Briefing Memo on the Healthy Workplace Bill

After a bit of a quiet period during the heart of the pandemic, various state legislatures are showing renewed interest in the anti-bullying Healthy Workplace Bill. Perhaps it’s the growing attention being accorded to toxic workplaces, or maybe it’s a sign that our elected officials are not as consumed with the challenges posed by the pandemic. (It’s likely both!)

I’ll be discussing more details during the months to come, but for now I wanted to share with you a briefing memo I put together about the Healthy Workplace Bill generally. It’s adapted from written testimonies that I’ve submitted to specific state legislatures. If you’d like to access a copy, please go here for a free download.

In addition, I made a pdf of a Dec. 2021 feature article in the ABA Journal, membership magazine of the American Bar Association, featuring my work on workplace bullying and related contributions to the field of therapeutic jurisprudence. Amanda Robert wrote the piece as part of the ABA Journal‘s “Members Who Inspire” series. Please go here for a free download of that article.

Podcast episode: On workplace bullying, therapeutic jurisprudence, pizza, etc.

My law school has a faculty podcast series designed to introduce students and others to what we’re doing. Here’s my podcast episode, recorded late last fall and now online. I talk about workplace bullying, therapeutic jurisprudence, work & the pandemic, gaslighting, classes I teach, respond to some personal Q&As about my favorite food, a recommended book, etc., and close with some advice. It’s a quick 18 minutes. To access the recording, go here.

Healthy Workplace Bill reintroduced in Massachusetts legislature

I’m happy to share that here in Massachusetts, the anti-bullying Healthy Workplace Bill (HWB) has been reintroduced in the new, 2023-24 session of the Massachusetts legislature. We are delighted that Sen. Paul Feeney (D-Bristol & Norfolk), a stalwart voice for workers, is again the lead sponsor.

The HWB permits targets of severe workplace bullying to seek damages in court and creates liability-reducing incentives for employers to act preventively and responsively towards bullying behaviors at work.

Currently, the HWB (link here) is designated as Senate Docket No. 712 (SD.712). Later on, it will be given a bill number.

If you would like to see workplace bullying protections become a reality in Massachusetts, then please contact your state representative and state senator and urge them to co-sponsor the bill. If you do not know the name of your representative or senator, then you may click here to find out.

Changes in the newly-filed bill

The newly-filed HWB contains some modest changes that I have made in the template version of the bill, in response to ongoing conversations with employment lawyers and employee advocates. Most significantly, it removes a requirement of showing intent to cause harm or distress to the targeted employee. Instead, a plaintiff must show “intentional acts, omissions, or both, that a reasonable person would find abusive.” This remains consistent with an understanding that targeted, health-harming bullying — the abusive mistreatment that this bill seeks to address — is not due to accidental or unthinking behavior.

In addition, the new bill makes some minor changes to enable recovery of emotional distress damages even when the bullying has not culminated in a tangible employment decision, such as a termination or demotion.

Fair-minded legislation

That said, this version of the HWB still allows us to honestly represent to employers that this carefully-crafted bill does not legally micro-manage the workplace. Equally important, it does not set the bar to recovery so low that it can be easily misused by workplace bullies to sue their targets, or enable lawsuits and threats of lawsuits for lower-level incivilities or disagreements. Alternative proposals that are being touted by others would throw those doors wide open.

Indeed, in an era where voices from the extreme ends of the spectrum are sometimes the loudest, advocating for balanced, fair-minded solutions can be challenging. In this realm, doing nothing is not acceptable. In the U.S., workplace bullying continues to cause enormous harm to employees and employers alike, without any legal check. We need to address this void in our current employment laws. On the other hand, allowing lawsuits for everyday arguments, differences of opinion, and unwanted work assignments would create significant chaos in our workplaces.

It’s time for workplace bullying to become an unlawful employment practice. The Healthy Workplace Bill remains the best option toward that end.

Watch and learn: Video recordings of 2022 programs

 

Hello dear readers, I’m linking below video recordings of several programs in which I participated during 2022. I hope you’ll find something of interest!

• “Bullying and Incivility in the Academic Workplace” (March 2022) (link here) — I gave a presentation about “Bullying and Incivility in the Academic Workplace” to the Northeastern University College of Science in Boston, as part of a series on “Disrupting Academic Bullying.” I first cover bullying, mobbing, and incivility generally, then I examine these behaviors in academic workplaces.
• “Creating Healthy Workplaces Through Legislation” (April 2022) (link here) — At a conference hosted by the U.S. Department of the Navy and Howard University, I was invited to participate in a panel discussion on “Fostering Professional Climates and Cultures Through Accountability.” The conference was the 2022 “National Discussion on Sexual Assault and Sexual Harassment at America’s Colleges, Universities and Service Academies.” I joined Rear Admiral Rebecca Patterson, Keetah Salazar-Thompson, and Kelley Bonner on this panel. My brief handout for the conference is posted here.
• “The WBI Story: Drs. Ruth & Gary Namie” (July 2022) (link here) — I had the privilege of interviewing Drs. Ruth and Gary Namie, co-founders of the Workplace Bullying Institute and long-time colleagues and friends, about the history of their pioneering work to address workplace bullying. This program was part of Gary’s Workplace Bullying Podcast series.
• “The Hero’s Call: Workplace Bullying” (Sept. 2022) (link here) — Suffolk Law alumnus and trial attorney Marc Diller extended an invitation to appear on his law firm’s video web series, The Hero’s Call. Marc and his colleague, Dr. John Naranja, asked me about my work around workplace bullying, the anti-bullying Healthy Workplace Bill, and associated activities in the field of therapeutic jurisprudence.
• “The Dignity of an Intellectual Life for All” (Oct. 2022) (link here) — I organized and hosted an interactive discussion featuring Zena Hitz (tutor, St. John’s College and author, Lost in Thought: The Hidden Pleasures of an Intellectual Life (2020)), followed by a responsive panel of distinguished educators, including Joseph Coulson, Hilda Demuth-Lutze, Linda Hartling, and Amy Thomas Elder. Hosted by Suffolk University Law School and co-sponsored by the Basic Program in Liberal Education for Adults at the University of Chicago, Harrison Middleton University, and the World Dignity University initiative of Human Dignity and Humiliation Studies.

Popular 2022 posts

Image courtesy of citypng.com

Hello dear readers, and welcome to the New Year! I collected ten of the most popular 2022 posts on work-related themes. If you missed them earlier or would like to take another look, then here’s your chance to read them:

• “Gaslighting” is the Merriam-Webster 2022 “word of the year” (Dec. 2022) (link here)
• Watching “Gaslight” (1944): One viewer’s guide (Oct. 2022) (link here)
• Workplace bullying and mobbing: Annotated recommended book list for 2022 (Aug. 2022) (link here)
• We need to dig beneath generic references to “toxic workplaces” (Aug. 2022) (link here)
• “The Wire” as work primer (July 2022) (link here)
• The Amy Wax situation: On academic freedom, diversity & inclusion, workplace mobbing, and cancel culture (July 2022) (link here)
• Dr. Martha Stout on outsmarting sociopaths (including those at work) (June 2022) (link here)
• On disability bullying (March 2022) (link here)
• Bullying, mobbing, and incivility in the healthcare workplace (Feb. 2022) (link here)
• A degrading money grab for classroom supplies in South Dakota (Jan. 2022) (link here)

Workplace bullying from the bottom up

In the United States, workplace bullying tends to be a top-down phenomenon. According to the latest Workplace Bullying Institute national scientific survey of workplace bullying in the U.S. (link to summary here), supervisor-to-subordinate bullying is by far the most frequent pattern (65%), followed by peer-to-peer bullying (21%). Subordinate-to-supervisor bullying, which some researchers call upward bullying, lags far behind in terms of prevalence (14%).

This makes sense. The American workplace tends to be hierarchical. The predominant U.S. rule of at-will employment allows an employer to terminate an employee for any reason or no reason at all, so long as it does not violate legally carved-out exceptions such as employment discrimination laws. Fewer than 15 percent of U.S. workers enjoy the greater job protections provided by collective bargaining laws. Overall, supervisors tend to enjoy a significant power advantage over subordinates.

But upward bullying is real, and like any other form of workplace mistreatment, it can be pretty awful for someone on the receiving end.

Harvard Business Review weighs in

Recently, the Harvard Business Review published an article by Ludmila N. Praslova, Ron Carucci, and Caroline Stokes (link here), exploring upward bullying and providing advice to targets. Here’s a snippet of how they explain this dynamic:

Upward bullying often starts with covert behaviors such as withholding information and subtle gaslighting. After eroding some of the bullied supervisor’s legitimate authority and psychological resources, bullies escalate to spreading rumors, circumventing, and insubordination, further undermining the target’s position and well-being. Typically, bullying by subordinates is enabled by support from the management one or more levels above the targeted supervisor.

…Bullying by subordinates can be fueled by personal characteristics such as charm or manipulation skills, by nepotistic relationships with next-level supervisors, or by membership in a clique. And wherever there’s rampant self-interest and a culture of winning regardless of ethics, you’ll find people willing to undermine anyone in their way to get what they want, regardless of where in the hierarchy they reside.

Their major categories of advice (accompanied by explanations) sound a lot like that given to other targets of workplace abuse:

• “Don’t give in to shame.”
• “Resist the allure of avoidance.”
• “Write down what’s happening.”
• “Seek help.”
• “Monitor your accumulating emotions.”
• “Prepare yourself to stand up to your bully.”
• “Decide if it’s time to go.”

Standing up to the bully

From these clusters of advice, one stands out as being particularly noteworthy, and that’s standing up to the bully. Workplace bullying subject matter experts have known for years that the stand-up-to-your-bully advice, which has its roots in childhood bullying scenarios, often turns out badly when subordinates confront bullying bosses. Frequently this only exacerbates the situation, hastening the target’s demise.

However, a supervisor being bullied by a subordinate usually has a major advantage by virtue of the fact that they typically review the person reporting to them and may have a significant say in that employee’s compensation and job security. A target of upward bullying can aptly classify this behavior as being performance-related. (Of course, all targets of workplace bullying should be able to claim that as well. But especially in the more common top-down form, the target is often blamed or ignored when they report bullying to management.)

This does not mean that the target of upward bullying has it easy. The interpersonal side of dealing with a highly manipulative individual can be exhausting and exasperating, regardless of where bully and target stand on the organizational chart. And because more in-your-face bullying tactics are a surer way to get fired, frequently the bullying subordinate relies on passive-aggressive approaches that are harder to identify and comprehend. This can be maddening to sort out.

A complex topic in need of greater attention

The Harvard Business Review piece is especially welcomed because it adds insight to a type of workplace bullying that calls for more research and understanding. Search “upward bullying” or “workplace bullying by subordinate” and you may see what I mean. A lot of the research and commentary comes from other countries, where work cultures are more horizontal (i.e., less top-down), with greater union density and stronger worker legal protections. Under such circumstances, it makes sense that more upward bullying would occur.

In fact, I’ll offer a hypothesis that in the U.S., a disproportionate amount of upward bullying occurs in public sector and unionized workplaces, where workers tend to enjoy stronger job protections. Quite simply, it’s easier to terminate a bullying subordinate in an at-will employment setting than in one where more documentation of good cause may be necessary to defend the same action.

I’ll offer a further hypothesis that at least some of the claimed upward bullying in the U.S. involves workers with less power trying to exert some degree of influence over bad supervisory situations, including those where the boss is a jerk or even a bully. In such situations, passive-aggressive, indirect ways of expressing unhappiness or resistance may be the only viable paths available, at least until a better opportunity comes along. This, of course, should not be reason to dismiss the presence of genuine upward bullying, but it should be part of the discussion.

“Gaslighting” is the Merriam-Webster 2022 “word of the year”

 

Back in October, I shared a short viewer’s guide to the 1944 film Gaslight (link here), noting that it inspired the pop psych term gaslighting, which is “now used to characterize psychologically manipulative and controlling behaviors in interpersonal relationships, the political realm, and — of course — our workplaces.”

Well, little did I know that the folks at the venerable Merriam-Webster dictionary would designate gaslighting as their “word of the year” for 2022! Here’s Leanne Italie, reporting for the Associated Press (link here):

“Gaslighting” — behavior that’s mind manipulating, grossly misleading, downright deceitful — is Merriam-Webster’s word of the year.

Lookups for the word on merriam-webster.com increased 1,740% in 2022 over the year before. But something else happened. There wasn’t a single event that drove significant spikes in curiosity, as it usually goes with the chosen word of the year.

…“It’s a word that has risen so quickly in the English language, and especially in the last four years, that it actually came as a surprise to me and to many of us,” said Peter Sokolowski, Merriam-Webster’s editor at large, in an exclusive interview with The Associated Press ahead of Monday’s unveiling.

“It was a word looked up frequently every single day of the year,” he said.

This is Merriam-Webster’s definition of gaslighting (link here):

: psychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self-esteem, uncertainty of one’s emotional or mental stability, and a dependency on the perpetrator

To learn more

I’m re-sharing a book recommendation and some earlier pieces here on gaslighting, especially as it pertains to the workplace:

To learn more about the dynamics of gaslighting, I recommend: Robin Stern, The Gaslight Effect: How to Spot and Survive the Hidden Manipulation Others Use to Control Your Life (2018 paperback ed.).

Past blog posts:

2012-2020: When gaslighting went mainstream (2021)

Gaslighting exists, and it’s horrible, so we should invoke the term carefully (2020)

Institutional gaslighting of whistleblowers (2018)

Reissued for 2018: Robin Stern’s “The Gaslight Effect” (2018)

Gaslighting at work (2017, rev. 2018)

Inauguration Week special: “Gaslighting” goes mainstream (2017)

Is gaslighting a gendered form of workplace bullying? (2013)

Gaslighting as a workplace bullying tactic (2012, rev. 2017)

“The Hero’s Call”: An alumnus interviews me about workplace bullying

One of the most gratifying things that I experience as a law professor is when I can reconnect with a former student who has built a successful and positively impactful legal career. Such was the case recently, when Suffolk Law alumnus Marc Diller extended an invitation to appear on his law firm’s video web series, The Hero’s Call.

Marc’s law firm is devoted to personal injury law, built around the conviction that those who suffer harms because of someone’s negligent, reckless, or intentional behavior should be entitled to compensation for their losses. And I’m delighted to note that Marc himself has become a highly accomplished and respected trial attorney here in the Bay State.

When the pandemic emerged, his firm launched The Hero’s Call series to spotlight the work of folks who are working to safeguard and advocate for the health and safety of others. Marc and his colleague, Dr. John Naranja, interviewed me for The Hero’s Call about my work around workplace bullying and associated activities in the field of therapeutic jurisprudence. To watch the 24-minute interview, go here.

From genocide to bullying, may remembrance inspire our commitment

The social media image that most commanded my attention on Friday morning was a photo of Otto Frank, father of Anne Frank, taken in May 1960, on the day that the Anne Frank House in Amsterdam was first opened to the public. Otto Frank was the only member of his immediate family to survive the Nazi concentration camps. Daughters Anne and Margot, and wife Edith, all perished before they could be liberated.

Staring at that photograph, I tried to imagine what was going through Mr. Frank’s mind. But I understood that I could never truly comprehend his experience and the journey that brought him back to the place where he, his family, and four other Jewish residents spent some two years in hiding before they were discovered and eventually transported to Auschwitz.

Remembrance

And yet, even if we do not share direct memories of the Holocaust, maintaining a collective sense of remembrance, buoyed by historical literacy, is central to our understanding of how humans can engage in seemingly unthinkable atrocities. Indeed, I believe that the Nazi genocide is a key starting place for grasping our capacity for cruelty. As I wrote eight years ago:

We need to understand the Holocaust because there is no more documented, memorialized, and analyzed chapter of widespread, deliberate, orchestrated human atrocity in our history. If we want to grasp how human beings in a “modern” era can inflict horrific cruelties on others  — systematically and interpersonally — then the Holocaust is at the core of our understanding.

Despite the ample historical record, we may be losing our collective memory of the Holocaust, at least in the U.S. In 2018, Julie Zauzmer reported for the Washington Post:

Two-thirds of American millennials surveyed in a recent poll cannot identify what Auschwitz is, according to a study released on Holocaust Remembrance Day that found that knowledge of the genocide that killed 6 million Jews during World War II is not robust among American adults.

Twenty-two percent of millennials in the poll said they haven’t heard of the Holocaust or are not sure whether they’ve heard of it — twice the percentage of U.S. adults as a whole who said the same.

. . . Asked to identify what Auschwitz is, 41 percent of respondents and 66 percent of millennials could not come up with a correct response identifying it as a concentration camp or extermination camp.

From genocide to bullying

Years ago, as I began my deeper dives into the dynamics of bullying and mobbing at work, I looked to the nature of genocidal behavior for understanding the eliminationist instincts that appear to be present in attempts to force someone out of a workplace and even wreck their careers. I took these steps somewhat gingerly, because I wasn’t sure of the appropriateness of comparing genocides to even the worst kinds of workplace mistreatment. You might sense these tentative steps in what I wrote back in 2011:

Do the individual and collective behaviors of the Holocaust help us to understand severe, targeted, personally destructive workplace bullying?

The question has been discussed within the workplace anti-bullying movement and requires respectful contemplation. I am well aware of the casual overuse of references to Hitler and the Nazis in our popular culture, especially in today’s overheated political discourse. Moreover, I acknowledge the dangers of comparing anything to the Holocaust, an outrage so profound that it is nearly impossible to fathom but for the abundant factual record.

Nevertheless, I have steeped myself in the experiences and literature of workplace bullying, and I have read many works about the Holocaust. Although the two forms of mistreatment are hardly equivalent — even the worst forms of workplace bullying are a world away from genocide — there are real connections between them.

I credit two important individuals for helping to validate my hesitantly shared belief that genocide and bullying exist together on a spectrum, connected by common human toxicities and failings.

First, Barbara Coloroso is an internationally recognized authority on school bullying whose work has also extended into the realm of human rights generally. In her book Extraordinary Evil: A Short Walk to Genocide (2007), she recounted how she used a talk at the University of Rwanda to explain “how it was a short walk from schoolyard bullying to criminal bullying (hate crime) to genocide,” invoking the roles of aggressor, bullying target, and bystander.

Second, Dr. Edith Eger is a noted trauma therapist, author, and Auschwitz survivor. At a conference in 2017, I had the bracing task of immediately following her eloquent keynote speech with my presentation about workplace bullying and mobbing. Looking periodically at Dr. Edie (as she is known) as she sat in the front row, I shared with everyone my unease about comparing the Holocaust to work abuse, especially in the presence of someone who had survived the horrors of Nazi concentration camps. Thankfully, when I finished my talk, Dr. Edie applauded enthusiastically and gave me a warm nod of approval. I was both relieved and honored by her response.

Commitment

In the realm of employment relations, we often use the terms workplace bullying and workplace incivility as a matched pair, with some differentiating them only slightly by severity and intention. However, I’ve come to regard workplace bullying, mobbing, and related behaviors as being closer in essential character to the even more virulent behaviors that target people for abuse or extinction en masse. The degree and extent of harm may vary greatly, but the driving psychological and social forces bear many likenesses.

Indeed, over the years, the worst accounts of workplace mistreatment that I’ve known of have had nothing to do with incompetent management or everyday incivilities. Rather, they’ve typically shared a malicious intention to diminish, undermine, and harm someone, to drive them out of the organization, and perhaps even to destroy their ability to earn a living. In each of these instances, an eliminationist instinct has been very present, usually enabled and protected by institutional cultures.

Ultimately, all behaviors on this spectrum of cruelty and toxic abuse of power demand our responses. Thus, remembrance should inspire our ongoing commitment to understand and address these behaviors, wherever they may appear. 

For my part, I’ll continue my research, writing, and advocacy on workplace bullying and related topics. That work is a lifelong commitment. In addition, the contemplations offered above, some of which draw upon previous writings posted to this blog, represent some early thinking steps towards a more ambitious project that examines the varied manifestations of cruelty and abuse and assesses how law and public policy have responded to them. My objective is to contribute to a broader and deeper understanding of the differences and commonalities among these forms of severe mistreatment and what we can do about them.

We need to dig beneath generic references to “toxic workplaces”

(image courtesy of clipart-library.com)

If you’ve been following media coverage of some of the not-so-wonderful aspects of the current American workplace, then you may have encountered the growing cacophony of references to “toxic workplaces,” “toxic work environments,” “toxic jobs,” and the like. (If you doubt me, do a few Google searches and you’ll quickly see what I mean!)

It appears that a mix of the following has given rise to generic references about toxic work settings:

• The MeToo movement;
• The pandemic and overwork of workers in essential job categories;
• The Great Resignation;
• Diversity, equity, and inclusion;
• Political and social discord;
• Bullying and incivility;
• Attention to bad bosses;
• Wage stagnation and benefit cuts;
• The recent dramatic uptick in union organizing.

Organizational behavior research from years ago taught me that different forms of workplace mistreatment tend to run together in packs. Thus, if you encounter a workplace rife with sexual harassment, then you’re quite likely to see other forms of interpersonal mistreatment flourishing as well. Contemporary news accounts often confirm this. For example, I’ve noticed that investigative pieces focusing on sexual misconduct in a given workplace often then segue into describing behaviors that might be labeled as bullying and/or incivility.

In any event, if we wish to create healthier, happier, and more productive workplaces, then we need to dig beneath the generic tag of toxicity and ask specifically what’s going on. The results may yield different problem areas and different fixes. Some bad behaviors may be intentional. Others will fall under the categories of negligence or dysfunction. Some may implicate employment and labor law violations. Certain concerns may be organizational in nature; others may be limited to a department or working group.

It’s also true that, on occasion, frequent complainers will invoke the language of toxicity to avoid supplying specific allegations that won’t hold up. Some will do so as attempted shields against accountability for their own inadequate work performances.

That said, I feel confident in saying that there is a fair amount of genuine unhappiness and undue stress in our workplaces during this snapshot moment in time. Some of the causes may be beyond the means of even well-intentioned organizations to remedy. But good employers will address worker concerns with attention to detail and an innate sense of fairness and dignity, while bad ones will dismiss reports of workplace toxicity and sometimes pay the consequences.