Trauma-Informed Legal Perspectives on Workplace Bullying and Mobbing

At next week’s Work, Stress and Health Conference in Minneapolis, Minnesota, I’ll be presenting a short paper, “Trauma-Informed Legal Perspectives on Workplace Bullying and Mobbing,” on a panel with Drs. Maureen Duffy and Gary Namie. I’m happy to include the paper in its substantial entirety here. Regular readers of this blog will find a lot of material that I’ve already included in various chunks here, but I hope it will be interesting and informative nonetheless.

Introduction

Emerging insights about psychological trauma and post-traumatic stress disorder are informing our understanding of legal disputes involving workplace bullying and mobbing, as well as suggesting how trauma-informed employment lawyers, managers, and human resources personnel can be more effective in dealing with legal situations involving abusive work environments. Among other things, neuroscientific discoveries concerning psychological trauma carry potentially great significance for legal and benefit claims involving workplace bullying and mobbing.

Linking Workplace Bullying and Mobbing to Psychological Trauma

Workplace mobbing researchers Leymann & Gustafsson (1996) associated severe work abuse with Post Traumatic Stress Disorder early on in their pioneering work. Since then, scholars, mental health providers, and subject matter experts on workplace bullying and mobbing have made those connections as well (Hogh, Mikkelsen, and Hansen, 2011, pp. 115-17).

Targets of bullying and mobbing have described the trauma of work abuse through narrative descriptions of their experiences. For example, Tracy, Lutgen-Sandvik, and Alberts (2006) interviewed self-identified targets of work abuse. Targets’ accounts were “saturated” with references to “beating, physical abuse, and death” (Tracy, Lutgen-Sandvik, and Alberts, 2006, p. 160). The abuse process was described alternatively as a “game or battle,” a “nightmare,” “water torture,” and a “noxious substance” (Tracy, Lutgen-Sandvik, and Alberts, 2006, p. 159).

Emerging Neuroscientific Insights

In his 2014 book The Body Keeps the Score, trauma expert Dr. Bessel van der Kolk discusses research on how traumatic experiences impact the brain, which may include sharp cognitive impairments that undermine an individual’s ability to present information in an ordered manner (van der Kolk, 2014). Functional magnetic resonance imaging (fMRI) shows how psychological trauma activates parts of the brain associated with emotions (the so-called right side), while shutting down parts of the brain associated with speech and logical thinking (left side). These effects can be replicated well after the original traumatic event(s). Accordingly, an individual experiencing psychological trauma may be able to share emotions and impressions about the experience, while encountering great difficulty in setting out the narrative story behind it. Dr. van der Kolk calls it “the speechless horror” (van der Kolk, 2014, p. 43).

Emerging Significance for Employment Law and Legal Practice

These developing insights and discoveries concerning psychological trauma carry potentially great significance for legal and benefit claims involving workplace bullying and mobbing. They also raise potential opportunities and challenges for employment lawyers on both sides of the aisle who are dealing with alleged instances of bullying and mobbing.

Challenges

Mainstreaming fMRI technology – Although fMRI technology is used increasingly in research, its use in clinical settings lags far behind. More significantly for this discussion, its reliability as legal evidence has not yet been widely established, and in some instances has been questioned by courts.

Causation and before/after documentation – Most legal claims and some employee benefits (especially workers’ compensation) require sufficient evidence of causation between the legally significant workplace events and the complained-of harm or injury. In cases where PTSD is part of a claim for damages or worker benefits, the plaintiff or claimant may have to establish factual causation. Thus, if fMRI technology becomes significant in this realm, it may be necessary to have both “before” and “after” scans in order to show impairment due to work-related psychological trauma.

DSM-5 PTSD requirements – In the current edition of the DSM, the list of requisite predicate stressor events for a PTSD diagnosis continues to exclude many instances of non-physical bullying or mobbing: “death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence.”

Potential Applications

Legal client counseling – Employment lawyers who gain a basic understanding of psychological trauma will be in a better position to talk to, interview, and counsel clients who are experiencing it.

Workplace anti-bullying legislation – Currently there is no general, direct legal claim for workplace bullying in the U.S. However, scientific evidence of how trauma can impair brain functioning supports passage of the Healthy Workplace Bill, model legislation I have authored that provides bullying targets a private legal claim for damages and creates legal incentives for employers to prevent and respond to bullying behaviors (Yamada, 2004; Yamada, 2013).

Workplace bullying-related litigation — Some bullying-related mistreatment may be legally actionable under employment discrimination laws, anti-retaliation and whistleblowing statutes, tort (personal injury) causes of action, and collective bargaining laws (Yamada, 2000; Yamada, 2013). Whenever these legal claims are raised in connection with bullying and mobbing situations, evidence of psychological trauma is relevant to prove emotional distress, health care-related damages, and potential decline in on-the-job productivity.

Workplace safety and health laws — Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, a covered employer must provide employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Brain imaging eventually may help to document the serious harm wrought by bullying and mobbing and thus bring it within the General Duty Clause of OSHA.

Workers’ compensation laws – Workers’ compensation laws provide benefits to workers who are injured in the course of and arising out of employment. The easiest type of WC claim is a physical injury leading to a physical impairment, such as a worker who severely injures an arm on the job and thus experiences a significant physical impairment as a result. The hardest type of WC claim is the so-called “mental-mental” scenario, e.g., non-physical forms of sexual harassment, bullying, etc., leading to mental impairments. Evidence of impaired brain functioning associated with trauma can help to buttress WC claims associated with bullying and mobbing.

 References

Hogh, A., Mikkelsen, E. G., & Hansen, A. M. (2011). Individual consequences of workplace bullying/mobbing. Bullying and harassment in the workplace: Developments in research, theory, and practice. (Einarsen, S., Hoel, H., Zapf, D., & Cooper, C., eds., Boca Raton, FL: CRC Press).

Leymann, H., & Gustafsson, A. (1996). Mobbing at work and the development of post-traumatic stress disorders. European Journal of Work and Organizational Psychology, 5(2), 251-275.

Tracy, S. J., Lutgen-Sandvik, P. & Alberts, J.K. (2006). Nightmares, demons and slaves: Exploring the painful metaphors of workplace bullying. Management Communication Quarterly, 20, 148-185.

Van der Kolk, B. (2014). The body keeps the score: Brain, mind, and body in the healing of trauma. (New York, NY: Penguin).

Yamada, D. C. (2000). The phenomenon of “workplace bullying” and the need for status-blind hostile work environment protection. Georgetown Law Journal, 88(3), 475-536.

Yamada, D. C. (2004). Crafting a legislative response to workplace bullying. Employee Rights and Employment Policy Journal, 8(2), 475-521.

Yamada, D. C. (2013). Emerging American legal responses to workplace bullying. Temple Political & Civil Rights Law Review, 22(2), 329-354.

The daily commute as an element of job satisfaction (or lack thereof)

Do you factor in a daily commuting experience as part of your overall job satisfaction? If you don’t, then maybe you should.

Shana Lebowitz writes for Business Insider on “how most of us underestimate just how miserable commuting can make us.” She cites research published in the Harvard Business Review:

That’s according to a team of researchers writing in The Harvard Business Review. They cite multiple studies that suggest commuting can be more stressful than actually working, and that the longer your commute, the less satisfied you may be with your job and with life in general.

Her conclusion? “Reduce your commute. As in, move closer to your office or find a job closer to your home.”

Urban commuter here

My commuting-to-work experiences have been exclusively by city subways. (I haven’t owned a car since 1982!) I’m more than willing to exchange suburban home space for the experience of city living.

After graduating from law school, for years I made weekday subway trips from Park Slope, Brooklyn to lower Manhattan. My love affair with New York was still in full flower, so I dealt with the frustrations, delays, and packed subway cars with (somewhat) stoic patience. The average door-to-door commuting time was 40-50 minutes, but it often felt much longer because of the miserable rush hour experience. When I look back at those years, I’m surprised there weren’t more displays of maniacal acting out by otherwise mature, sensible people!

For the past fourteen years, I’ve been doing subway trips from Jamaica Plain, Boston, to downtown Boston, where my university is located. The average commuting time is about 30-40 minutes, made much easier by the fact that a flexible work schedule allows me to largely avoid rush hour traveling. The biggest difference between this and my NYC subway experience is that I can usually get a seat on the train, which for me translates into opportunities to read a book, magazine, or newspaper.

Economic class impacts

However, I’m also cognizant of the fact that I’ve had some choices in this regard. In Greater Boston, for example, housing costs have driven more and more people into outer ring suburbs and beyond. Their lengthier commutes are often imposed upon them. Similar patterns are evident in other popular metro areas as well.

Of course, others choose to live in suburban areas, even if it means a longer work commute. Personally, I can’t understand the appeal of suburban living, but many of my friends feel completely the opposite way! In any event, smoother commutes — whether by car or by train — would be good for everyone. If we use this research data to inform how we can improve the quality of lives overall, then we should invest in transportation systems that ease commuting experiences to and from urban centers.

Harvard study: The key to living a meaningful and happy life

So it took a bunch of smart people at Harvard to identify the single most important factor toward leading a meaningful and happy life: Good relationships.

Melanie Curtin reports for Inc. on findings from the multi-generational Harvard Study of Adult Development, spanning some 75 years:

  • “According to Robert Waldinger, director of the Harvard Study of Adult Development, one thing surpasses all the rest in terms of importance: ‘The clearest message that we get from this 75-year study is this: Good relationships keep us happier and healthier. Period.'”
  • “Specifically, the study demonstrates that having someone to rely on helps your nervous system relax, helps your brain stay healthier for longer, and reduces both emotional as well as physical pain.”
  • “The data is also very clear that those who feel lonely are more likely to see their physical health decline earlier and die younger.”
  • “‘It’s not just the number of friends you have, and it’s not whether or not you’re in a committed relationship,’ says Waldinger. ‘It’s the quality of your close relationships that matters.'”

Okay, there are big qualifiers here in terms of the study participants. The 75-year study is limited to white men from two cohorts. Obviously it’s not the most diverse of participant pools. However, the longitudinal nature of the study is unique and makes the findings worthy of our attention. (Those who want to read more about the Harvard study may go to its website.)

Piece of cake, right?

So, if you want to live a good life, then build good relationships. It’s that easy!

Or maybe not. You see, other studies, analyses, and commentaries are telling us that loneliness is a huge problem in our society and that the absence of quality relationships in individual lives is adding up to a big public health issue.

Billy Baker, a soon-to-be-40-year-old feature writer for the Boston Globe Magazine, opens his recent piece on loneliness and middle aged men:

I’d been summoned to an editor’s office at the Globe Magazine with the old “We have a story we think you’d be perfect for.” This is how editors talk when they’re about to con you into doing something you don’t want to do.

Here was the pitch: We want you to write about how middle-aged men have no friends.

Excuse me? I have plenty of friends. Are you calling me a loser? You are.

The editor told me there was all sorts of evidence out there about how men, as they age, let their close friendships lapse, and that that fact can cause all sorts of problems and have a terrible impact on their health.

Baker then appeals to some expert testimony:

Health writer Emily Gurnon, writing last year for Next Avenue, cites a major 2016 analysis indicating more of the same:

You may have heard that loneliness is hazardous to your health — and can even lead to an early death. Now, an analysis of 23 scientific studies gives us numbers that reveal just how sick it can really make you.

People with “poor social relationships” had a 29 percent higher risk of newly diagnosed heart disease and a 32 percent higher risk of stroke, according to the study, published July 1 in the British journal Heart.

That puts loneliness and social isolation on par with other known risk factors for cardiovascular disease, such as anxiety and job strain, the researchers said. And it exceeds the risk posed by physical inactivity and obesity, said lead researcher Nicole Valtorta, of the Department of Health Sciences, University of York, England.

Relationships and work

The modern workplace is an incubator for social relationships of all kinds, ranging from casual friendships to romantic ties. When work is good and so are the people you’re working with, the possibilities for positive relationships are considerable.

But what happens when things at work aren’t so good, or they disintegrate? What happens when, say, some type of workplace mistreatment enters the picture?

In such situations, the quality of relationships may suffer greatly. When someone is experiencing a form of work abuse such as sexual harassment, bullying, or mobbing, supposed friends may abandon or distance themselves from the targeted individual or otherwise dive for cover, fearful for their own job security.

My very generic advice is that we shouldn’t base all of our friendships in the workplace. But it’s not easy to engineer where our friends come from; so many factors are at play.

Furthermore, at times I have not always practiced what I just preached. For example, when I was a young Legal Aid lawyer, we socialized together all the time. Currently, however, most of my friends come from outside my place of employment. Some happen to be professors and lawyers, but many are not. Overall, they hail from many different walks of life, and I am grateful for that.

Now that I am solidly into my middle years, these research findings about the quality of life being strongly shaped by our relationships resonate significantly with me. In terms of lessons, this means being more intentional about this important aspect of our lives, no small task when so many other priorities compete with it.

Workplace bullying: Acknowledging grief

Catching my attention this week was an essay by religion professor Jacqueline Bussie (Concordia College, Minnesota) on the experience of grief. Titled “On Becoming Grief Outlaws” and published in The Cresset (the journal of Valparaiso University in Indiana, my undergraduate school), the piece questions how our popular culture urges us to internalize our grief rather than to express it openly. Bussie herself did this when her mother suffered with Alzheimer’s:

For a long time, I extradited my grief underground. I didn’t want to be a Debbie Downer. I didn’t want to live in the jail of other people’s judgment (especially the colleagues, acquaintances, and church folks who thought I should “move on,” “get over it already,” accept “God’s plan,” and “not grieve as one without hope”).

But the life of lies and fake Barbie smiles wore me out. Eventually, I let grief back into its home country—my heart—and let my heart back on to my sleeve.

Now, Bussie is calling upon us to bring grief out of the closet:

As a theologian, teacher, and person of faith, I want us to talk about the hard stuff. I want us to air all the dirty laundry we’re taught never to air—questions without answers, anger at God, scars that cause us shame, doubt that wrestles us to the ground, sorrow we just can’t shake. All of it.

Work abuse and grief

Research studies and seemingly endless numbers of terrible stories have taught us that those who experience workplace bullying and mobbing can lose a lot, especially:

  • Jobs, careers, and livelihoods;
  • Health and well being;
  • Family and friendship ties;
  • Financial stability; and,
  • Reputations and standing in a community.

It is not unusual for someone to lose all of these things as the culmination of an extended campaign of bullying or mobbing.

We typically don’t associate grieving with losses that might blithely be tagged as “work-related,” but in this context (among others), it’s important that we do so. Work abuse exacts a significant toll on its targets. The sense of loss can be deeply palpable. Grief is an understandable response.

Healing, recovery, and renewal

We need to acknowledge grief, but we also cannot let it win. Yes, I know that’s a competitive sounding statement about an emotion that has nothing to do with conventional notions of victory and defeat.

It’s just that I want us to find ways to help people heal, recover, and renew after such terrible losses. There is no singular path toward this better place, but we need to recognize that many must overcome (or at least negotiate with) their grief in order to reach it.

For some, this time of year marks a holiday celebrating rebirth; for others, it’s about a holiday commemorating liberation. My own faith is non-denominational, but I’m happy if we borrow from these faith traditions to count rebirth and liberation from grief as worthy objectives for helping those who have been savaged at their workplaces.

How insights on abusive relationships inform our understanding of workplace bullying and mobbing

A compelling 2016 Thought Catalog piece by Shahida Arabi on manipulative, diversionary tactics in abusive relationships periodically makes the social media rounds among supporters of the workplace anti-bullying movement, prompting me to consider how such insights inform our understanding of psychological abuse at work.

Titled “20 Diversion Tactics Highly Manipulative Narcissists, Sociopaths And Psychopaths Use To Silence You,” the article sets out and explains these tactics in chilling detail. From this list, these are among the tactics most relevant to bullying and mobbing situations:

  • “Gaslighting”
  • “Nonsensical conversations from hell”
  • “Nitpicking and moving the goal posts”
  • “Changing the subject to evade accountability”
  • “Covert and overt threats”
  • “Smear campaigns and stalking”
  • “Triangulation”
  • “Control”

Yes, we can learn a lot about abusive work situations from examinations of toxic relationships. However, lest we blithely assume that the carryover is seamless, I think it’s worth raising at least three caveats in applying these insights:

First, a close focus on interpersonal dynamics should not divert us from looking deeply at organizational cultures. Work abuse typically occurs with institutional sponsorship or ratification. It seldom thrives without being enabled or empowered by the organization’s leadership and practiced values.

Second, work relationships are rarely as ongoing, intense, and intimate as interpersonal relationships. Thus, it may be harder, or take longer, to get an accurate read on a situation. This is especially the case in terms of tagging individuals with labels such as psychopath, sociopath, or narcissist. Surely these people exist in the workplace — I’ve seen and heard of too many examples to say otherwise. But unless you’re working up close and personal with someone for days and weeks on end, it may take a while for their actions to become clarifying from a psychological standpoint.

Third, especially if the abuser is in a superior position on the organizational chart (underscore that if they are your direct boss), it may be much harder to get a read on what’s happening than doing so in an interpersonal relationship. Don’t get me wrong — abusers can be very effective at cloaking their activities in personal situations as well — but in the workplace, these actions can be diffuse and multidirectional, with less access (for the target) to the abuser’s communications network.

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 involves 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.

Types of workplace bullying and potential legal protections in the U.S.

Last year, counselor Rosemary K.M. Sword and noted psychologist Philip Zimbardo wrote up a nice little summary about the types of bullying that one might encounter in our society, including workplaces, for their Psychology Today blog, Time CureI’d like to take a quick look at those categories and then briefly discuss what potential legal protections may be available in cases of bullying at work.

Sword and Zimbardo identified six basic categories of bullying, while recognizing that these forms may overlap:

  • “Physical Bullying” covers “physical actions to gain power and control over their targets.”
  • “Verbal Bullying” uses “words, statements and name-calling to gain power and control over a target.”
  • “Prejudicial Bullying” is grounded in “prejudices people have toward people of different races, religions or sexual orientation.”
  • “Relational Aggression” refers to “a sneaky, insidious type of bullying that manifests as social manipulation.”
  • “Cyberbullying” involves the use of “the internet, cell phones or other technology to harass, threaten, embarrass or target another person.”
  • “Sexual Bullying” involves “repeated, harmful and humiliating actions – sexual name-calling, crude comments, vulgar gestures, uninvited touching or sexual propositioning – that target a person sexually.”

Sword and Zimbardo offer further explanations for each category; I suggest reading the complete post for the full profiles.

Their solutions emphasize responses for helping children who have been bullied. There’s less that applies to adult targets. However, their blog is primarily about “(n)ew approaches to overcoming PTSD, depression, and anxiety,” so it may be of general interest to readers here. (By the way, Dr. Zimbardo may be especially familiar to some readers for his book The Lucifer Effect: Understanding How Good People Turn Evil.)

Legal and liability perspectives

In the context of workplace bullying, some categories are more relevant than others in terms of potential legal protections, employee benefits, and employer liability in the U.S. Here is a very brief summary, with my usual disclaimer that it should not be considered or relied upon as legal advice:

Prejudicial bullying and sexual bullying are clearly the most obvious candidates for legal intervention, as they directly implicate employment discrimination laws. However, workers still need to prove that the bullying was motivated by their sex, race, or some other characteristic covered by these laws.

Physical bullying that causes injury may qualify a target for workers’ compensation and, in some instances, open doors to tort claims such as assault and battery against the aggressors.

With cyberbullying, much depends on the content. Obviously, if it involves, say, sexual harassment, then legal protections may apply. But generic bullying may escape legal responsibility.

Verbal bullying that causes disabling emotional distress may qualify a targeted workers for workers’ compensation and, in some cases, create tort liability for individual aggressors for claims such as intentional infliction of emotional distress.

Relational aggression, which sometimes delivers the hardest punches to emotional well being and reputation, unfortunately presents the least in terms of potential legal protections, due largely to its often complicated and insidious nature. Unpacking behaviors such as sabotage, defamation, and deliberate undermining is not easy.

Two other points:

First, if an employee handbook covers generic bullying and harassment, workers may have a contractual right to raise complaints about such mistreatment and to seek relief.

Second, an employee covered by a union-secured collective bargaining agreement may find in it provisions that relate to bullying in the form of unfair or abusive management practices.

Obviously the legal situation in America is far from ideal. Enactment of the proposed Healthy Workplace Bill will fill in many of these gaps, but until that day comes, many forms of severe bullying at work will continue to be beyond the reach of the legal system.

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