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.”

A Labor Day with too few union members

According to the federal Bureau of Labor Statistics, U.S. labor union membership rate is rough half of what it was in 1983, when the government began keeping comparable data:

The union membership rate—the percent of wage and salary workers who were members of unions— was 10.7 percent in 2016, down 0.4 percentage point from 2015, the U.S. Bureau of Labor Statistics reported today. The number of wage and salary workers belonging to unions, at 14.6 million in 2016, declined by 240,000 from 2015. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent, and there were 17.7 million union workers.

If we go back to the 1950s, we see that roughly one third of the American workforce was unionized.

During this stretch of time, giant wage and wealth gaps have opened up and the middle class has been giving way to economic extremes of the top 10-15 percent doing very well and so many others barely hanging on, if that. The accompanying dynamics include virulent, corporate-fueled on-the-floor and political opposition to organized labor. And let’s also acknowledge that too many unions don’t serve their members well and retain leaders who act like the worst CEOs.

The labor movement has been the most effective force in American history for raising wages and benefits to livable, sustainable levels and keeping them there. So long as the union membership rate continues its decline, I don’t have much hope for the fortunes of the average American worker. Hopefully people will wake up and realize that they’ve been sold a bad bill of goods over the past few decades and come to embrace what good unions do for our society.

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.

Disposable workers

This is hard to fathom, but unfortunately the headline pictured above — “A maid begged for help before falling from a window in Kuwait. Her boss made a video instead.” — tells the heart of the story. Avi Selk reports for the Washington Post:

The floor looks clean in this high-rise apartment, seven stories above Kuwait City traffic. Not a smudge in sight on the picture window. On the other side of the glass, the maid is hanging on by one knuckle, screaming.

“Oh crazy, come here,” a woman says casually in Arabic, holding a camera up to the maid.

“Hold on to me! Hold on to me!” the maid yells.

Instead, the woman steps back. The maid’s grip finally slips, and she lands in a cloud of dust, many stories below.

The maid — an Ethiopian who had been working in the country for several years, according to the Kuwait Times — survived the fall. The videographer, her employer, was arrested last week on a charge of failing to help the worker.

Selk adds that more instances of domestic workers falling off of buildings have been reported. Human rights advocates are sounding alarms about this horrible incident and others against the background of a system of servitude known as kafala, whereby foreign workers surrender basic labor rights in return for work visas.

The spectrum of workplace mistreatment runs from lighter instances of intentional incivility all the way to slavery and torture. This event in Kuwait, and references to the policy of kafala, remind us that forms of abuse tending toward, and falling squarely within, the latter still exist in this world.

Enter therapeutic jurisprudence

These concerns also raise the fundamental importance of bringing dignity at work into therapeutic jurisprudence (“TJ”), a school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of laws, legal processes, and legal institutions.

As close readers of this blog know, I have been active in the TJ movement for many years, to the point of regarding it as my primary lens for examining law and policy. In fact, I’m part of a wonderful group of law teachers, lawyers, and judges who are forming a new international, non-profit organization dedicated to advancing therapeutic jurisprudence on a global scale. We will be launching this new entity at the biennial International Congress on Law and Mental Health, to be held this year in Prague, Czech Republic.

To date, much TJ activity has been concentrated in legal areas such as mental health and disability law, criminal law, dispute resolution and the administration of justice, and family law. Laws and policies relating to work, workers, and workplaces, however, have not received as much attention. Along with other folks dedicated to advancing dignity at work, I look forward to playing an energetic role in changing that state of affairs.

You see, it’s important to remember that individual incidents of worker abuse, including this one in Kuwait, are enabled or validated by policies such as kafala, thus melding the mistreatment with the tacit approval of law. Changing laws does not necessarily change individual behavior, but it creates enforceable norms that can inform people’s decisions about how to treat others.

Gaslighting at work

Gaslighting is a form of deliberate manipulation intended to disorient, confuse, and frighten those on the receiving end. Many discussions about gaslighting occur in reference to personal relationships, often in the context of domestic or partner abuse. However, gaslighting can occur in other settings as well, including workplaces. In fact, I predict that we’ll be hearing a lot more about gaslighting at work during the years to come, and I’d like to survey that waterfront.

Despite growing awareness of the term and its underlying behaviors, the idea of gaslighting is so rooted in pop psychology that there are no “official” definitions from more authoritative psychological sources. Indeed, the best definition that I’ve found comes from Wikipedia, a distinctly non-academic source:

…a form of manipulation that seeks to sow seeds of doubt in a targeted individual or members of a group, hoping to make targets question their own memory, perception, and sanity. Using persistent denial, misdirection, contradiction, and lying, it attempts to destabilize the target and delegitimize the target’s belief.

Dr. Martha Stout describes the origins of the term in her excellent book, The Sociopath Next Door (2005):

In 1944, George Cukor directed a psychological thriller entitled Gaslight, in which a beautiful young woman, played by Ingrid Bergman, is made to feel she is going insane. Her fear that she is losing her mind is inflicted on her systematically by Charles Boyer, who plays her evil but charming husband. Among a number of other dirty tricks, Boyer arranges for Bergman to hear sounds in the attic when he absent, and for the gaslight to dim by itself, in a menacing house where her aunt was mysteriously murdered years before.

Gaslighting steps

In a Psychology Today blog post, Dr. Robin Stern, author of The Gaslight Effect (2007), offers a list of questions to determine whether someone is dancing what she calls the “Gaslight Tango.” Here are several that are especially relevant to the workplace:

  • “You are constantly second-guessing yourself.”
  • “You ask yourself, ‘Am I too sensitive?’ a dozen times a day.”
  • “You often feel confused and even crazy at work.”
  • “You have the sense that you used to be a very different person – more confident, more fun-loving, more relaxed.”

“Crazy at work.” Gaslighting can be, and often is, crazy making.

Gaslighting and workplace bullying & mobbing

Gaslighting usually involves a power imbalance grounded in formal hierarchy, interpersonal dynamics, or both. This makes the workplace a prime host for such behaviors, with bullying a frequent variation. As I wrote several years ago in one of this blog’s most popular posts:

Specific workplace bullying tactics can run from the obvious and transparent to the remarkably deceitful and calculated. Among the most treacherous of the latter is “gaslighting”….Gaslighting at work can range from orchestrated, manipulative aggressor-to-target behaviors, to HR officers expressing faux incredulity in response to claims of abusive mistreatment.

My hypothesis is that a large percentage of the most virulent, targeted bullying and mobbing campaigns involve serious amounts of gaslighting.

Management gaslighting in union organizing campaigns

Gaslighting is often used by employers to oppose labor unions. They use deceptive messaging to get workers to doubt their common sense:

  • “We’re all in this together, so do you really want a union to interfere with that relationship?” — If everyone is truly in this together, then how has the pay gap between high-level executives and rank-and-file workers become so wide and deep over the past few decades? These vast divides exist in most organizations that oppose unions.
  • “If you vote for a union, then you lose your individual voice” — This dubious claim assumes that the individual worker had a meaningful voice to begin with! (Imagine an entry-level administrative assistant or retail store worker approaching their manager with a request to enter into negotiations about their pay and benefits.) On balance, unionized workers have a lot more legal and contract protections for expressing work-related concerns than do non-union workers.
  • “We can’t control what happens if a union is voted in” — This is a classic gambit meant to plant confusion and fear of the unknown about the consequences of a successful union election.

Gaslighting and managerial pronouncements

We may think of gaslighting as being targeted at individuals, but sometimes it’s a group experience on the receiving end.

When an executive, manager, or senior administrator invokes the term “transparency” (or some variant) and it feels like they’re merely being transparent about being opaque, that’s potential gaslighting. When human resources announces changes in employee relations policies that offer more “flexibility,” “freedom to choose,” or “streamlining” that will advantage all, when in reality it means lower or fewer benefits and/or more hassle, that’s potential gaslighting.

If your response upon hearing such pronouncements is along the lines of “hold it, this makes no sense” or “do they really think I’m that stupid?!,” well, then, look for the gaslight.

Intentional, but not necessarily maliciously so

Yes, gaslighting is often employed to intimidate, confuse, frighten and/or diminish its target. In this way it is a significant, malicious, dignity-denying abuse of power.

However, in a smaller share of situations it may be used to fight back against injustice, mistreatment, or abuse, to basically keep the other side guessing. Why a smaller share? Because gaslighting does not come naturally to most of us. “Thinking like a gaslighter” can mean having to think like a psychopath, sociopath, or severe narcissist. It’s not a pleasant place to be.

What gaslighting is not

Of course, now that gaslighting has become a more popular term, it is inevitable that it will be misused or confused with other behaviors. Over the years, I’ve read and heard about claims of gaslighting that do not appear to be the case. Gaslighting is generally not synonymous with:

  • An honest disagreement, even an intense or heated one;
  • An argument that includes misunderstandings, sometimes on both ends;
  • Individuals being obstinate or stubborn;
  • Erroneous, even confusing, orders and instructions;
  • One side or multiple sides talking past, over, or through each other;
  • “White lies” meant to mask a more painful or difficult truth;
  • Instances of incivility; or,
  • An incoherent explanation.

Of course, gaslighting could become a part of these interactions, but it is not their equivalent.

A gray area is when people are, well, “messing with each other’s heads.” This can occur in dysfunctional relationships of all kinds. I’ll leave it to readers to make a call on this. (As I see it, the devil rests in the details.)

At the worst end of the spectrum

Like any other form of manipulation, instances of gaslighting are not equal in frequency and severity. The worst cases, however, are truly disabling and debilitating, the products of scary minds capable of inflicting serious psychological abuse. I hope that gaslighting will gain greater attention as we continue to address behaviors in our society worth preventing and stopping.

Time wasters from top management

(image courtesy of clipart-library.com)

Consultant Eric Garton, writing for the Harvard Business Review, posits that various time killing practices imposed from on high undermine employee morale and productivity:

Unproductive routines, corporate bureaucracy, and “administrivia” kill ambition and sap energy for far too many employees. That’s demoralizing for employees, and a waste for companies, which badly need the full energy and commitment of all their workers.

These “practices, procedures, and structures” include “too much process, too many meetings, meaningless goals, and time wasted on work that no one will ever care about.”

Garton may be writing with mostly the corporate sector in mind, but I can readily attest that these same energy-sapping practices are rife in certain academic institutions as well. They appear in the forms of excessive committees, task forces, working groups, and — worst of all — strategic planning initiatives, replete with seemingly endless meetings and online surveys about this and that. Colleges and universities that lard up on administrators and consultants are the worst of all when it comes to this.

In looking for solutions, Garton offers what he calls his “3 R’s”:

  • refocus on strategic priorities
  • reset the budgets
  • redesign the operating model

Hmm, I have to say that the “3 R’s” sound a lot like consultant jargon replacing corporate jargon. Instead, I’d suggest creating workplace cultures in which people are valued, empowered, and treated with fairness and dignity. If you start with that and go from there, then you’re on your way toward building an organization with high morale and productivity. Plug that agenda into your “strategic priorities,” budgets, and “operating model” if you must (and I hope you don’t), but keep your focus on what truly fosters healthy and productive workplaces.

Workplace bullying and mobbing: Individual vs. organizational accountability

image courtesy of clipartfest.com

image courtesy of clipartfest.com

So here’s my question for today: When you think about accountability for workplace bullying and mobbing, do you think more about individual aggressors or about the organizations that hire and keep them on the payroll?

Of course, the pat response — in fact, the right one, I’d argue — is both. But I’d submit that the calculus is not uniform, and that the perch from where we sit may determine our personal answers. Here are a few of my observations on this question:

  • Bullying and mobbing behaviors are typically targeted and personalized. Sometimes the motivations for the abuse are transparent. But often they are not. Furthermore, they may not be rational, in that the underlying reason(s) for the abuse can be explained in a way that easily makes sense. Figuring out motivations sometimes can be a challenge for a targeted worker, adding to the confusion and bewilderment of the experience and sharpening the focus on specific aggressor(s).
  • Nevertheless, as intensely interpersonal as these behaviors may become, they usually cannot flourish without organizational sponsorship, enabling, or, at the very least, indifference. This applies specially to mobbing, which requires multiple players, often aided by institutional mechanisms.
  • For an individual targeted by bullying or mobbing, the natural focus is on the closest abusers and tormenters. However, the target often recognizes the organizational dynamic when reaching out for help and finding that little or no genuine assistance is available.
  • If we want to prevent and stop bullying and mobbing at work, the first view should be organizational and systems-based, looking especially at top leadership and workplace culture. Bullying and mobbing rarely thrive at organizations committed to treating their employees with a baseline of dignity and to hiring workers who share that commitment.

For those interested in the legal side, the anti-bullying Healthy Workplace Bill that I’ve authored recognizes both organizational and individual responsibility for creating abusive work environments. Under my template version of the legislation, those who have been subjected to severe workplace bullying may pursue claims against both their employer and the individual tormenters. Furthermore, in recognition of the overall role played by employers, the legislation includes liability-reducing incentives for employers that act preventively and responsively toward bullying behaviors.

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