Workplace bullying and the ombudsman

On Monday I had the privilege of delivering a keynote address to open the annual conference of the International Ombudsman Association (IOA), held in Houston, Texas.

For readers unfamiliar with this position, an organizational ombudsman is a senior-level administrator who is granted an independent, neutral role to facilitate the resolution of interpersonal disputes and to engage in institutional troubleshooting. IOA’s membership is a mix of ombuds from colleges and universities (its largest group), government, and private industry, as well as independent consultants. 

The speaking invitation gave me a chance to address and interact with several hundred attendees about the challenges posed by workplace bullying. Based on the responses, clearly these issues present themselves frequently in their practices. My own remarks, a mix of “workplace bullying 101” and observations & advice specific to ombuds, were followed by a lively and informed Q&A session.

In addition, at least two other programs at the conference (which continues through Wednesday) are devoted to workplace bullying, showing once again how this topic is entering the mainstream of contemporary employment relations.

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I’d like to thank the IOA and fellow attendees for this invitation and for their warm introduction to the organization. I regret that I was unable to stay for the entire conference, because I so enjoyed the day I was able to spend with them. Special thanks to ombuds Lisa Witzler, conference co-chair and my primary IOA liaison, for her guidance in preparing a talk that would be useful to IOA members.

Extended outline of keynote address

Conference attendees and others can access an extended outline of my keynote address, “Responding to Workplace Bullying: The Role of the Ombudsman,” here.

On organizational cultures

During the Q&A, I recommended a piece by Drs. Linda Hartling and Elizabeth Sparks on organizational cultures. You can access a past blog post about it here, which includes a link to ordering the article.

2010 IOA journal issue

The IOA’s journal devoted an excellent package of articles to bullying behaviors in its 2010 issue, which can be accessed here.

Workplace bullying and ethical leadership

Especially for IOA members who may be visiting this blog, my 2008 article, “Workplace Bullying and Ethical Leadership,” may be of interest. It can be accessed here.

What does ABC’s “Revenge” teach us about workplace injustice?

I’ve never been a fan of soap operas, but a very soapy new primetime drama, ABC’s “Revenge,” has been a lock on my DVR this fall.

About “Revenge”

“Revenge” is the title, philosophy, and practice of this weekly guilty pleasure. The story features a young woman, Emily Thorne (played by Emily VanCamp), who mysteriously appears in the Hamptons, New York’s refuge for the ultra wealthy.

Emily is not who she says she is. She’s really Amanda Clarke, and years ago, when Amanda was still a girl, her rich, cutthroat neighbors framed her father for a horrific act of terrorism and essentially destroyed their lives. Emily/Amanda now has returned home to exact revenge on them, in brutally cool and calculated ways. (“Revenge” is said to be loosely patterned after Alexander Dumas’s The Count of Monte Cristo, but believe me, you don’t have to be familiar with the book to get into the show!)

Each new episode features intrigue, manipulation, and carefully planned acts of payback. It also highlights an ongoing cat fight, nay, death battle of the tigresses, between Emily and leading Hamptons socialite Victoria Grayson (played by Madeleine Stowe), a key operative in her father’s disgrace and demise.

This could be a giant recipe for an early series cancellation but for the pitch perfect performances by the lead actresses. VanCamp is the ideal cold-blooded avenger masquerading as the sharp, pretty, sweetheart-next-door. Stowe pulls off her Ice Queen of the Hamptons role — one that easily could become a caricature in the hands of a less-gifted performer — with just the right touch. And when Emily and Victoria are in the same room, well, if looks could kill…

Revenge vs. schadenfreude

Are fans of “Revenge” frustrated avengers pining for a chance to inflict payback on those who have hurt them? If so, then there are millions of us waiting in the wings.

Fortunately, I don’t think this is the case. It boils down to the difference between exacting revenge — i.e., taking an active part in the retribution — and experiencing schadenfreude, the German loanword defined as deriving joy or satisfaction from another’s misfortune. The former involves planning and participation, while the latter represents an emotional response.

For some, a successful act of revenge can result in schadenfreude. For others, schadenfreude is more comfortably experienced as the result of a misfortune visited upon someone by another party or initiative.

I believe that most viewers enjoy “Revenge” because it allows us to revel in a fictional version of the latter variety. After all, cutting through the soap, “Revenge” reminds us that plotting real-life payback easily becomes an all-consuming and blackhearted passion. It often requires the same overheated emotion as the act that inspired it, not to mention a heckuva lot of care and attention to detail if one does not want to get caught.

Furthermore, the vast majority recognize that carrying an unyielding need for vengeance can be a dark, heavy, and unhealthy burden. Even if we struggle to forgive our trespassers, we nevertheless understand the personal costs of devoting ourselves to visiting retribution upon them.

And yet, “Revenge” may satisfy some inner craving for schadenfreude, which allows us to eat our cake but not have to answer for the calories. When one of Emily’s brilliantly designed acts of payback succeeds, it’s hard not to say, hah hah, gotcha!

Workplace revenge fantasies

No doubt that when some viewers are relishing Emily’s latest success, they’re thinking about specific bosses or co-workers who treated them poorly or unfairly.

Indeed, some of the “bad boss” books that I’ve paged through over the years are full of revenge fantasies, imagined and realized. People construct, and occasionally act out, these fantasies because they lack the power to use organizational resources to make things right. And when institutions do not embrace fairness and accountability, those on the receiving end of perceived injustices are left to their own devices and coping skills.

These are no trifling concerns, as I hope this blog has demonstrated. Perceptions of organizational justice impact productivity and individual well-being. Careers, livelihoods, and paychecks are at stake, not to mention personal health and dignity.

“Revenge” doesn’t get into the institutional ripple effects; it’s all personal, either in-your-face or behind-your-back. Ultimately, it isn’t psychologically deep enough to teach us anything more profound than the costs of being obsessed with retribution. But that in itself is a valuable lesson, and it’s delivered in marvelously entertaining fashion to boot.

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Go here to watch full episodes of “Revenge.”

Workplace disputes and alternative dispute resolution

On Thursday I participated in a lively seminar at the Western Institute for Social Research in Berkeley, CA, titled “Conflict vs. Abuse: What Should Be Mediated?” Here’s the seminar description:

This seminar . . . examines the types of differences and disputes that may be appropriate for mediation vs. those that are not. In particular, it raises the question: What are the distinctions between “ordinary” conflict, which may include incivility, disrespectful acts and statements, and expressions of anger, and situations that have become abusive, such as targeted harassment, bullying, and physically threatening or harmful behavior? We will examine these situations as they arise in family situations, workplaces, and communities.

Seminar participants included a terrific group of WISR learners, faculty, and friends, including co-conveners Larry Loebig (mediator, coach, and Internet entrepreneur) and John Bilorusky (co-founder and president of WISR). It was sponsored by WISR’s Mediators Beyond Borders chapter.

The discussion covered not only mediation, but also arbitration, restorative justice, and topics to alternative dispute resolution (ADR).

My take

I shared with the group my ongoing concerns about using mediation to address severe workplace bullying and similar forms of targeted mistreatment at work. As I see it, serious disagreements, various instances of incivility and disrespect, and other forms of conflict at work are ripe for mediation. In some instances, lesser forms of discrimination and sexual harassment may be appropriate candidates as well.

But genuine workplace bullying and severe sexual harassment are forms of abuse, and for many reasons, abuse is not easily “mediated.”

This is especially so when a party to a dispute presents narcissistic, sociopathic, or psychopathic tendencies, typically involving frightened target vs. a smart, smooth, manipulative abuser. In the workplace context, it may involve an employee (“emotional,” “delusional,” “overreacting”) dealing with a psychologically abusive supervisor (“hey, we had a great time playing golf,” “seems like an okay guy”).

Thus, I think we have to be very cautious about how we incorporate mediation and restorative justice approaches into workplace dispute resolution. But moving cautiously does not mean staying put. The current litigation model of resolving workplace disputes is broken, at least outside of the collective bargaining framework. Consequently, ADR merits serious consideration and, when appropriate, careful implementation.

Professor Susan Duncan’s article

Toward that end, law professor Susan Duncan (University of Louisville) has posted a thought provoking article, “Workplace Bullying and the Role Restorative Practices Can Play in Preventing and Addressing the Problem.” Here’s a snippet from her abstract:

This article documents the prevalence of workplace bullying and the human and capital costs of such behavior. The article then briefly describes the concept of restorative practices and analyzes the benefits and opportunities the approach would have in the context of workplace bullying. The final section of the article explores potential roadblocks to implementing restorative practices in the workplace and concludes by offering concrete ideas on future steps companies and policymakers should take to implement restorative practices.

You can read Prof. Duncan’s full abstract and download her article without charge, here.

Part of the toolkit

In sum, mediation and ADR generally should be pieces of our toolkit for resolving workplace conflict and mistreatment. But we always should be aware of their potential to reinforce the original mistreatment and abuse under the guise of seemingly more peaceful, less confrontational methods.

Confidential settlements in employment cases: Poof, as if nothing happened

The vast majority of discrimination and sexual harassment complaints are settled or otherwise disposed of before they even come close to going to trial. The typical settlement involves monetary compensation to the complainant, without any admission of wrongdoing by the employer or alleged wrongdoer(s), and with all parties obliged to keep the matter confidential.

This subject has entered the news cycle because of allegations that GOP presidential hopeful Herman Cain had sexually harassed two female employees in the 1990s. Both women accepted settlements and left the organization.

Pursuant to the Cain story, I was asked by CNN’s Emanuella Grinberg to comment about confidential settlements in sexual harassment cases, and I expressed my concerns about the downsides of this common practice (full article here):

But there are greater collateral effects of concealing real instances of harassment, said David Yamada, Suffolk University law professor and director of the New Workplace Institute in Boston.

“Employers become complicit in shielding themselves and the individual harassers — many of whom are management level or supervisors — from genuine accountability,” he said. “If the confidential settlement does not result in any concrete discipline or discharge of the harasser, there’s a decent chance it will happen again to another employee.”

Weighing costs and benefits

Don’t get me wrong: Settling a valid claim of discrimination or harassment often is better for employee and employer alike. I also have no desire to subject targets of sexual harassment or any other kind of workplace mistreatment to long, stressful, drawn-out legal proceedings. And I know that some employers may settle claims they do not believe are meritorious largely because it will cost too much to lodge a defense.

However, bad employers often have a long track record of settling legitimate claims very quietly. In these organizations, for example, if a serial harasser has enough power or influence, he may well be able to keep his position despite his misconduct. This means, of course, that the idea of accountability is tossed aside, and that more employees are likely to be mistreated in the future.

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Related post: Quiet cover-ups

Can workplace incivility ever be healthy?

Have you ever been in an argument that became heated and angry, but concluded with a resolution of differences and perhaps even the strengthening of a friendship or relationship?  If so, was expressing anger part of the path toward getting to a better place?

Sorting and working through differences can be emotional stuff. We care about what’s being discussed. Egos enter the picture. At times, perceived injustices are involved. On occasion, past baggage can play a role.

Sometimes we need to express our emotions in order to move toward resolution. The decibel level may rise — hopefully not too high — and harsh words may be exchanged before our better natures prevail.

What about work?

Those of us who study workplaces generally assume that incivility is a bad thing. After all, an interaction involving incivility can ruin a work day, especially if it comes from your boss. At times, incivility can elevate into active disrespect and even bullying. When such behaviors run rampant, their sum total makes for a lousy workplace. So…less incivility beats more incivility, hands down.

However, there are times when incivility may be an understandable consequence of a disagreement or difference of opinion. Such exchanges — often marked by the use of otherwise rude, harsh, or offensive words — can clear the air, hopefully paving the way toward a healthy resolution.

In fact, when these feelings are buried, they may lead to passive-aggressive behaviors that only make things worse. On an institutional level, the unavailability of emotional release valves may fuel what psychologists Linda Hartling and Elizabeth Sparks call “pseudo-relational” cultures, i.e., workplace cultures that value superficial “niceness” over constructive change and honest dialogue.

Caveats and definitions

Of course, there are some big caveats here. I’m not suggesting that any workplace become an emotional free-for-all; we all need to exercise a degree of self-control. In addition, when “clearing the air” opens the door to a more powerful party exacting retribution on the less powerful one, well, that compounds a nasty situation. We also need to understand how differing power relationships affect how communications are perceived.

Furthermore, I realize that many definitions of workplace incivility cover behaviors that some of us would deem bullying. Without parsing all those variations, I’ll simply say that when incivility morphs into targeted, abusive bullying that affects someone’s job performance and well-being, it’s never an acceptable method of “resolving” differences.

The role of the law

I think we should leave it to individuals and organizations to wrestle over questions of what constitutes civil vs. uncivil behavior. When it comes to legal standards, I agree with the Supreme Court’s sentiments, repeated in major decisions interpreting sexual harassment law, that the law should not become a workplace “civility code.”

But once that work environment becomes abusive, it’s time for the law to step in. We have some of those protections in place today when situations involve discrimination and harassment based on protected class membership such as sex, race, religion, or disability. Unfortunately, a gaping hole in the law remains with workplace bullying, and that’s why I drafted the anti-bullying Healthy Workplace Bill and why advocates across the country are asking state legislatures to enact it.

Incivility vs. bullying

At times I have used terms such as bullying and incivility somewhat interchangeably. But in reality, there often are stark differences. Workplace bullying is a form of abuse. It involves a party or parties exercising institutional and/or personal power over another in a hurtful way.

By contrast, some expressions of incivility, while not enjoyable or advisable as a general state of affairs, can be part of a process of resolving workplace differences and disputes, at least under the right circumstances.

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Related posts

Does Wisconsin judge David Prosser need anger management counseling?

Wisconsin state Supreme Court Justice David Prosser seems to have trouble controlling his considerable temper, and liberal female Justices on the Court appear to be his targets.

Todd Richmond of the Associated Press reports (link here):

Liberal Justice Ann Walsh Bradley has accused conservative Justice David Prosser of trying to choke her during an argument in her state Capitol office on June 13, the day before the court handed down a decision upholding a new law that eliminates most public employees’ collective bargaining rights. Prosser has denied the allegations.

Richmond further reports that the local county sheriff and the state’s judicial oversight commission have commenced investigations.

Other news reports coming out of Wisconsin indicate that Justice Bradley recommended to her judicial colleague that he seek anger management counseling.

Emerging track record

Earlier this year, I wrote about incivility on the Wisconsin high court, including a previous incident involving Justice Prosser:

The justices have been engaging in an ugly and now public feud, with one member of the court – Justice David Prosser — calling  ”Chief Justice Shirley Abrahamson a ‘bitch’ behind closed doors and threaten[ing] to ‘destroy her’ more than a year ago when the court split over removing fellow Justice Michael Gableman from a criminal case as he faced an ethics allegation,” as reported here by Meg Jones of the Milwaukee Journal Sentinel.

Soon after this incident was reported, Prosser barely held onto his seat on the Supreme Court, narrowly winning re-election over a little-known liberal female challenger.

The A.P.’s Richmond adds that “questions about Prosser’s temper date back to his days as a Republican legislator.”

I can see clearly now

When I was interviewed in March about the situation by the Wisconsin Law Journal (link here), I played it close to the vest, taking care not to jump to conclusions because it seemed premature to do so.

But now the picture has become much clearer. Barring the unlikely possibility that his colleagues on the bench are lying, Justice Prosser’s bullying has gone from offensively and aggressively verbal to physically assaultive. His inability to control his temper is threatening the work of the state’s highest court and making it something of a legal soap opera on a national stage.

The legal profession has enough problems with Type A folks who cannot control their aggressive natures. Do we really need a state supreme court justice serving as a reverse role model for the worst of these behaviors?

More from Wisconsin: Battling (and perhaps bullying?) Supreme Court Justices

The labor issues concerning Wisconsin’s public employees have been attracting national attention, but within the Badger State a notable battle also has been brewing between two of its Supreme Court justices.

The justices have been engaging in an ugly and now public feud, with one member of the court — Justice David Prosser — calling  “Chief Justice Shirley Abrahamson a ‘bitch’ behind closed doors and threaten[ing] to ‘destroy her’ more than a year ago when the court split over removing fellow Justice Michael Gableman from a criminal case as he faced an ethics allegation,” as reported here by Meg Jones of the Milwaukee Journal Sentinel.

Certainly incivility, and maybe bullying?

Jack Zemlicka of the Wisconsin Law Journal, a legal newspaper, examined the situation from a dispute resolution angle (link here). Here’s an observation that I contributed to the piece:

A bickering court’s final decision in a case should be a concern, given the stakes involved for the public in Supreme Court decisions, said David Yamada, a law professor at Suffolk University in Massachusetts who has written extensively on conflict and incivility in the workplace.

“The implications are significant,” he said. “To a degree, personal conflict could enter into writing of majority, concurring or dissenting opinions.”

What didn’t make it into the article were my remarks on the differences between incivility and bullying. This clearly involves workplace incivility. However, while the thuggish and sexist nature of Prosser’s remarks toward Abrahamson is very disturbing, it’s not clear that the overall situation crosses the line into bullying (by either party), which typically involves abusive exploitation of power imbalances. (Abrahamson is the Chief Justice on the court, while Prosser is an Associate Justice.)

My sense is that this situation could’ve been eased by effective mediation, which would’ve allowed the parties to put their grievances on the table and hopefully work them out.

Labor implications

Wisconsin’s Supreme Court Justices are elected, not appointed. Prosser, a conservative, is up for reelection this year, and the results very well could have consequences for any Supreme Court decisions concerning the status of the controversial legislation that strips most state employees of their collective bargaining rights.

Of course, if Prosser loses his seat, then presumably he will be able to hurl threats and epithets at Abrahamson only from afar.

The judicial election is on April 5. Once again, the eyes of the nation (at least those of legal eagles) are on Wisconsin. Stay tuned.

Work on TV: Cop dramas

I love good cop dramas on TV, not only for their entertainment value, but also because they do a great job of portraying the ups and downs of working for a living.  Here are some of the underlying themes that are prominent in many these shows:

1. Pursuing one’s passion (the bad and good of it)

2. Career advancement (triumph and disappointment)

3. Diversity and inclusion (often not a lot of it)

4. Work-life balance (mainly lack thereof)

5. Incivility and bullying (often lots of both)

6. Politics (both in-house and electoral)

7. Ethics (good cop, bad cop)

8. Dispute resolution (from informal chats to murder)

My favorites (alphabetical order)

I’ve written about two of these shows before (The Wire and Prime Suspect), but here’s a longer list of my favorite police dramas:

Blue Bloods — A brand new weekly, it’s among a minority of cop shows built around a non-dysfunctional family. Tom Selleck is excellent as the New York City police commissioner.

Foyle’s War — A treat from PBS, this ongoing series is set in small town England during World War Two, featuring Michael Kitchen as Inspector Christopher Foyle.

Hill Street Blues (*) — Pathbreaking 80s classic set in an unspecified American big city. Hey, let’s be careful out there.

Homicide: Life on the Street (*) — David Simon’s earthy Baltimore, Take 1. Addictive.

Prime Suspect (*) — A gift from across the pond, Helen Mirren is astoundingly good as British police inspector Jane Tennison. Start with Prime Suspect 1 and follow her career and life. Brilliant stuff.

The Shield (*) — You’ll feel guilty for hoping that LA cop Vic Mackey doesn’t get caught.

The Wire (*) — David Simon’s earthier Baltimore, Take 2. Widely acclaimed for its portrayal of life in inner city urban America.

(*) = has completed series run; episodes available on DVD.

But where’s the union?

Even the best cop dramas miss on the realities of being in unionized work settings. Most rank-and-file police officers and detectives are unionized, and collective bargaining negotiations over salaries and benefits have a significant impact on their lives. In most cop shows, however, the union presence is practically invisible, usually limited to calling in a union rep when an officer gets in trouble.

Ambassadors gone wild! Meet a pair of bullying diplomats

Not all ambassadors are, well, diplomatic. In fact, given that ambassadorships are plums often dished out to campaign supporters and political allies, it shouldn’t surprise us that a few of these folks turn out to be workplace bullies.  To wit:

Turmoil lurks in Luxembourg

Businesswoman Cynthia Stroum was appointed U.S. ambassador to Luxembourg after being a key fundraiser for President Obama in 2008. On its own, the Luxembourg gig must be fairly peaceful, but Ambassador Stroum has been stirring up things within the embassy. As reported by Brian Montopoli of CBS News (link here):

It appears that her fundraising abilities did not translate to diplomatic success, however: According to a scathing State Department probe out Thursday (PDF), Stroum was seen by most employees as “aggressive, bullying, hostile and intimidating.”

. . . Things got so bad, the report says, that staffers asked for transfers to Afghanistan and Iraq due in part to “a climate of acute stress” at the embassy.

Memo to President: When foreign service officers seek postings to war zones in search of less stressful work environments, you know you botched this one.

Cuffing ’em around at the UN

Before Stroum, the last ambassador to become notorious for bullying behaviors was John Bolton, appointed to represent the U.S. at the United Nations by President George W. Bush. Here’s a snippet of his antics, quoted from a piece I wrote in 2005 (link here):

In recent months, many of these [bullying] behaviors have been attributed to Bolton by current and former State Department co-workers and contractors. Ex-State Department intelligence chief Carl Ford, a Republican appointee, called Bolton a “serial abuser” of subordinates, adding that he showed a talent for stroking superiors while kicking down underlings.

The most publicized allegations came from Melody Townsel, a woman who worked with Bolton in Moscow under a government contract in 1994. Townsel told the Senate Foreign Relations Committee that Bolton chased her down the halls of a Moscow hotel, threw a tape dispenser at her, made disparaging remarks about her appearance, left threatening letters under her hotel door, and pounded on her door and yelled at her.

And that doesn’t even cover the stories about how Bolton antagonized people from other nations!

Bigger problem

This isn’t about knocking Democrats or Republicans; bullying behaviors cut across political lines. Rather, these appointments highlight a larger problem related to bullying at work, namely, the elevation of the wrong people to management positions requiring tact, diplomacy, and social intelligence.

Obviously neither Stroum nor Bolton possess the people skills to lead an embassy staff, and it is quite possible that their behaviors have negatively impacted America’s standing in the world community. When important leadership positions are doled out based on favors, political alliances, or simply negligent vetting, bad consequences are likely to follow.

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Hat tip to Lucretia Perilli for the Stroum story.

Can an apology help to prevent and settle employment litigation?

Can saying “We’re sorry” help to resolve employment disputes?

Diane Curtis, writing for the California Bar Journal, reports on the emerging role of apology and disclosure in preventing and settling legal disputes:

University of Illinois law professor Jennifer Robbennolt has done a series of studies that show apologies can help resolve legal disputes in cases ranging from medical malpractice and divorce and custody to disputed dismissals and personal injury. “Conventional wisdom has been to avoid apologies because they amount to an admission of guilt that can be damaging to defendants in court,” says Robbennolt….“But the studies suggest apologies can actually play a positive role in settling legal cases….”

What about employment disputes?

In dispute resolution, apology and disclosure most often are associated with areas such as medical malpractice litigation and criminal justice.  The stakes in these disputes can be very high, involving strong emotions, fatalities or significant injuries, and (in civil cases) considerable dollars.

You don’t hear much about apology and disclosure in the employment context.  Instead, even when it’s clear that a wrong has occurred, not infrequently organizations will (1) try to discourage someone from filing a complaint; (2) retaliate against the complainant; (3) admit no wrongdoing, even in a settlement; and/or (4) insist that the terms of any settlement be sealed.  And while no ethical lawyer will counsel retaliation against an employee, the other three tactics are completely within commonly accepted notions of an attorney’s obligation of zealous representation of a client’s interests.

As a result, there often is very little sense of reconciliation between the employee and employer.  Even those workers who are successful at negotiating a decent settlement are left feeling beaten up and betrayed by the process.  Bonds are shattered rather than repaired. From a psychological standpoint, outcomes are often extremely unhealthy.

Why not?

It would take considerable reworking of the commonly assumed role of an employer’s lawyer to encourage, when appropriate, apology and disclosure as a healthy approach toward resolving employment disputes.   Right now, too many management-side lawyers assist their clients in creating a public fiction: We do no wrong — never, ever.  However, is it possible that a different turn will lead to less litigation, less contentious dispute resolution, and — ultimately — better employee morale?

Hat tip: Cutting Edge Law

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