Workplace Violence and Bullying - Example

Workplace violence and bullying Workplace Health and Safety Management) As of there is no or federal current law forbidding workplace bullying in USA. However, an action can be initiated employing anti-discrimination laws and civil rights laws. Majority of the victims of workplace bullying suffer from acute stress, loss of self-esteem, critical mental and physical issues, which are likely to have further detrimental effect on their association with their families, partners, colleagues and friends. Thus, bullying in the workplace has become very serious social issue now. The New Health Workplace Bill which is introduced by 25 states will facilitate an employee to sue for bullying without demonstrating any evidence of discrimination. Further, an employer is also will be held accountable if he remains as a silent spectator when there is bullying in his workplace. Thus, employers should try to stop bullying demeanor in the workplace by perusing varied provisions in employment policies or through the employee handbooks that take care of bullying. This essay will also recommend suitable steps to be initiated for minimizing bullying in the workplace in the near future and to make USA as a nation free from workplace bullying. Introduction Violence in society, negative culture, instability, widespread discrimination and injustice is increasing thereby causing more anxieties. Many studies have found that there is a direct inroad of societal issues into the workplace, with violence as one of the chief concerns (Di Martino 2002). Bullying is also known as “mobbing “in many nations and in French-speaking world, it is known as “harassment.” Later, Leymann (1986) copied the phrase” bullying “in the schoolyard to denote the methodical maltreatment of members of the organizations, if prolonged, could result in acute psychological, social, and psychosomatic issues in the target. The American Psychologist Caroll M. Brodsky depicted brutality and cruelty behaviors of human beings in the works place. Brodsky , in 1976 itself enumerated the instances where employees at all organization levels had been systematically abused and mistreated by their co-employees or superiors in the workplace, with demoralizing impact on their health , productivity and well-being. U.S. scholars like Keashly (1998), Yamada (2004), Lutgen-Sandvik and Keashly and Jagatic exposed the bullying in the workplaces (Einarsen, Hoel, Zapf & Cooper2003: 8). This research essay will discuss in detail about workplace violence and bullying , its impact on the employers and employers , how current state and federal laws are not adequate to forbid the workplace bullying , how courts in USA have helped to prohibit such practices in the workplace , the need for separate legislation for banning bullying in the workplace and appropriate recommendations to improve the current scenario in USA. Workplace Bullying in USA- An Analysis Workplace violence includes physical violence such as shoving, kicking, pushing, unwelcome sexual touching, punching and sexual assaults and non-physical violence include intimidation, verbal abuse and threatening demeanor. One research study carried over in USA exhibits that taxi drivers have the greatest risk for workplace violence, which is six times greater than the nation’s average (Burdick, Berkowitz & Francis 2013:1). Bullying happens when there is an imbalance of authority which can be perceived one or real. The misuse of authority may happen due to seniority, size, and control of resources, authority or social influence. It can arise due to the fact of variance in personality, where one person is forceful and authoritative than the other, and due to command of language where one person has a quicker or sharper tongue than the other. Bullying can be happening from higher level to down, it can also occur among the employees’ at the same category which is also known as ‘sideway’ or ‘horizontal ‘bullying’. An ‘upward ‘bullying can happen when a lower-level employee directs the bullying towards the manager or the supervisor. Group bullying refers to the practice of bullying by a ring leader joining with his subordinates. Bullying may be intensifying due to a change in the atmosphere of the workplace due to arrival of a new colleague or a new manager who has higher or competent social skills (Burdick, Berkowitz & Francis 2013:1). Majority of the victims of workplace bullying suffer from acute stress, loss of self-esteem, critical mental and physical issues, which are likely to have further detrimental effect on their association with their families, partners, colleagues and friends (Richards & Freeman 2012).A prolonged hostile workplace atmosphere can result in prolonged duress stress order (PDSD), depression, physical or mental breakdown, financial issues, divorce, marital conflict and may even in suicide. Burdick, Berkowitz & Francis 2013:2). Workplace bullying is dependent on many factors like the perpetrator, victim , the employer , coworkers , the background of the victims’ , the background of the perpetrator , personality and the outside forces which may have direct effect on the scenario. (Burdick, Berkowitz & Francis 2013:2). As per Zogby (2007) poll, about 37% of the respondents in U.S.A agreed that they witnessed bullying in their workplace. As per 2010 U.S. Workplace Bullying Survey, 35% of interviewees (about 54 million people, the combined population of 6 western –most states in USA) said that they experienced bullying in their workplace either presently or in the past, whereas only 15% said that they witnessed it and whereas 50% reported that they never experienced it. The majority of the bullying in the workplace is carried over by the boss or superior as it accounted for 72% whereas 18% of the bullying is carried over by coworkers. Burdick, Berkowitz & Francis 2013:2). Source- WBI Employer Bullying Policy survey 2012 It is sad to note that as of date, there is no state or federal current law forbidding workplace bullying in USA. However, this scenario soon may change as 25 out of 50 states in USA have introduced bills that would make bullying in the workplace as unlawful and eleven of them, which remain active as of date. As of now, employees who are abused footed upon their being members in a protected class – nationality, race or religion – can sue against perpetrators under civil rights laws. However, the current laws normally do not offer safeguard against plain old sadism. Increasing concern about bullying in the workplace has compelled the employers to address and to discourage anti-bullying demeanors, mainly through the introduction of internal policies and procedures supporting mutual respect in the workplace and by introducing appropriate training thereby emphasizing on disheartening abuse in the workplace.(Friend & Khon 2010:287). It is to be noted that just one-fifth of bullying cases, the harassment was probably illegal where action can be initiated employing anti-discrimination laws. In other words, about four-fifth of bullying in USA are of legal bullying in nature. To avoid this, the employer should have strong non-harassment policy (Friend & Khon 2010:287). Source- WBI Employer Bullying Policy survey 2012 The New Health Workplace Bill which is introduced by 25 states is footed upon recapitulation of a model bill drafted by David Yamada, Suffolk University law professor and this facilitate an employee to sue for bullying without demonstrating any evidence of discrimination footed upon a protected characteristic whereas such rights can be claimed by protected class under the present civil right laws (Parker-Pope 2008). Though some employers have tried to stop bullying demeanor in the workplace by perusing varied provisions in employment policies or through the employee handbooks that take care of bullying and however, still a lot of improvements has to be made in such policies. Thus, to be more effective, an anti-bullying policy should include a concise definition of barred bullying demeanor and should also offer a descriptive list of illustrations, a provision encouraging employees to report such bullying incidents to designated officials, a provision stating that employees’ complaints will be investigated, and necessary corrective action will be initiated and a bar on any retaliation activities against such a reporting (Fox 2012). In the absence of specific anti-bullying laws in USA, the employees presently seek to redress against bullying activities under the existing local, state and federal laws barring harassment, discrimination and retaliation, also through worker’s compensation under state tort laws (Burdick, Berkowitz & Francis 2013:1). In “Wilson v Laitram Corp,” 131 F. Supp.2d 826 (E.D.La 2001), a Title VII race discrimination case was initiated by an African-American employee alleging that her supervisor did not stop the bullying demeanor, and she witnessed bullying from non-supervisory employees also. It was alleged by the Claimant that many Caucasian employees bullied her by alleging false charges that she was availing long breaks, she was sleeping during her job, etc. In this case, the employer made an application for summary judgment on the Title VII claims which the U.S. District Court for the Eastern District of Louisiana turned down and held that the Claimant had offered a prima facie evidence for race discrimination and there were issues as regards to whether the nondiscriminatory reason demonstrated by her termination was pretextual (Burdick, Berkowitz & Francis 2013:3). In “Espinoza v. County of Orange GO43067 (Cal.Ct.App.Feb.9, 2012)”, the claimant was a handicap with a right hand with missing fingers and thumb. The claimant employed at Probation Department of Orange County. An anonymous post appeared in the blog namely “keepingtheplace” which was maintained by a colleague of the claimant, and an anonymous poster had chided about her claw and even offered $100 to those who could take a picture of the claw. When Espinosa made a complaint to the employer, there were sudden increase in abuse posting against Espinoza. Immediately, cyberbullying transferred from the blog to the workplace. Her supervisor took no action despite her reporting on many occasions. Aggrieved by this, Espinoza initiated a discrimination claim on the footing of disability against the respondent. The court found that the employer was accountable for the bullying as the employer failed to initiate corrective steps. Thus, this verdict stands as a red flag for employers in USA explaining how employer‘s may witness accountability for not adequately resolving the workplace bullying (Burdick, Berkowitz & Francis 2013:3). In reality, so as to escape from bullying allegation, employers in USA have contended that they cannot be held accountable for offensive demeanor committed by employees or supervisors under state or federal harassment or discrimination laws by offering proof that the said bullying is carried over by an equal-opportunity harasser, whose infringement is unconnected to any protected conduct (Burdick, Berkowitz & Francis 2013:1). In Aguilera v Flour Enterprises Inc, 10- cv-95 (N.D. Ind.July 31, 2012) , the court granted employer’s motion for summary judgment on erstwhile employer’s Title VII harassment claim , by referring that the defendant offered a proof that the harasser was an “ equal opportunity bully.” In Yancick v. Hanna Steel Corp., 653 F.3d.532, 546 (7th Cir.2011), the court granted summary judgment to employer on §1981 harassment claim, pointing out that the alleged harasser was an “equal opportunity bully” (Burdick, Berkowitz & Francis 2013:1). Thus , the envisaged anti-bullying bill is enacted as law , it is likely to stop employers from successfully employing the above defense as it will unchain a victim’s capability to recover from being endangered to an offensive work atmosphere from the victims’ having a protected characteristic. As per US 2010 U.S. workplace bullying Survey, about 64% of Americans supported the concept of specific anti­­-bullying laws which is christened as the Healthy Workplace Bill (Burdick, Berkowitz & Francis 2013:6). Source: Workplace Bullying Institute 2013 There is one another way of claiming damages by probable claimants under the tort of intentional infliction of emotional distress. The unique feature of this process is that there is no need to establish a link between a protected characteristic and the abusive demeanor. Majority of the American states require a claimant to demonstrate that the respondent acted wantonly or recklessly and showed outrageous and extreme demeanor that caused emotional distress to the plaintiff to corroborate such a tort claim. Further, an employer can also be held liable for negligent hiring of such bullying retention or supervision (Burdick, Berkowitz & Francis 2013:4). In “Whiteside v. W.C.A.B (Unisys Corp.) 650 A.2d 1202, 1205 (Pa.Commw.Ct.1994)”; Cmty and in Empowerment Association v. W.C.A.B (Porch), 962 A.2d.1, 6 (Pa.Commw.Ct.2008) cases highlighted how employees or employees’ beneficiary can also initiate legal action for workplace bullying through the workers’ compensation system. For instance, under Pennsylvania’s workers compensation law, damages for mental injuries witnessed due to mental stimulus can be recovered by the employees which can include work-associated stress, in spite of whether the said demeanor was stimulated by prejudiced animus associated to a protected classification which is also known as “mental/ mental” cases (Burdick, Berkowitz & Francis 2013:4). So as to make a claim for psychological injury happened due to mental stimulus, an employee must demonstrate a high standard and to corroborate both conditions such as that an abnormal working scenario prevailed in the workplace which resulted in the injury and the employee witnessed injury caused by the very nature of the employment. In “McDonough v. Workmen Compensation Appeal Board (Com.of.Pa.)”, McDonough alleged that he witnessed psychological injuries due to loud and frequent criticisms levelled by his supervisor noisily in front of other employees. A medical expert certified that due to the bad treatment met out from the supervisor, McDonough witnessed from panic disorder related with anxiety disorder, hyperventilation, and depend personality disorder. Though lower court turned down the McDonough allegation, the Pennsylvania Commonwealth court rejected the lower-court finding and remanded the verdict, finding that McDonough’s accusations that he witnessed psychological injuries due to loud, frequent verbal attacks adequately corroborated a “mental/mental” claim. (Burdick, Berkowitz & Francis 2013:4). Under the current law, the employers may witness accountability for allowing bullying in the workplace, employers are to be careful in their treatment of alleged bullies. By isolating a bully by directing the bully to seek counseling to address the abusive demeanor and due to that, the bully may witness from psychological issues, which could result in probable accountability under the state disability laws or under the Americans with Disabilities Act (Burdick, Berkowitz & Francis 2013:4). In “Gliha v. Butte-Glenn Community College Dist., 12 –cv-02781 (E.D.La. June14 ,2013)”, an erstwhile employee claimed that his termination was in infringement of California’s Fair Employment and Housing Act , which forbids negative employment action on the footing of perceived or actual disability , as his supervisor blamed him of having “ passive-aggressive” disorder and that this view kindled his termination. Claimant also alleged that supervisor also engaged in bullying. The Eastern District of California turned down the employee’s disability claim explaining that no evidence was offered by the employee about the passive-aggressive disorder, and plaintiff also did not corroborate that whether the passive-aggressive disorder is included as a disability under the FEHA. (Burdick, Berkowitz & Francis 2013:4). In Soto v. El Paso Natural Gas Co , the Court of Appeals of Texas reversed the summary judgment made by the lower court and found that the supervisory employee so-called demeanor, including touching and mocking a female employee following her reporting to duty after a second mastectomy and reconstructive surgery as bullying in the workplace. In “Takaki v. Allied Machine Corp.”, the Hawaii Court of Appeals reversed the earlier summary judgment and held that supervisor’s remark about the claimant as “ lousy f-king Jap” as workplace bullying. In “Vasarhelyi v. New School for Social Research”, the appeals court of New York affirmed an intentional infliction of emotional distress (IIED) claim initiated by an erstwhile university controller and treasurer who had questioned the university’s president’s claim for reimbursement of his business and personal expenses as workplace bullying (Yamada 2013:165). The court observed that due to president bullying action, the claimant had been subjected to lengthy word war, humiliation over her spoken English capability and the comments on her chastity and honesty. In Polk v. Inroads/St. Louis, Inc, an IIED claim was reinstated by a Missouri appeals court where the plaintiff was exposed to “an intended strategy to cause … emotional injury “after the claimant revealed misrepresentation by her supervisor (Yamada 2013:165). However, there are instances, here courts have taken a lenient view and in Turnbull v Northside Hospital Inc., it was found by the Georgia Court of Appeals that the said demeanor, including “yelling with contempt and anger, slamming doors and crying was rude and childish but that “it is not the kind of demeanor for the which the law offers a remedy (Yamada 2013:165). Comparison of Bullying in Workplace between USA and UAE In UAE, bullying in the workplace is a common phenomenon. If a boss is a bully, he may pick up some particular employee for unusual and cruel punishment. Some bosses enjoy harassing those who work for them and employ them as models to keep the other employees in terror. Managers in UAE have unlimited authority, and it is a usual style for them to be ill-mannered and discourteous, employ bad language, bully and berate their teams. Unfortunately, there are no laws available in UAE at present that forbid workplace bullying. However, a female employee can seek legal relief under Article 359 of UAE Penal Code, which provides that whosoever indulges to dishonor any woman by actions or words in public place or street, shall be punished with an imprisonment of one year and with a fine not exceeding 10,000 Dirhams. It is really pity that UAE laws extend protection only to women as its laws show gender discrimination. Though, both USA and UAE have no specific law that forbids workplace bullying, but in USA, efforts are being made by about 25 states to introduce the New Health Workplace Bill to stop bullying in the workplace. Further, in USA, one can claim relief under tort laws and civil right laws. However, at present, no such legal recourse is available to the claimant under UAE laws. As employees from various nations are working in UAE, to instill confidence, it is necessary to introduce a policy which obviously stipulates the definition of harassment, and employers should be held accountable for bullying and harassment behavior. Suitable workplace policy should be introduced, which should focus on the prevention of bullying in the workplace. A new law should be introduced by the UAE administration to prevent workplace bullying by offering definition to workplace bullying, the rights of employees against bullying and punishment and fines for employers who disregard the law (Khairallah 2013). Recommendations Employer should act as a role model by signifying that bullying is not tolerable at any form in their organization. This requires leading by illustration and establishing formal policies and procedures for dealing with bullying. Such policies should be clearly implicit by both employees and management and should be included in employee training programs at all stages. To adhere with federal and state laws, employers have dealt with illegal guises of discriminatory demeanors for decades. Following is some of the examples of ideal comprehensive approach to reduce workplace bullying. To evaluate pre-initiative pervasiveness and the starting position To introduce a suitable anti-bullying policy To offer training to internal Expert team to counsel the bullied employees and to offer them with informal resolution To establish formal and informal implementation procedures To offer education to all the staff, managers and executives about the negative side of the workplace bullying. To introduce initiatives into evaluation and hiring process As per WBI Employer Bullying Policy survey (2012), only just 5% of the employers had necessary procedures and policies to forbid workplace bullying in place. About 62% of the employers in USA had no workplace bullying policy at all. (Namie 2013). Source- WBI Employer Bullying Policy survey 2012 Conclusion Despite the fact that at present, there is no existing law, which expressly forbids bullying in the workplace in USA, unchecked bullying practices in the workplace may land the employer accountable for liability under various state and federal laws and may hinder the productivity in the workplace. Thus, employers are cautioned against keeping silent or encouraging such practices in the workplace indirectly as may invite huge fines levied against them by the courts in USA. Under the current law, the employers may witness accountability for allowing bullying in the workplace, employers are to be careful in their treatment of alleged bullies .Employers to address and to discourage anti-bullying demeanors, mainly through the introduction of internal policies and procedures supporting mutual respect in the workplace and by introducing appropriate training thereby emphasizing on disheartening abuse in the workplace. Espinoza v. County of Orange verdict stands as a red flag for employers in USA explaining how employer‘s may witness accountability for not adequately resolving the workplace bullying. List of References Burdick J, Berkowitz A & Francis, V. (2013). Works Place Bullying: What Should You do to stop it. [online] available from < http://www.dechert.com/files/Publication/8e73534f-0dd4-441c-be5d fa9f95bcc596/Presentation/PublicationAttachment/898761c1-3d79-4ca2-86cd-ffd10a979dfe/Workplace%20Bullying%20-%20What%20Should%20You%20Do%20To%20Stop%20It.pdf> [accessed 27 November 2014] Einarsen S, Hoel H, Zapf & Cooper, C. (2003) Bullying and Harassment in the Workplace: Development in Theory, Research. London: CRC Press Fox, T. (2012). Readers Advise on Workplace Bullying. [online] available from http://www.washingtonpost.com/blogs/ask-the-fedcoach/post/readers-advice-on-workplace-bullying/2011/03/04/gIQAzcDZ7R_blog.html > [accessed 28 November 2014] Friend, M A & Kohn, JP. (2010) Fundamentals of Safety and Health. New York: Bernan Press Khairallah. (2013) Employee Harassment. [online] available from < http://www.khairallahlegal.com/blog/uae-law/uae-labour-law/employee-harassment/comment-page-1/> > [accessed 29 November 2014] Namie, G. (2013) Workplace Bullying. New York: Workplace Bullying Institute Parker-Pope, T. (2008) When the Bully Sits in the Next Cubicle. [online] available from < http://www.nytimes.com/2008/03/25/health/25well.html?_r=0> [accessed 28 November 2014] Richards, H & Freeman, S. (2012) Bullying in the Workplace: An Occupational Hazard. Australia: MP Publishing Yamada, D. (2013) Workplace Bullying and the Law: A Report from the United States. Workplace Bullying and Harassment, 165 Read More