Legal Checklist: Dr. Namie, could you give us a brief explanation of workplace bullying? How would you define it?
Dr. Gary Namie: Workplace bullying is a destructive phenomenon—it’s a form of abuse where the abuser is on the payroll. It causes serious harm.
We use the term workplace bullying to distinguish it from teasing or roughhousing, and we define it as repeated mistreatment by one or more people, which takes the form of verbal abuse, intimidation, threats, humiliation, or work sabotage, and which indeed causes health harm for the individual targeted.
In that regard, workplace bullying has nothing to do with work and everything to do with the bully’s personal agenda; it disrupts the person’s career and their family life, it’s destructive to co-worker relationships, and it absolutely impairs productivity and leads to turnover, absenteeism, and litigation. So it’s a huge problem.
LC: Just how common is workplace bullying? It would seem that to deny the phenomenon is to ignore the statistics-don’t we have a good idea by now how many people get bullied?
GN: Workplace bullying is an epidemic in America; that’s how prevalent it is. We know that 35% of adult Americans claim to have experienced bullying, either currently or in the past, as we just defined it. That’s 54 million Americans in the workforce. So that’s not an unknown phenomenon, and it’s not a rare phenomenon, and it’s not a subjective phenomenon. Denial flies in the face of the actual numbers.
LC: Can you give us examples of the types of behaviors that would be classified as bullying? What types of bullying are out there?
GN: In our first major book, The Bully at Work, we describe bullying tactics in terms of four themes:
1) The Screaming Mimi is a person who chooses to yell and curse in a public setting. This case is actually somewhat rare, but it is, in a way, the prototypical bullying scenario.
2) The Constant Critic family of bullying tactics concerns what people do behind closed doors. Since the majority of bullies are bosses, they are able to evaluate and appraise their subordinates. So when they want to bully a target, what they typically do is abuse the performance appraisal system. They get a person behind closed doors and accuse them of bumbling incompetence, when, in fact, that person is more talented, they have more technical skill, they are better-liked, and they are more ethical and honest than the bully, but from the bully’s perspective, this person poses a threat, and therefore they feel the need to attack that person.
3) The third category is the Two-Headed Snake family of tactics. This involves rumor-mongering and back-stabbing between coworkers. From the boss’s point of view, this may mean pitting worker against worker, prohibiting someone from talking to somebody else or helping somebody on a task, and, sadly, isolating the worker. You may recall in the movie Office Space, the fellow who kept having his desk moved until he wound up in the basement-that’s exactly what bullies do. They will actually move a bullying target from being co-located to being isolated and eventually being thrown out to some warehouse in another building.
4) The fourth family of tactics is about withholding things that people need. So we call these the Gatekeeper family of tactics. For instance, I might deny someone training, even though I’ve just given them a new job for which they have no skills, and they really need to be taught how to do it. Still, I’m going to tell them “You’re on your own.” I’ll deny them training, but I’m going to let everybody else attend training. That discriminatory element makes it bullying. I’m going to make sure everyone else has the resources they need, but the target doesn’t get training, the budget, or the right equipment. I will deny them every resource they need to succeed, so I’m deliberately setting them up to fail.
LC: How often does the workplace power structure affect workplace bullying? Is it the case that the most common dynamic is between supervisor and subordinates? Or is this something that happens with co-workers at the same level of seniority?
GN: We know the majority of perpetrators are bosses, 72%. So it’s primarily top-down, but don’t discount the 18% of cases where one or more co-workers are the perpetrators. There is a phenomenon called mobbing coined by the psychologist Heinz Leymann that describes how an incident that begins with a single instigator can quickly grow to include multiple perpetrators. So workplace bullying and mobbing can be synonymous.
LC: Would it be fair to say that workplace bullying is a new phenomenon? Or is awareness of the issue in fact on the rise? Are there perhaps cultural changes that have led to the proliferation of the phenomenon over the last few years?
GN: The phenomenon’s not new. Workplace bullying has been around since time immemorial, without a doubt. It began to be studied by social scientists in the 1980s, and now the research has extended to include neuroscientists, so it’s quite a burgeoning field. You’ve got epidemiologists, social scientists, management professors, so that’s helped to raise awareness, at least within the academe.
The Workplace Bullying Institute has been around for 16-and-a-half years with its stated goal of raising public awareness. I have to say that I am quite proud that a 2013 poll that asked American executives about their awareness of “workplace bullying” found that 68% were aware of the term and considered it a serious problem. So I think we are making progress, but there is a strong tendency to deny that bad things happen to individuals who never invited it upon themselves; in other words, to blame the victim rather than the perpetrator. We still have much work to do.
LC: It sounds like a significant portion of executives and managers acknowledge the problem, yet there remains some portion of management that is either unaware or perhaps even denies the existence of workplace bullying. Is this a case of awareness, or is there an organized movement arguing against the concept?
GN: Employers who have a vested interest in perpetuating bullying in their workplace because it serves some internal interest are likely to discount the severity of bullying and even deny that it exists. They may say that the phenomenon is too subjective and cannot be defined (even though I just defined it for you). They want a single definition that conforms to all definitions whether within the laws or as defined by researchers. They’re going to deny the science and say, “Because there is no law, we’re not going to deal with it, and furthermore, it doesn’t exist.”
So in a way, it’s a tautological circle where these organizations do nothing, and then seek to justify doing nothing, but that ignores the harm to employee health and the costs to productivity. It’s to these employers’ advantage to view the situation in terms of bottom-line indicators, but then they may have end long-standing relationships with the bullies.
LC: We’re interested in how targets of workplace bullying manage their situations. How often do targets of workplace bullying generally report the bullying situation to their employer?
GN: We know that targets feel terribly ashamed, and they feel guilty that they let bullying happen to them. Shame and guilt are different, but experiencing these two overriding emotions, most targets of bullying are paralyzed, and very few take action. For instance, only 15% actually ever file a complaint, and three-quarters of these targets tell only one person and do nothing else.
Targets who tell employers often expect that employers will do something, and employers have a terrible record; but at the same time, targets have a terrible record when it comes to reporting the issues because of the shame involved. Even though workplace bullying is an epidemic, it’s a silent epidemic that needs to be discussed more. But first, targets need to feel free and less ashamed.
LC: What are the most common indicators of a toxic environment where bullying is actually taking place? How do employers or co-workers realize that workplace bullying is going on?
GN: At the macro level, the organization will know that bullying is happening when there is disproportionate turnover across divisions or units, or that a few supervisors seem to be suffering a higher turnover rate than anyone else. It seems so simple, and yet few people are watching for that turnover, unfortunately.
Among your colleagues, you will notice a tremendous emotional shift in the targeted co-worker. That person will go from, perhaps happy-go-lucky and confident, to absolutely devastated. Their body language will reflect it. The loss of positive communication from them should be noticeable to you if you’re paying attention.
Supervisors should have a healthy relationship with their employees so that they are aware of these changes. That’s a big part of our manager training: learning to pay attention to people, so that you get a sense of normality for a given individual. And then when that normality shifts, something bad is happening that needs to be addressed.
LC: What is the typical response of employers at present to workplace bullying, and what should employers be doing?
GN: Employer response is entirely different from what they should be doing, unfortunately. What typically happens is that months of suffering in silence go by for the bullied target and then eventually the target may decide to complain in a very general way to Human Resources. That fateful decision likely sets the path to termination. Employers tend to retaliate for daring to complain about a manager who has a personality that is seen as destructive or abrasive.
In reality, the target doesn’t know how to articulate the complaint correctly, to talk about the risks to the bottom line and how the bully is destructive to the organization. They may have gathered extensive documentation, but it will be garbled and unorganized because of the emotional flood. The employer response, sadly, is positive in less than 2% of the cases.
That should not be a surprise, as HR is a management support function, and most bullies are managers. HR’s role is to be good at compliance with existing policies and laws. But as there are no laws, few companies have workplace bullying policies, and often these are inadequate because there is no law to respond to, and so HR doesn’t have a solution in hand. These cases are kept at the HR level, and executives rarely hear about destructive personnel, so they fail to respond. We can’t blame them for that.
Workplace bullying is just like sexual harassment in that it is unwanted and uninvited, and yet because harassment is illegal, employers must respond affirmatively and quickly, and cannot be negligent. With workplace bullying, they can delay, obfuscate, and be negligent without risk, and that’s exactly what’s going on.
LC: Could you tell us more about what steps targets can take to protect themselves. How should they proceed in terms of approaching their company? What would your advice be to someone who is presently experiencing workplace bullying?
GN: What we advise, in order to reverse the health decline, is to actually engage in a fight-back strategy. This fighting back does not involve interpersonal confrontation. Employees can mount an impersonal business case that the bully is affecting the organization. And for that they need to assemble the evidence. They need to document incidents. (And it’s really important that documentation never fall into the hands of the employer-don’t document on company computers.) When you get a hateful email from a manager or co-worker, store it. You’re going to need to gather facts about the incident, not the severity, but rather the date, time, place, and who was around, who witnessed. Then hold on to that evidence as you build your case.
Also try to calculate the cost for the turnover that bullying creates. There are replacement costs for every person bounced out of the workplace by bullying. Try to estimate the cost of recruitment, especially if it’s a high-level position with headhunter fees involved, and include advertising for the position. Take the salaries for individuals on the hiring panels and the interview process, and those hours can be considered non-productive hours, so you can calculate the cost of interviewing candidates. When a person is hired, try to calculate the cost of training or lost proficiency. All that becomes the turnover cost multiplied by the total number of people who have been driven out.
Absenteeism should also be calculated, as we know most people exhaust their paid time off if they are bullied, and then some. If there have been other complaints about bullying, people may have sued or complained and will have been paid severances or settlements to be silenced. Usually those settlement amounts are gag-ordered, but you can still call the former colleague and ask for a ballpark figure to find out how much was paid out.
Hopefully at this point you’ve got a job lined up, or you’ve been looking, because you shouldn’t necessarily expect a positive outcome! Still, now that you’ve calculated the dollars and cents, you want to identify a high-level manager who has not supported the bully in the past. Schedule an appointment. To get 15 minutes, say you have some “productivity enhancement” ideas, ways to make us more productive, make us more efficient and save money. Deliver this report as if you were an outside consultant, without tears, without emotion, without guilt or shame.
Of course, this only works in a large multiple-layer organization, not a mom n’ pop shop. In that case, none of these tactics may work. You might be better off simply leaving and taking your chances in the market. Even if the market is horrific, you will be better off if you are safe.
LC: You mentioned preserving testimony from co-workers by email. Might it also be possible to record any abusive language?
GN: To bolster your case, you’ll definitely want a paper trail of abuse. One of the great problems with bullying is the fear that co-workers have of testifying or helping. So, long before there is any kind of a formal procedure or formal complaint, it would be great if you can get statements from co-workers about what they observed-not their opinion but simply a statement that validates that your incident report is accurate: “You were there. Tell me what you saw.” These statements should be maintained with the date and time. At the earliest time possible, you want to have them validate an event. You will create an incident report. And get that time-stamped. Ask them to send a written copy, perhaps through their personal email.
Now in some states, you can audio or videotape a conversation unilaterally. It’s called the one-party consent law. In a one-party consent state, it is possible with so many different recording devices to capture audio or video that would be irrefutably time-stamped and stored safely. That’s what you need to do; you need to make it, basically, an extremely strong case.
LC: Why isn’t workplace bullying illegal?
GN: American employment law is based on British common law, which has as an underlying premise the master-servant relationship in the workplace. In the Sixties, the Civil Rights Act, for the first time, prohibited discrimination by employers, and that included sexual harassment and racial discrimination. This evolved in case law to include a hostile work environment being outlawed in the U.S. if it was based on illegal discrimination and the target’s membership in a protected group.
Now that’s all well and good, but the conditions are such that when a protected person is harassed by another member of this protected group, the law goes haywire. For example, a woman is protected by virtue of gender, but not all the time. If a woman harasses another woman, the law falls apart, and you won’t find a lawyer to take a woman on woman harassment case, except in the rarest of circumstances.
And if there is no protection declared by law, then everything else is allowed in the American workplace. We have the fewest protections in the workplace of all industrialized nations. Emotional abuse or psychological violence in the work environment that is not attached to membership in a protected status groups as defined way back in the Sixties is not something you can bring a lawsuit against. So that is why we need the Healthy Workplace Bill.
LC: What does the Healthy Workplace Bill propose as a legislative solution, and how would someone get involved in supporting that legislative effort?
GN: Our Healthy Workplace Bill is actually very employer-friendly. It says that an employer may escape litigation or liability if indeed they took reasonable steps to prevent and correct the bullying in the first place. So, in other words, be proactive and you’ll get out of this mess. The bill is incentive to employers to do something voluntarily that they’re not doing now.
The term “workplace bullying” does not appear in the Healthy Workplace Bill. It is instead called “abusive conduct” or “conduct which creates an abusive work environment.” Physical or psychological harm must be demonstrated by the plaintiff, and they must have taken advantage of any employer policy, if indeed there has been one in place, before they can sue.
The hurdle is made even higher, as the individual must find a private attorney to represent the person’s interest; there is no involvement of the state or federal government in filing a complaint. We only want the most serious cases to come forward, not a flood of litigation. We want to push employers to do what is right for both the employees and the employer. That’s the goal of the bill.
An employer can still fire an employee for poor performance or illegal conduct, so there’s no hiding behind the bill for a bad worker. Employers are free to discipline, terminate, to lay off workers-we’re not interfering with that. However, they may not retaliate against a worker for filing a complaint about abusive conduct. Just as with harassment law, retaliation is also an independent complaint.
Another positive aspect of the bill occurs where there is an executive with a long-standing relationship with a bully. The executive would like to have an established and reasonable basis to discharge that bully. Under the Healthy Workplace Law, the exec could tell the bully, “I’ve got to let you go. You’re a liability for me-I’m facing too many lawsuits. I’ve got four people you’ve tormented, and each one could bring a very expensive lawsuit, so I’m going to terminate you.”
The Healthy Workplace Bill has been introduced in 25 states since 2003. So there’s a good chance that the bill is active in your state and you can get involved. And if it hasn’t been introduced in your state, please help it get introduced. Go to the website healthyworkplacebill.org to find out. We have state coordinators in 35 states. We’ve had hundreds of bills introduced, all driven by citizen-lobbyist volunteers like you. We don’t give money to politicians, nor are we beholden to politicians. We’re thankful for legislative sponsors, but they’re just doing what they should be doing on behalf of their constituents. After all, it is an untenable position to actually defend abuse at work. We’re the last industrialized nation to address workplace bullying. America’s behind, so we need to catch up.
About Dr. Gary Namie: Dr. Namie is a social psychologist and widely regarded as North America’s foremost authority on workplace bullying. In 2007 and again in 2010, Dr. Namie wrote, and Zogby International conducted, the most frequently cited, largest-ever, scientific U.S. survey of workplace bullying. Along with his wife, Ruth, they wrote the popular books, The Bully-Free Workplace (Wiley, 2011) and The Bully At Work 2nd ed. (Sourcebooks, 2009). He has 21 years university teaching experience in management and psychology, including the University of Southern California. He was a corporate manager for two regional hospital systems. He won national and college campus teaching awards. He now directs the only U.S. research and education organization with a focus on bullying at work, the Workplace Bullying Institute. The media regard Dr. Namie, after 1,000+ interviews, as the go-to expert. He leads advocates to enact the anti-bullying Healthy Workplace Bill in US states. He serves as expert witness in bullying-related legal cases. Work Doctor®, the consulting firm, created the workplace bullying specialization. Visit the Workplace Bullying Institute at workplacebullying.org.