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Workplace Bullying Laws - Help or Potential Damage?
The definition according to this institute is as follows:
Is repeated, health-harming mistreatment of one or more person(s) (that target) perpetrators that take one or more of the following forms:
- verbal abuse
- offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating
- Work interference - sabotage - which prevents work from getting done.
Workplace Bullying: (a) is driven by perpetrators' need to control the targeted individual(s), (b) is initiated by bullies who choose targets, timing, place and methods, (c) escalates to involve others who side with the bully, either voluntarily through coercion, and it (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself. (WorkplaceBullyInsitutute.org) .
According to the Institute, being bullied at work is something that closely resembles that of being a battered spouse. The abuser inflicts pain when and where he chooses; keeping the target (victim) off balance knowing that violence can happen on his whim but dangling the hope that safety is possible during a period of peace of unknown duration. The target is kept close to the abuser by the nature of the relationship between them - husband to wife or boss to subordinate or co-worker to co-worker.
The Workplace Bullying Institute states clearly that since domestic violence is not legal then Workplace Bullying should not be legal either. There have been some interesting books written on the subject of "Bullies in the Workplace" and there are numerous blogs and websites on topics of bullies or jerks in the workplace. The U.S. and a number of other countries have joined that front. Simply do a Google search and see what you can find. There is a barrel full of resources to help people deal with things such as the following but there is a difference here. You cannot be charged with a crime in a domestic violence case for (including nonverbal) simply looking at someone in a particular manner.
This circumstance is clearly different and this is why I am having difficulty with the proposed law. Furthermore, regarding the nonverbal expressions front this would include people with cognitive, neurological and mental disabilities, how exactly will they be dealt with under this law? How will an individual with autism who looks at someone in a "confrontational" way or has a tendency to stare be treated? Or someone who has PTSD and "looks scary"? How will the person who makes a hand gesture that is perceived as threatening be interpreted? How or will the ADA be integrated into this law? Let's break this down a bit more and look at the weaknesses from a couple different perspectives. For the record, I am not opposed to having a law that protects people from workplace bullies; however it should not be so ambiguous and needs to have reliable, consistent and measurable standards in place.
That is a primary reason I do not think Workplace Bullying legislation is passing nor do I think it should be passed until commonly misinterpreted workplace diversity issues that exists is taken into consideration. Here are some examples of what should be considered:
- Verbal Abuse: Now this is measurable and in other workplace laws under forms of harassment along with Civil Rights laws to protect people under the Civil Rights Act. This proposed law is aimed at making sure that no one can verbally harass a person regardless if they are in a protected class or not (not all together a bad thing).
Under existing statute verbal abuse is defined as: being yelled at, talked down to, called names, and degraded-all things many of us have experienced in our lifetime. However, the Bullying Institute wants protection for everyone regardless of who you are and even if you are the boss. If you do your homework, there is not much support out in the public or workplace for bosses who are bullied. I was not able to find articles or research about being bullied on any websites for the boss who also has a disability, or a boss in a currently recognized protected class so this could be a good thing to have in place.
Bear in mind, if you look at web sites and do your research according to what is reported, it is mostly management issues related to employee matters that is reported and that is responsible for this type of harassment so my questions is, will it be dealt with and will it be investigated by the appropriate persons? If it is your boss, who will do the investigation? It is likely that the Human Resources will if your company has that department. Verbal Bullying is an easier thing to measure, so as long as there are witnesses, documents that can be brought into the investigation then this is form of bullying would be something easier to prove. We usually know when someone calls us a derogatory term or is putting us down.
- Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating: This form of bullying will be harder to prove unless there are notes, emails, or others who witness these behaviors to back up what was seen (to back up the non-verbal behavior).
If, as I stated before, any of the alleged behaviors are non-verbal, it is more or less open to interpretation, especially if you factor in the unique nature of the human expression. Another factor I wonder if we considered on the non-verbal piece is that we are a diverse rich country. Do we realize that we all have different ways of sending and receiving non-verbal messages?
Of course the FBI will tell you that we all have certain facial features that can be read, but there are certain gestures and certain facial exchanges that others don't read well or send well depending on how we were raised, where we were raised, if we have a disability, our national origin, race, religion, sex, or ethnicity. We are human beings and often quick to pre-judge a persons' intent and maybe that is due to our own distinct diverse characters and there is nothing wrong with that.
Does that mean we should have a lawsuit or should we opt for an alternative such as instituting a Diversity Management Team to handle situations such as these where we can learn from these experiences and become more open minded about one another? Instead of focusing on working with human diversity, we are instead creating more laws to create more fear of it. Let's not forget the unintended impact to a diverse population that is apparently being ignored for individuals with cognitive, neurological, learning, and mental disabilities.
It is challenging to interpret non-verbal reactions coupled with dynamic daily workplace events unless you are a trained professional and even then it is difficult. For example, if a guy is unloading a truck and each time he gets the truck unloaded he hits himself in the head three times, do you need to worry that he is going to hit you? Not if you know the guy the way that I do and understand that because he has autism this is how he responds. While this is can be viewed as "different from the norm", it is the norm for him.
If you are familiar with this person's behaviors, you know he has never hurt anyone and his behavior is a symptom of his disability. So how are his non-verbals behaviors going to be interpreted by others in the workplace without some sensitivity training? Are we taking this workplace bullying issue too far? Is the ADA going to protect him? Hopefully, the answer is likely to be yes, but at what cost to his well-being, what cost to the company and why do we have to go to this extreme? Are we getting a bit over-zealous in our efforts? Are we going backwards instead of forwards in understanding the natural diversity of people in the workplace?
- Work interference - sabotage - which prevents work from getting done: We have had and will have people who prevent us from getting our jobs done. Is this really a bully or someone who is a control freak? Again, this could a matter of interpretation. Who defines what a bully is? Hostility comes into play. Sabotage is the key word; when an individual cannot get things done because another individual is not only preventing, but sabotaging the end result.
There are individuals in the workplace with cognitive disabilities and those people sometimes have the need to have a sense of control because their world becomes unbearably chaotic without some level of control due to the nature of the cognitive disorders. It seems better to try to understand what is going on with them by using our diversity management systems rather than becoming paranoid that they are trying to take our jobs. Again, should we aim to try to understand the person first, or jump to extremes by knowing a law exists to file a complaint that someone is sabotaging your job when in reality they may be dealing with a disability?
I am not implying that bullies do not exist in the workplace because they do. But if we are going to start to make any headway regarding the diversity issues related to disability in the workplace in this country, we are going to need to start working on methods to encourage conversations with our diverse peers, bosses, and subordinates and find a way to make things work without avoiding the real issues.
Recently I attended a wonderful workshop presented by a group called Insight Education System hosted by the Diversity Leadership Alliance in Phoenix Arizona. The gentleman presenting gave me much to think about and made a statement that resonated quite well for this topic. His presentation was about "Language makes it difficult for us to focus on the mico-message (S. Young, 2008)," My interpretation of this is that we miss so much of the communication intent because we often pay more attention to what people are saying non-verbally and often misinterpret them.
This creates a communication barrier that Mr. Young, President of Insight Education Systems, calls Filtering. Learning to decipher things such tone of voice as inflection, non-verbal cues as hand gestures, winks of the eye, a touch on the shoulder, or even a certain glance or posture a person during introductions all have pertinent meaning. The key is the combination of those events and taking it all into account.
It all has merit and makes lots of sense. My concern for the Workplace Bullying Laws where non-verbal communication comes into play is what gets measured? Who interprets it, and like the other harassment laws, does one non-verbal gesture weigh the same even though corrected, as another non-verbal gesture even though the individual does not fully understand?
I have personally been a victim of domestic violence and have encountered bullies at work. I am also a person with a hidden disability, and from my experience I can honestly write this article and say, domestic violence is far more extreme than workplace bullying as you actually still live the experience even while you sleep (they are there with you at that time too). I do, however, empathize with anyone who is or has had experiences with bullies at work because they do bring you to the edge of disaster and to a personal breaking point. In my opinion, it is critical to emphasize that subjective non-verbal interpretation or provisions should not be included in this proposed law as it will tie up the courts and create havoc in the lives of many people who have been misunderstood all or most of their lives. Sticking with the facts that are measurable provides a clearer standard for all parties.
No one wants a bully at work but the diversity issues for people with cognitive, neurological, and mental disorders are significant and we need to look into these proposed laws with seriousness. I invite you to do so carefully and with speculation about the unintended consequences impacting adult workers with these conditions. Are we creating another law to interfere with equal access to the world of work instead of building on laws that perhaps just need more strength? This year, for example, the Civil Rights Act came up for Amendment that was not passed. It included those with disabilities. Why wasn't it passed? There were several reasons, but to create a new law that would jam the courts without giving consideration to how it could harm a diverse nation of those with disabilities and those of diverse backgrounds is something I hope that the Bullying Institute will give serious consideration to before trying to pass legislature.
People having non-verbal learning disabilities, Aspergers, autism, mental illness, traumatic brain injury (e.g. combat veterans coming back from the middle east) PTSD, organic brain dysfunction, our at risk youth who have grown up in difficult circumstances trying to find their way in life and fitting into mainstream could be horribly impacted by the way the Institute classifies this proposed law. Please write to the Bullying Institute, your congressman and state legislators to express your views that this law needs to be modified to protect our diverse nation. Do we really need this law? We do need a law to protect people from being abused or taken advantage of in the workplace, but is this the right formula?
In my opinion, without extension reconsideration, we are running the risk of harming innocent people who are unfairly judged based on their race, religion, disability, ethnicity, sex, national origin, gender identity, and, sexual orientation. We will be going backward as a country, not forward. I think there is another way to strengthen the intent of this proposed law is drafted prior to it being passed. I think we need a team of individuals from a variety of expert backgrounds to help the Institute craft a better proposal, including persons who have these conditions to lend additional credibility and inclusiveness of community. Perhaps then human resource groups will back this as well as the courts, but until that time, it is my belief it is on shaky ground. This country has a history of dealing with personal and workplace differences based on fear; it is time we find a way to work on trust.
Veronica Lieb-Crawford is on the staff of LDI, www.lifedevelopmentinstitute.org. LDI works with young men and women between the ages of 18-30 who have cognitive, emotional, or neurological conditions such as learning disabilities, ADHD, Asperger’s Syndrome, NLD, depression, anxiety and other related disorders. Contact them on the web, or by phone at:623.773.2774.