As I catch up—or at least get less far behind—on the piles of work, potentially work-generating activities, kid activities, and volunteer responsibilities littering my plate, I turn to a long delayed blog. Ahhhhh, it's like Spring Cleaning.
You see, I have been toting around Volume 14 of the LERA publication Perspective on Work"—yes, that's "Summer 2010/Winter 2011"—for months now, wanting to do something with it. It had a number of interesting articles I wanted to comment on, including titillating tidbits like work place bullying, and universal, guaranteed pensions for all. But, the longer I waited and put it off, the more things jumped ahead in line… You know how that goes.
Now, however, I am ready to tackle it. I am just back from facilitating at a women's retreat held by my church, where we discussed issues like the burdens we carry around unnecessarily, freedoms we fail to exercise, and ways in which our freedom is restricted by ourselves as well as by forces outside our control. In honor of these themes, I will limit myself to just the issue of bullying, and then promptly discard what has become an albatross upon my briefcase.
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"Bullying" has become quite the hot topic as you have likely noticed. It became very prominent in the consciousness of school officials in response to a number of shocking news stories on the cruelties committed by kids upon their peers. We have all observed "the innocent cruelty of children," and some of us maybe even practiced it from time to time on the school yard. But, at least for those who have since left childhood, it suddenly seems like somewhere along the line children's cruelty has ceased to be so innocent. See "The History Of School Discipline, School Shootings, Bullying," at http://law.jrank.org/pages/12103/School-Violence.html; see also Google's Timeline on "History and Origins of School Bullying," http://bit.ly/eQtcSZ (shortened link).
The same concerns about the not-so- innocent bullying are also surfacing in the workplace. See "Origins of the International Workplace Bullying Movement" at http://www.workplacebullying.org/about/history.html . This is perhaps not surprising, considering our national "extended adolescence," as some have described it. In any event, mediators, organizational ombudsmen and other sensitive types have been concerned for quite some time about the best way for management to address, halt and redress and workplace bullying. Two ombudsmen writing in Perspectives reviewed how bullies can be extremely aggressive and insulting, may not recognize their behavior, and can cause great emotional harm to fellow employees. Id. at 16-17," Concerns about Bullying at Work as Heard by Organizational Ombudsmen." These two authors, Lydia Cummings and Mary Rowe, concluded
We believe employers should require all supervisors to work together with line and staff managers to create a culture—in every department—that affirms professional and respectful behavior and does not tolerate unacceptable behavior. I can certainly sympathize with the disharmony caused by workplace bullying, and on its face Cummings' and Rowe's proposition does not sound too controversial. It rests, after all, those crucial normative concepts of "should" and "culture."
However, in my estimation, author David Yamada may go too far in his Perspectives article by arguing bullying should be legislated because it "remains the most legally neglected form of worker mistreatment." Id. at 19, "As Workplace Bullying Enters the Mainstream of American Employment Relations, Will Law and Public Policy Follow." Yamada points out, like the ombudsmen, that bullying "can inflict significant psychological and physical harm." Id. However, neither the fact that it is not yet regulated, nor the potential for harm, alone support an argument for the regulation of bullying.
In the event of physical and emotional harm, there are already adequate protections and remedies, such as: criminal sanctions for battery; tort laws requiring an employer to provide a physically safe workplace; and individual torts for causing extreme emotional distress. Similarly, most employment is at will and employees are free to leave if they cannot get along with their co-workers. A number of other employers provide policies against bullying and procedures to challenge the enforcement of employment policies. Thus, it is not clear to me at this point why these remedies are not sufficient to address and remedy bullying.
Moreover, the workplace has always been a bit of a jungle, much like the school yard, but for a legitimate purpose: competition. Management opponents to anti- bullying legislation argue that business cannot maintain its competitive edge if everyone is forced to "make nice" at all times, and that claim has a ring of reasonable truth. Unlike schools, employers do not stand in the position of parens patria to their employees and employees, unlike students, are free to leave the environment. In light of the differences between the two environments, it is difficult to see why a legal duty can or should be imposed on employers to prevent something as amorphous and difficult to define and cabin as "bullying."
Finally, I would be concerned by the potential cost of such legislation. As already alluded, where would liability stop? Illegal discrimination is cabined by the causation and intent elements, but there may not be a natural break or limit on liability for "bullying." Under anti-bullying legislation, employers could be required to regularly defend claims that it failed to prevent employees from such conduct patterns as rudeness, intimidation, not sharing information and ideas, showing preferential treatment to some people, failing to deliver on suggestions of advancement or reward, id. at 16, Cummings and Rowe, or being mean to a coworker for no reason other than personal malice. Id. at 20, Yamada.
Moreover, because the term is so subjective, there is also a great risk that anti-bullying legislation would merely realign the positions of certain categories of employees. For example, while meeker employees today might be "unfairly" forced to leave employment because of the brutish behavior of a more aggressive employee, anti-bullying legislation may simply result in more aggressive or naturally abrasive employees being unfairly terminated because they do not "get along" with milder employees. Can we say with certainty that in this scenario society and the economy would be inherently improved, as has been the case in prohibiting invidious racial or gender discrimination?
Bullying is a common human failing, and has been for many centuries. See Mark Peters, "Bully: A Vicious, Cowardly Word With a Long History," at http://www.good.is/post/the-history-of-the-word-bully/. An old flame of mine who was raised on a farm described it as the "bloody chicken game." Ever notice, he asked, how all the chickens gang up on a bloody, injured or sick chicken, and tear into it? Well, we do it too, he observed. Given that and given that our incivility is, by all accounts, on the rise not the decline, I am not comfortable with the cost to business of being required to guarantee its employees' systematic good behavior.
At my women's retreat, we discussed things like healthy inclusion, the powerlessness of being denied a voice or forum, and bullying, and I certainly find these policy discussions insightful. That dialogue teaches me a lot about how we should, on a personal basis and as individuals acting within an institution, act towards one another, and identify and call-out abuse of power when we see it, and promote the freedom of expression of others. However, I for one am not prepared to cede that authority and responsibility to the state, to then impose it on businesses as "the Man."
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