When workplace predators silence and intimidate their targets

The ongoing revelations concerning sexual harassment and abuse allegations lodged against powerful Hollywood producer Harvey Weinstein took a major turn this week via some excellent investigative reporting by the New Yorker‘s Ronan Farrow. Here’s the lede:

In the fall of 2016, Harvey Weinstein set out to suppress allegations that he had sexually harassed or assaulted numerous women. He began to hire private security agencies to collect information on the women and the journalists trying to expose the allegations. According to dozens of pages of documents, and seven people directly involved in the effort, the firms that Weinstein hired included Kroll, which is one of the world’s largest corporate-intelligence companies, and Black Cube, an enterprise run largely by former officers of Mossad and other Israeli intelligence agencies.

The details are stunning. Here are just a few:

  • “Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan.”
  • “The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories.”
  • “In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court.”

The full article is lengthy (as a first-rate investigative piece usually will be), but it’s well worth reading to grasp the extent of these efforts to investigate and intimidate victims and reporters.

NBC’s Megyn Kelly, Kate Snow, and Cynthia McFadden on the fallout

Some of the fallout from these revelations is discussed in this 11-minute segment featuring Megyn Kelly’s interview with NBC correspondents Kate Snow and Cynthia McFadden. It is also worth your time. Among other things, Kelly takes aim at how women are often ridiculed and dismissed when they make claims of abusive behavior by powerful men, often to the point of being called crazy and paranoid.

Moral monsters in suits

As Farrow’s New Yorker piece explains, prominent attorney David Boies was a key point person in running Weinstein’s black ops against these women and reporters. It brings to mind a blog post I wrote in 2011 about bad employers and their lawyers:

I have no academic study to verify this, but I have concluded that many bad employers have a sixth sense for retaining thuggish employment lawyers who serve as their willing executioners of workers who file complaints about working conditions, blow the whistle on ethical and legal lapses, or attempt to organize a union.

Indeed, to keep their misdeeds from going public and to preclude being held accountable for their actions, folks like Weinstein often need lawyers who are willing to help them. I once again appeal to Hannah Arendt to help us understand this dynamic:

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.

Attorney Boies had also been retained by the New York Times on various legal matters. Today, after learning that Boies had targeted their own reporters as part of this cloak and dagger campaign, the Times severed its ties with his law firm, stating:

“We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters….Such an operation is reprehensible.”

Been there, seen that

This aspect of the Weinstein saga may seem like an extreme anomaly. But for those of us who are closely familiar with other orchestrated attempts to further bully, silence, dismiss, marginalize, and disempower targets of interpersonal abuse, this is more validating than shocking. Unfortunately, money and influence can muster a lot of power to engage in further abuses, and this is simply a (now) very public manifestation of what continues to occur in so many other settings.

The “me too” campaign as both voice and trigger

When the New York Times broke the story that powerful Hollywood producer Harvey Weinstein has quietly settled numerous sexual harassment claims against him going back decades (per this article by Jodi Kantor and Megan Twohey), it unleashed an ongoing storm of similar allegations against Weinstein and stories of the “casting couch” practices of the filmmaking industry. Not since the 1991 Senate confirmation hearings for Supreme Court nominee Clarence Thomas centering on Anita Hill’s allegations of sexual harassment has this topic been so prominently in the mainstream news.

And now the forces of social media are weighing in, especially with a meme/hashtag campaign of “me too,” whereby (mostly) women are posting these two words on Facebook and other sites to proclaim that they, too, have experienced sexual harassment and abuse. Scrolling through my Facebook newsfeed over the past couple of days has conveyed a powerful message about the frequency and pain of these behaviors.

For some, it hasn’t been a difficult decision to type in “me too” and click “post.” But for many, many others, the “me too” campaign has been a triggering event at the same time it has provided an opportunity to be heard, causing them to relive their own experiences, which in some cases have been deeply traumatic.

There’s more that I want to write about the Harvey Weinstein story, but because it’s still developing, I will wait a bit. For now, however, let’s acknowledge that for many women, the question of whether to post two simple words to their Facebook page or Twitter feed has triggered conflicting emotions about voice, outrage, abuse, and victimization. Their ultimate decision is not ours to judge, either way. But if we care about dignity and equality in the workplace and in society overall, then we must understand why so many are saying “me too.”

Workplace bullying and mobbing: Abuse vs. conflict

image courtesy of clipartfest.com

As I wrote in my previous post, Dr. Maureen Duffy and I are doing a final review of our forthcoming two-volume book set, Workplace Bullying and Mobbing in the United States (ABC-CLIO, 2018), scheduled for publication in December. The process of re-reading 25 chapters featuring the work of over two dozen contributors highlights recurring themes for me. Among others, I keep coming back to this question: In terms of negative workplace interactions, what factors distinguish “conflict” from “abuse”? 

You’ll find differences of opinion on this question among our learned contributors. For me, the distinction between workplace conflict and workplace abuse often boils down to two major factors, namely, (1) the intentions of the parties, and (2) the power relationships between the parties.

If a party’s main intention is to cause harm or distress to another (thus meeting a common legal definition of malice), then the situation is more likely to be an abusive one.

If the power relationships between the parties are significantly uneven due to some combination of internal hierarchy (e.g., supervisor vs. subordinate), numbers (e.g., many vs. one), personality matches (e.g., exploiting someone’s emotional vulnerabilities), and resources (organizational, financial, etc.), then the situation is more likely to be an abusive one.

If one side exhibits malicious intent and exercises a significant power advantage over the other, then the situation is very likely to be an abusive one. The combination of bad intentions and the ability to effectuate them can be overwhelming to the less-advantaged individual.

Here is where we find some of the sharper dividing lines between disrespect and incivility on one hand, and bullying and mobbing on the other. Of course, there are others, including repeated acts of aggression and the greater presence of serious health-harming effects with the latter.

If you’d like an illuminating comparison in terms of social relationships, consider spousal or domestic partnership relationships. It’s one thing for a couple not to get along, perhaps even to the point where the conflict has elevated to frequent disagreements and verbal and non-verbal aggression. It’s quite another for one party to continually subject the other to verbal and/or physical abuse in a one-sided show of aggression. (This illustration is among the reasons why I have long joined with others in believing that workplace bullying is more like domestic abuse than schoolyard bullying.)

Again, I’m simply sharing my thoughts on this topic as an ongoing response to reviewing the forthcoming book volumes. I’m sure that once these volumes are published, I’ll be drawing upon them frequently for more observations and insights.

Dr. Edith Eger’s “The Choice”: On trauma and healing

Over the weekend I made a quick trip to the Bay Area to participate in a conference organized by the Western Institute for Social Research, on whose board I serve. The focus of the conference was on trauma, recovery, and storytelling, and it packed a wallop of heart and wisdom. Among the many highlights was a keynote address by Dr. Edith Eva Eger, a Holocaust survivor, trauma therapist, and genuine international treasure.

“Dr. Edie,” as she is known, survived the Auschwitz and Mauthausen concentration camps as a teenage girl. In her new book, The Choice: Embrace the Possible (2017), she recounts the major events of her life, framed by her experiences during the war. She takes us through the many steps of her recovery and healing, and then to her work as a therapist helping others who have experienced significant trauma in their lives. Her keynote address was a mini-version of the stories shared at greater depth in The Choice.

I was so moved by Dr. Edie’s presentation that I read her book cover-to-cover during the long flight back from San Francisco to Boston. For anyone who is dealing with psychological trauma or otherwise wants to understand more about supporting those who are experiencing it, I cannot recommend this intelligent and deeply humane book too highly. I believe it will be very helpful to those who are recovering from bullying and mobbing at work. 

The Choice may remind some readers of Viktor Frankl’s classic, Man’s Search for Meaning, and with good reason. Frankl, too, survived Auschwitz and wrote about it. Moreover, as a leading therapist he would later befriend and mentor Dr. Edie. This friendship is warmly recounted in her book.

***

I had a chance to talk to Dr. Edie during Saturday’s conference events, and getting to know her was such a gift. During the evening session, I had the intimidating task of immediately following her moving and insightful keynote remarks with my presentation about workplace bullying and mobbing. I confessed my nervousness about comparing the eliminationist instinct that fueled the Holocaust to that manifesting itself on a much smaller scale in workplace abuse situations, especially in the presence of someone who had survived the horrors of Nazi concentration camps. When I finished, Dr. Edie applauded enthusiastically and gave me a nod of approval. Yup, her opinion of my presentation meant so much to me that I looked to her as soon as I was done. Sometimes, connections made during a mere day in someone’s presence can be so profound and good.

Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

***

August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

***

Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

Workplace bullying and mobbing: Toxic systems and the eliminationist mindset

(Drawing by Aaron Maeda, copyright 2016)

Virulent instances of workplace mistreatment often involve an eliminationist intention on the part of the chief aggressor(s). Two years ago I wrote that the eliminationist instinct may express itself in several ways, including workplace bullying and mobbing behaviors. It often reflects a desire not only to eliminate an employee from the workplace, but also to undermine the individual’s livelihood and health even after departure from the organization.

This year I’ve also been thinking a lot about the roles of lead aggressors vs. roles played by other organizational actors in work abuse situations, especially from a systems theory perspective that examines how human roles and interactions culminate in systems that produce certain results. In May I wrote:

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.

These players join to create systems of abuse, sometimes tightly coordinated, other times acting in a sort of auto-pilot mode. Not infrequently, players outside of the workplace are enlisted to help out as well, thereby extending the system beyond the office or plant.

Recently I also speculated whether work abusers represented a “few bad apples” or a terribly bad harvest, suggesting that “(b)ad behaviors are typically enabled, endorsed, and/or empowered by bad organizations.”

So here are my questions for today: When does a whole system basically internalize the eliminationist mindset? When does the organizational toxicity metastasize to the point where most, if not all, relevant actors are now emotionally committed to eliminating the target? What factors and influences create this dynamic, which at this juncture is usually a full-on mobbing? As I wrote in April, such abuse can take on a multi-directional, blitzkrieg approach designed “to disorient, confuse, frighten, weaken, and ultimately disable the target.” 

These thoughts hopefully further the conversation about individual vs. organizational accountability for bullying and mobbing behaviors. As I suggested in February, it really should be about both. In the worst situations that I’ve become familiar with, the net must be cast widely in terms of identifying responsible players, typically implicating the organization as a whole.

Workplace abusers: A few “bad apples” or part of a terribly bad harvest?

Image from todayifoundout.com

In recent weeks, I’ve encountered multiple variations on the “just a few bad apples” excuse/explanation/dodge, meant to assure others that corruption, violence, sexual harassment or assault, or bullying of employees or customers are the acts of a mere handful of miscreants within an organization, or perhaps even a sole rotten one. There’s always going to be a bad apple or two. He was just a bad apple. It’s hard to screen out every bad apple. It’s unfair to define us by a few bad apples. And blah blah blah.

True, the bad apples analogy may sometimes fit the situation. Maybe an organization that tries to do everything right in terms of hiring, supervision, and review finds itself dealing with that rare bad employee who has mistreated others, and somehow the situation got out of hand.

I’ll concede that possibility.

But all too often, when I hear or read of an organizational leader or spokesperson invoking bad apple-speak, I feel like I’m being conned. Bad behaviors are typically enabled, endorsed, and/or empowered by bad organizations. Often it’s clear that the situation suggests a pattern and practice of abuse or wrongdoing. Even in situations where the key abusers are few, many other organizational actors looked the other way or tacitly enabled the mistreatment. And sometimes it’s simply a lie, a cover-up for a whole harvest of bad apples.

Where the bad apples analogy actually fits, frequently it is used to reduce the need for organizational and leadership accountability, as if to say that this unusual occurrence somehow makes the underlying misconduct less serious. Instead, a full-throated apology and promise to make things right would be the stand up thing to do.

 

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