Ellen Cobb’s “Workplace Bullying and Harassment”: A global legal source guide

For those seeking a handy compilation and summary of laws relating to workplace bullying, mobbing, and harassment around the world, Ellen Pinkos Cobb’s Workplace Bullying and Harassment: New Developments in International Law (Routledge, 2017) may be your go-to source. The following is drawn from the book’s online description:

Workplace Bullying and Harassment: New Developments in International Law provides a comprehensive tour around the globe, summarizing relevant legislation and key developments in workplace bullying, harassment, sexual harassment, discrimination, violence, and stress in over 50 countries in Europe, the Asia Pacific region, the Americas region, and the Middle East and Africa.

. . . This book brings together need-to-know information on global workplace bullying and harassment in one place, the first publication of its kind to do so. It will aid those in the fields of labor and employment, human resources management, occupational and industrial health psychology, health and safety, and workplace regulatory compliance stay abreast of laws and developments that these practitioners must be aware of, whether operating nationally or globally. Academics will also benefit. Links to laws and references are provided, enabling further research.

Ellen is a Massachusetts attorney who has been steadily researching laws related to bullying at work, and I’ve had the pleasure of knowing her for many years. She first published this guide independently. After producing several self-published versions, she then secured a contract with a major publisher. I’m delighted that her very useful and comprehensive resource is now more broadly available, and at a relatively affordable price for a book designed for practitioners and scholars.

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 awful necessity of the “business case” against workplace harassment and abuse

The ongoing and very public torrent of stories and accusations of sexual harassment and abuse directed at Hollywood producer Harvey Weinstein has prompted an endless stream of commentaries about sexual harassment in the workplace. For example, the Economist magazine weighed in on the bottom-line business impacts of unchecked sexual harassment:

The victims often suffer depression, anger and humiliation. Firms where harassment happens are eventually harmed, too. Mr Weinstein’s studio may be sued…. The company could even be destroyed by the scandal. Even if one leaves aside all moral arguments—which one should not—failing to deal with harassment is usually bad for business. Firms that tolerate it will lose female talent to rivals that do not, and the market will punish them. The costs of decency are trivial; the rewards to shareholders are large.

This is yet another version of the so-called “business case” against work abuse, in this instance sexual harassment. For those of us who have been addressing workplace bullying and mobbing behaviors, this rap sounds familiar. We are continually urged to make the business case against psychological abuse at work, including articulating its cost impacts and, whenever possible, assigning estimated monetary figures.

I understand that whenever abusive behaviors are prevalent in the workplace, it makes sense to point out the costs to the organization. However, I do so with an underlying slow burn. It means that it’s not enough to show that bullying, mobbing, and harassment can wreak havoc on an individual’s health, livelihood, and overall well being. It means that all too many CEOs, senior executives, and managers won’t take work abuse seriously until they understand the monetary costs to their organizations. 

I’m a pragmatist. If it takes the “business case” against work abuse to get organizational leaders to care, I say let’s make it. But this sure doesn’t say much about the morals, ethics, and empathy of the executives who look the other way unless it hits them in their wallets and profit-and-loss statements. Human suffering alone is not enough for them; money, not decency, is what motivates them to act.

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.”

On racism and bias: Research confirms that Rodgers & Hammerstein got it right

In the aftermath of the Charlottesville, Virginia, white supremacist rally, the Washington Post‘s William Wan and Sarah Kaplan set out to learn about the science behind racism and bias. Here’s an answer from one social psychologist they interviewed:

“In some ways, it’s super simple. People learn to be whatever their society and culture teaches them. We often assume that it takes parents actively teaching their kids, for them to be racist. The truth is that unless parents actively teach kids not to be racists, they will be,” said Jennifer Richeson, a Yale University social psychologist. “This is not the product of some deep-seated, evil heart that is cultivated. It comes from the environment, the air all around us.”

And here’s more from another psychology prof:

“An us-them mentality is unfortunately a really basic part of our biology,” said Eric Knowles, a psychology professor at New York University who studies prejudice and politics. “There’s a lot of evidence that people have an ingrained even evolved tendency toward people who are in our so-called ‘in group.’”

But how we define those groups, and the tendency to draw divisions along racial lines, is social, not biological, he added. “We can draw those lines in a number of ways that society tells us,” he said.

…“The most likely predictor of that is exposure to a kind of ideology,” Knowles said. Most if not all people carry implicit biases and unexamined prejudices, he said, and some may harbor feelings of fear or resentment that they don’t express in public.

These insights are important, and kudos to these reporters for presenting a scientific perspective on the racism that motivated this horrible event. As helpful as this research is, however, it only reaffirms what some folks have known for years: That bigotry and bias are taught and reinforced by society.

In fact, if you want a more pop culture approach to this basic postulate, go back to the classic Rodgers & Hammerstein musical “South Pacific,” which opened on Broadway in 1949 and was later made into a movie in 1958. Set on a South Pacific island during World War II, the show deals with serious issues of race and color and was considered quite controversial for its time. One of the numbers, “You’ve Got To Be Carefully Taught,” is about how people learn racist beliefs and intolerance. Go here or click above for a snippet of the song from the movie version.

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Related note: The Bloomberg/BNA Daily Labor Report interviewed me about the employment law implications of the Charlottesville rally in this piece, “Can You Fire Someone for Attending a Rally of Racists?”

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.

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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. 

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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.

Work, savings, retirement: Generation Jones is getting hammered

If you were born between 1954 and 1965, then you may identify as a member of “Generation Jones,” that large cohort sandwiched between classic Baby Boomers and classic Generation Xers. The thesis is that Gen Jonesers, on average, have had very different life experiences than those of folks in the two iconic groupings. Indeed, with a 1959 birthdate, I am a card-carrying member of Generation Jones, and I have long believed that, on balance, our group is different than the mainstream Boomers with which we are often categorized.

Gen Jonesers now range from their early 50s and early 60s. And currently, this age group is getting hammered by economic conditions and policies, personal financial circumstances, and frequent age discrimination in the workplace.

To some extent, this Generation Jones has been snakebitten by broader events. During the early 1980s, many graduated into a terrible recession that limited entry-level job opportunities. This was also a time when America’s industrial jobs base went into sharp decline (a trend continuing to this day), wages started to flatline (ditto), and employers began eliminating pension plans (ditto again).

Fast forwarding, the Great Recession hit during what should’ve been Gen Jonesers’ strongest earning years, the heart of their 40s and early 50s. Many lost jobs and livelihoods during that time and have struggled to recover. Some have never recovered. Gen Jonesers are now hurtling toward what have been considered traditional retirement years; most are within 10-15 years of that time. But as I have written often on this blog (here, for example), America faces a retirement funding crisis of major proportions.

My own interest in this topic relates to my work on workplace bullying. I’ve witnessed the challenges that face those in middle age who have lost jobs and livelihoods due to bullying, mobbing, and abuse at work. The ongoing specter of age discrimination often undermines their efforts to seek new employment.

These are difficult topics, but they are vitally important, and they should be front and center in our national political and policy debates, even though anyone following the news knows they are not. For those who want to learn and think more, however, I’ll make two suggestions:

First, watch Elizabeth White’s TEDx talk, “Fifty-five, Unemployed, Faking Normal.” It’s an 18-minute reflection on what it means to have lost your job at middle age and to face the financial challenges that can follow. I’ve written about her important work before, and I’m a big fan of her book, Fifty-Five, Unemployed, and Faking Normal: Your Guide to a Better Life (2016). Richard Eisenberg, writing for the Next Avenue blog, previews White’s TEDx talk:

White’s TEDx Talk, filmed earlier this year in Richmond, Va., is a composite of her story and her friends’ — women and men in their 50s who are “faking normal.” By that, White’s talking about people who had good careers and lives until they didn’t. She describes them in the TEDx Talk as people who “entered the uncertain world of formerly and used to be.”

Second, read Elizabeth Olson’s New York Times piece, “Shown the Door, Older Workers Find Bias Hard to Prove,” which explains the legal challenges facing laid off workers who are alleging age discrimination:

Yet, even as the work force has a large number of older employees, one of the principal tools to fight such discrimination, the Age Discrimination in Employment Act — which Congress passed a half-century ago — may not be up to the task, said Laurie A. McCann, a lawyer with AARP Foundation Litigation, which is providing legal counsel to the Wichita plaintiffs.

“Ageism unfortunately remains pervasive in the American work force,” she said. Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.

They were among a total of only 86 workplace discrimination cases litigated in court last year, AARP found. Few cases are taken to court because such complaints are complicated and expensive; it can take a long time to assemble relevant evidence and testimony.

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