many unpaid internships are running afoul of minimum wage laws. I hoped that the piece would quickly stir some interest, but for many years it pretty much sat there, like an unwanted holiday fruitcake.

This changed when a writer named Ross Perlin authored the first comprehensive examination of the explosive growth of unpaid internships, Intern Nation (2011). He referenced my 2002 law review article and called it “the single best source of information for American internships and the law.” (Thank you again, Ross, for pulling my article out of depths of Westlaw and Lexis-Nexis.) One of Ross’s readers, Eric Glatt, chased down my law review article and concluded that his unpaid internship with Fox Searchlight Pictures just might’ve been in violation of minimum wage laws. Eric would become the lead plaintiff in a federal lawsuit seeking compensation for that internship.

To our disappointment, federal courts have not been friendly to these claims brought by unpaid interns, adopting a very pro-employer legal test for exempting interns from the minimum wage. However, the door has not been completely closed on such legal claims, and the considerable publicity generated by these cases has caused many employers to opt to pay their interns. The debate over unpaid internships, once a non-existent one, continues to reverberate in business and legislative settings.

Should law be therapeutic?

In recent years I’ve allied myself with a much broader effort to change our laws and public policies, an interdisciplinary field of philosophy and practice called therapeutic jurisprudence. “TJ,” as it is commonly referred to, examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. It favors outcomes in legal disputes and transactions that advance human dignity and psychological well-being.

TJ was founded in 1987 by two American law professors, David Wexler and Bruce Winick. Although it has grown into a global network of scholars, lawyers, judges, and other practitioners, it has yet to enjoy a mainstream presence in legal academe or legal practice. To help expand TJ’s influence, we have formed a new non-profit, membership organization, the International Society for Therapeutic Jurisprudence. I am serving as the ISTJ’s first board chair.

I hope that someday, sooner than later, TJ will be recognized as a primary framing theory for the design and application of the law. In the meantime, I find myself inspired by that cohort of scholars, educators, and activists who have kept the flame of Henry George’s ideas alive for so many years.

On being restlessly patient

Indeed, I’d like to think that the spirit of Henry George is pleased to see his ideas about land taxation knocking on the door of greater mainstream reception. Of course, in my case I’d rather not wait for some 130 years to see workplace bullying laws widely enacted, interns being paid for their work, and our laws and public policies embracing human dignity and psychological well-being. But at least it’s a reminder that good ideas can’t be suppressed forever.

As I find myself urging upon those who are understandably frustrated with the pace of social progress and justice, we cannot control outcomes, we can only try to influence them. This is an especially important reality for the times in which we live. Buoyed by a spirit of restless patience, our job is to dig in, plant the seeds for positive change, and take part in moving our society toward something better.

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You may freely download my law review articles on workplace bullying, intern rights, and therapeutic jurisprudence from my Social Science Research Network page. At the risk of being immodest, I have been told by many folks who are not lawyers or academics that they are very readable and accessible, which I consider to be a supreme compliment.

Institutional gaslighting of whistleblowers

If you’re interested in whistleblowing and gaslighting behaviors, then I strongly recommend a piece by Retraction Watch, “How institutions gaslight whistleblowers — and what can be done.” It features an interview with Dr. Kathy Ahern (U. New South Wales, Australia), author of a new journal article on how whistleblowers are traumatized by institutional betrayal and gaslighting.

I’m going to share some snippets of the Retraction Watch interview with Dr. Ahern here, but it’s definitely worth a full look:

Whistleblower gaslighting entails officers of an institution using their authority to deceive a whistleblower so that he stays engaged in a process designed to harm him.  Employees have an expectation of support derived from social norms regarding workplace interactions and formal policies. Whistleblower reprisals have a sting of betrayal that is largely imperceptible to outsiders because gaslighting institutions use deception to exploit the employee’s trust in his employing institutions.  

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One gaslighting strategy is to use this trust to force the whistleblower to repeatedly defend himself against bogus disciplinary charges presented as genuine complaints.  Eric Westervelt describes whistleblowers at the U.S. VA who were subjected to investigations of unspecified charges such as “creating a hostile work environment” or “abuse of authority”, although subsequent FOI requests yielded no details of the charges.  As a gaslighting strategy, the dual purpose of false charges is to both discredit and exhaust the whistleblower.

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Descriptions of whistleblower experiences and outcomes in the literature show a constellation of symptoms that are very similar to complex post-traumatic stress disorder (C-PTSD) typically found in survivors of child abuse.  It is hypothesized that the abuse by a trusted, more powerful adult leads to a general distrust of self and others. Adults with C-PTSD have trouble regulating intense negative emotions, and feel disconnected to other people. 

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The other symptom I see in targets of whistleblower gaslighting is a desperate urgency to be believed.  This looks a lot like an “obsession,” but as with the “paranoia,” it is not the result of a mental disorder.  It is more like the normal response of someone who spent 10 years in jail for crime he didn’t commit. Such a person is indefatigable in pursuit of having his name cleared, as are targets of whistleblower gaslighting who also are intent upon clearing their names and reputations. 

Folks, there’s so much here that will resonate with individuals who have experienced or witnessed institutional responses to whistleblowing. For those who want to read Dr. Ahern’s scholarly take on this, please look at her journal article, “Institutional Betrayal and Gaslighting: Why Whistle-Blowers Are So Traumatized.”

In short, this is very important work.

If you’d like to read more about gaslighting behaviors generally, Dr. Robin Stern’s The Gaslight Effect: How to Spot and Survive the Hidden Manipulation Others Use to Control Your Life, (2018 pb ed. with rev. intro) is the best general treatment of the topic.

And here are some of my previous entries on gaslighting:

Gaslighting at work (2017, rev. 2018)

Is gaslighting a gendered form of workplace bullying? (2013)

Gaslighting as a workplace bullying tactic (2012, rev. 2017)

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Hat tip to Dr. Kenneth Pope for the Retraction Watch piece.

Forthcoming article: “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy”

Dear readers, later this year the International Journal of Law and Psychiatry, the peer-reviewed journal of the International Academy of Law and Mental Health, will publish my article, “On Anger, Shock, Fear, and Trauma: Therapeutic Jurisprudence as a Response to Dignity Denials in Public Policy.” Here’s the abstract:

This article asserts that when policymaking processes, outcomes, and implementations stoke fear, anxiety, and trauma, they often lead to denials of human dignity. It cites as prime examples the recent actions of America’s current federal government concerning immigration and health care. As a response, I urge that therapeutic jurisprudence should inform both the processes of policymaking and the design of public policy, trained on whether human dignity, psychological health, and well-being are advanced or diminished. I also discuss three methodologies that will help to guide those who want to engage legislation in a TJ-informed manner. Although achieving this fundamental shift will not be easy, we have the raw analytical and intellectual tools to move wisely in this direction.

If you’d like to read my author’s draft of the piece in a pdf, you may download it without charge from my Social Science Research Network page, here.

On the dynamics of “puppet master” bullying at work

image courtesy of free.clipartof.com

In 2012 I proposed a type of work abuse that fits somewhere between workplace bullying and workplace mobbing. I called it “puppet master” bullying and described it as a form of “multiple-aggressor abuse at work that may stand at the fault lines between common conceptions of bullying and mobbing.” Here’s more:

In these situations, a chief aggressor’s power and influence over a group of subordinates may be sufficient to enlist their participation in mistreating a target, creating what looks and feels like a mob. For example, if the aggressor is a mid-level manager, he may recruit HR to help out with the dirty work and encourage the target’s peers to shun or bully her.

Even in cases of peer bullying, one aggressor can use intimidation and persuasion to turn others against a peer-level target.

One of the key indicators of puppet master bullying, all too infrequently realized, is what happens when the master is removed from the scene. Typically, much of the malicious energy that fueled the puppets fades away, and so with it much of the bullying behavior.

To be honest, my learned colleagues who are researching and theorizing about work abuse haven’t exactly jumped on board with this concept, so perhaps I should heed the silence. However, I see the puppet master dynamic playing out in so many situations — including organizations and communities — that I’m still using the term. As I often do with this blog, I’d like to take a few minutes to share how my thinking about it has evolved, drawing on ideas and authors that I’ve discussed in previous posts.

Who are the players?

As I suggested in a post last year, it’s important to think about workplace bullying and mobbing in the context of human and organizational systems, whereby the following players play their roles:

Thus, a typical campaign of severe bullying or mobbing at work involves multiple players, including but hardly limited to:

  • The main aggressor(s);
  • The supervisor or boss of the main aggressor(s), in order to ratify and sometimes further the abuse;
  • On frequent occasion, peers recruited/pressured/incentivized to join in on the abuse;
  • Human resources personnel to bureaucratically process the abuse through review and discipline of the target;
  • Legal counsel to provide cover for the organization and sometimes direct additional intimidation toward the target.

This certainly applies to puppet master bullying. So let’s take a closer look at these players.

Chief abusers

Puppet master bullies are often pretty evil. Not only are they prone to treating others abusively, but also they are willing and able to enlist others to help do the job. The latter uses fear and intimidation, promises and incentives, or some combination of all.

When I envision the classic puppet master bully, I think of the opening to Dr. Martha Stout’s invaluable The Sociopath Next Door (2005):

Imagine — if you can — not having conscience, none at all, no feelings of guilt or remorse no matter what you do, no limiting sense of concern for the well-being of strangers, friends, or even family members. Imagine no struggles with shame, not a single one in your whole life, no matter what kind of selfish, lazy, harmful, or immoral action you had taken. And pretend that the concept of responsibility is unknown to you, except as a burden others seem to accept without question, like gullible fools.

OK, I understand that not every workplace abuser is a genuine, clinically diagnosable sociopath. However, the key message of that passage seems to apply to so many people who mistreat or exploit others at work: They don’t have a conscience, or at least not much of one. In fact, in discussing with others the challenges of anticipating and responding to the hurtful actions of nasty, abusive employers, I often suggest: Think like a sociopath. Then you’ll get it. And so it is with comprehending many puppet master bullies.

The puppets: Foot soldiers, defenders, followers, and bystanders

Puppet master bullying necessarily involves the willing/coerced/incentivized participation of many others. In talking to bullying and mobbing targets, one of their most common, anguished laments runs along these lines: How could they have gone along with this? Don’t they have any sense of decency? They had to know this was terrible and unfair, and yet they went along or turned the other way.

It is on this note that I draw insights from philosopher and writer Hannah Arendt, whose writings on the nature of Nazi Germany help us to understand abuse in many other settings, including the workplace. Here’s what I wrote in 2014:

Philosopher Hannah Arendt invoked the phrase “banality of evil” to describe how Adolf Eichmann served as one of Hitler’s architects of the Holocaust. Since then, the phrase has come to represent — in more generic terms — how ordinary people become easily invested in the values of a morally bankrupt status quo and participate in terrible behaviors that seemingly are unthinkable in civilized society. These insights teach us a lot about how bureaucratic enablers of abusive bosses can help to facilitate the destruction of a bullying target. These professional handmaidens (usually HR folks and employment lawyers) are more than simple bystanders; rather, they are complicit in the abuse.

In puppet master bullying situations, the enlisted individuals typically go well beyond HR and the legal department. They are recruited from virtually any setting in which the target works and interacts with others. They are the puppet master’s everyday foot soldiers in conducting the bullying.

In addition, successful (I hate using that word in this context) puppet master bullying campaigns require co-employee bystanders who look the other way when they witness or otherwise become aware of the mistreatment. It’s a variation on see no evil, hear no evil, speak no evil. They may not be actively partaking in the bullying, but they’re not going to do anything about it either,

Target perceptions

Some may believe I’m exaggerating, but to be on the receiving end of puppet master bullying (or genuine mobbing) is to experience terrorism on the job. And that exactly is what many of the chief abusers want to convey. In either form, it looks and feels like a mob on the receiving end. As I wrote in my 2012 post on puppet master bullying:

From the standpoint of the target, the distinctions often matter little in terms of the experience of being on the receiving end. Whether it’s someone surgically directing or controlling her minions to bully an individual, or a true mob descending upon a lone target, it sure as heck feels like a mobbing.

For those studying these behaviors and trying to develop measures to curb them, however, the distinctions do matter. With puppet master bullying, removing the instigator(s) may be enough to stop the abusive behavior. With genuine mobbing, however, the remedy is even more difficult, because the emotional impetus to act has now infected an entire group.

In other words, with puppet master bullying, cutting the strings may be sufficient for the “puppets” to stop their onslaught of abuse. With genuine mobbing, however, the puppets are sufficiently enlisted to continue the mistreatment on their own.

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Obviously we have a lot more to learn about comprehending and responding to bullying and mobbing in the workplace. I hope this has been of some help to folks who are experiencing or trying to understand this particular sordid brand of psychological abuse at work.

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