“Paul, I checked into this. I want to remind you both that the three
of us know Rose’s medical issues on a limited need-to-know basis. That
said, Rose needs a five-minute radiation treatment daily for six weeks.
Paul, she schedules this so she’s their first appointment when they open
at 8:00 in the morning and gets to the office by 8:30, which is another
demonstration of her work ethic. She’s finishing the second of six weeks
of treatment. She has lunch at her desk to accommodate the thirty-min-
ute morning delay, so it’s hardly a crisis.”
Ray ignored what Jess said, continuing like the drill sergeant he was.
“I expect everyone in my department to be at work by 8:00 and work
until 5:00 or 6:00 at a minimum. Rose refuses to schedule these appoint-
ments after work or to work past 5:00.”
“I checked into that as wel . The radiation oncology department
schedules appointments between 8:00 and 4:00 and they don’t sched-
ule appointments at lunchtime. We need to accommodate Rose or any
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212 ❚ BEATING THE WORKPLACE BULLY
other employee who has a disability. Expecting more than ful -time work
isn’t accommodation.”
Ray’s lips tightened. “Accounting has deadlines.”
“So does HR, but let’s get to the real problem here,” Jess said.
“She has cancer, Paul, and both federal and state laws require us to
accommodate any employee with a disability. What’s more, this goes
beyond legal issues. Rose has earned our loyalty with five years of solid
performance.”
REAL-WORLD TACTICS THAT WORK
As Jess demonstrated, effective human resources professionals erect
a bulwark against Darth Vader clone supervisors and other bullies.
Strategy #1: Make a Business Case
By making a business case, HR can convince the organization’s lead-
ers to stop paying the bottom-line costs for bullying. Bullies demor-
alize employees, reducing employee productivity. Abusive work envi-
ronments have other serious consequences for employers, including
higher turnover and absenteeism rates and increases in medical and
workers’ compensation claims.
In Rose’s case, Jess was able to point out to the CEO and the
supervisor that federal and state law protected the employee. Jess also
reminded the CEO of the ethical reasons for supporting a long-term
employee.
Strategy #2: Create an Anti-Bullying Policy
Such a policy can be standalone or can be added to the company’s
current harassment policy. It could, for example, say that harassment
of any individual, not just those in protected classes, will not be toler-
ated. There’s a sample policy in Chapter 25. The Society for Human
Resource Management’s 2011 survey reports that 56 percent of all
companies have an anti-bullying policy.
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What Human Resources Can and Should Do ❚ 213
Strategy #3: Intervene Directly and Provide Training
HR can intervene directly with bully managers, supervisors, and
employees. It can also provide managers and supervisors with the
training they need to make certain that they understand their role in
preventing and addressing bullying. Without training, some manag-
ers and supervisors view allegations of bullying as a messy hot potato
they prefer to dodge.
Strategy #4: Train Employees
By providing employees at all levels with the skills they need to handle
verbal confrontation, conflict, and bullies, they will not only learn how to deal with the situation, they will know that management
stands behind them.
Strategy #5: Provide an Effective Grievance Channel for
Reporting Bullying
With this mechanism, HR professionals can listen to targets and wit-
nesses who voice concerns about bullies, keep what is said as confi-
dential as possible, evaluate the evidence presented, and act on what
they’ve heard to provide targets with solutions or at least options.
When provided credible evidence, HR can investigate allegations and
recommend discipline, improvement-oriented coaching, or termina-
tion for bullies. HR can ensure that targets aren’t met with disbelief,
him?” or “That’s just Darth.”
Strategy #6: Audit the Organization’s Internal Culture
In this way, HR can assess whether the organization promotes respect
and dignity. HR can sponsor regular employee surveys to uncover hot
spots and trouble zones.
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214 ❚ BEATING THE WORKPLACE BULLY
Strategy #7: Arrange 360° Reviews
Periodic reviews of managers, supervisors, and other professionals pro-
vide those interacting with bullying managers, supervisors, or peers
the opportunity to provide confidential feedback concerning problem
behavior. In 360° reviews, seven to eleven individuals who interact
with the review subject respond to questions such as “What can you
say about how this manager works with employees and peers?” “How
does this manager handle leadership?” “What can you say about how
this manager communicates, and handles those with a different view-
point?” and “Is this manager fair and reasonable?” If bullying exists,
a well-done 360° review generally uncovers it.
Strategy #8: Provide Mediation
HR professionals can act as intermediaries between alleged bullies
and their targets to create agreements for future communication and
interaction. If the bully violates the mediation agreement, it makes
disciplining or terminating the bully easier.
Strategy #9: Remove Bullies from the Organization
Although this is difficult and time-consuming, if presented with cred-
ible evidence, HR can make the case to fire the bully.
Your Turn: Where Are You Now?
1. What did the HR manager, Jess, do wel ?
2. What traps did Jess avoid?
3. Was there a trap she fell into?
4. How did Jess handle Ray’s snide comments?
5. What other tactics did Ray use?
6. What could Jess have done even better?
7. Whether you’re an HR professional or not, write a business
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What Human Resources Can and Should Do ❚ 215
case to convince your senior management that bul ying
needs to be addressed.
8. If you’re in HR or senior management, institute an anti-bul y-
ing policy or add language to your current harassment pol-
icy that states that any harassment of any individual, not just
those in protected classes, will not be tolerated.
9. If you’re in HR, design a program for providing managers
and supervisors with training concerning their role in pre-
venting and addressing bul ying. If you’re not in HR, petition
for such a program.
10. If you’re in HR, arrange training for all employees on han-
dling verbal confrontation and workplace bul ies. If you’re
not in HR, petitio
n for this training.
11. If you’re in HR, create an effective grievance channel for
targets and witnesses.
12. If you’re in HR or senior management, arrange an audit of
your organization’s internal culture and assess whether your
organization promotes dignity and respect.
13. If you suspect a bul y exists in your organization, arrange or
petition for a 360° review to uncover credible evidence.
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27
BULLYING ISN’T ILLEGAL—
OR IS IT?
The significant problems we face cannot
be solved at the same level of thinking with
which they were created.
—ALBERT EINSTEIN
WHEN ACCOUNTING DEPARTMENT SUPERVISOR Ray com-
plained to the CEO that accommodating an employee with
a fight on her hands. Ray had a practice of toeing the legal line yet
making an employee’s life so miserable, he or she quit. Jess thought Ray
was a bul y, but he didn’t act out in front of the CEO, and his department
produced great results.
Also, although Jess reminded CEO Paul that federal and state law
required their company to accommodate a disabled employee, she
knew that Paul cared more about Ray’s good results than he did about
employees. She’d tried to fix the situation, but Ray had complained
about her, and they’d both wound up being “talked to” by Paul.
After the skirmish, as she and Ray stood up to leave, Paul said, “Jess,
can you hang around for a moment?”
“Sure.” She watched Ray leave.
“How come this escalated to my level?”
“Ray thinks he can ignore the law and Rose’s years of good work, and
pressure her into working longer hours or me into finding her a position in
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Bullying Isn’t Illegal—or Is It? ❚ 217
another department.” Paul’s eyes narrowed. Yep, Jess thought, to save
Rose’s job, I have to figure out a way to get Paul to realize that quality
employees deserved company loyalty and that Ray’s results come at an
expense.
“Jess, I expect you to keep our company in legal compliance. But we
all depend on the accounting department being ful y staffed. And you,
as HR, are support to that department. Understood?”
Jess left, knowing the Americans with Disabilities Act’s protection for
Rose might not shield her from Ray’s bul ying.
According to mainstream thought, bullies have virtual immu-
nity because no laws, other than the California’s Workplace Violence
Safety Act, specifically outlaw bullying. Bully arrogance, however,
leads many bullies to step over the line into actions that are illegal.
When they do, targets can take them to court and ask judges, regula-
tory agencies, or juries to take action against the bully.
OVER-THE-LINE BEHAVIOR: ILLEGAL DISCRIMINATION
ALTHOUGH MIKE ATTACKED every employee, when he yel ed “You get
your big, fat, black ass back to your desk,” at Cynthia, he picked on the
wrong woman. Cynthia filed a formal complaint with the Human Rights
Commission, identified witnesses to Mike’s verbal attack, reported that
Mike had screamed the words “black ass” at her twice, and noted
that no other African American employees worked for Mike. Making
matters worse, he fired Cynthia, cal ing her an “entitled b----,” handing
her the ability to add unfair termination and retaliation to her original
complaint.
Unaccustomed to being chal enged and convinced of his domi-
nance, Mike forgot that while he ruled within his organization, he didn’t
rule outside regulatory agencies. When the human rights investigator
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218 ❚ BEATING THE WORKPLACE BULLY
cal ed, Mike blasted him, insisting he could call Cynthia or any other
employee anything he wanted.
As Cynthia demonstrated, a bully who attacks someone protected
by discrimination statutes—federal, state, or municipal—can unleash
the power of the state or municipal Human Rights Commission or
Equal Rights Commission or the federal Equal Employment Oppor-
tunity Commission against the bully. The federally protected cate-
gories include sex, race, color, religion, national origin, age for those
forty and older, pregnancy, and disability. State statutes, municipal
ordinances, and key federal executive orders often create other pro-
tected classes, such as sexual orientation.
OVER-THE-LINE BEHAVIOR: ATTACKING AN EMPLOYEE
FOR EXERCISING A PROTECTED RIGHT
The Department of Labor (DOL) enforces more than 180 federal
laws that protect employee rights. Bullies who unfairly retaliate
against an employee who voices concerns related to these employee
rights may find themselves trumped by a federal or state regula-
tory agency. These rights include the right to organize and to bar-
gain collectively, to receive overtime pay if a nonexempt employee,
to safety and health protection in the work environment and to
related workers’ compensation, and the right to privacy of personal
information.
For example, the Fair Labor Standards Act protects employees
from bully bosses who unfairly order employees to work overtime
without allowing them to record their extra hours on their time cards.
An employee can take notes that document overtime, such as time-
stamped emails made shortly after arrival and just before departure
or altered time cards, to the Department of Labor if he was fired for
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Bullying Isn’t Illegal—or Is It? ❚ 219
attempting to log overtime hours. Over a period of time, he may be
able to demonstrate a bully supervisor’s pattern of coercing employ-
ees not to claim overtime. In a DOL investigation, other employees’
emails will show evidence of more than eight hours of work, even if
their time cards show only eight-hour days.
The Occupational Safety and Health Act, administered by the
Occupational Safety and Health Administration (OSHA), protects an
employee’s right to voice concerns over unsafe working conditions.
The act assigns employers a “general duty” to provide employees with
a workplace free from recognized, serious safety hazards. Unfortu-
nately, this “general duty” clause applies only to conditions causing
or likely to cause death or serious physical harm and does not apply
to psychological or emotional harm or emotional upsets or anxiety.
An employee who protests “that [something] isn’t safe” and then
is told “if you won’t do it, I’ll find someone who will” can document
the incident. In an OSHA investigation, other employees’ testimony
generally confirms that employees learn that they need to cross the
line from safe to dangerous to keep their jobs. For example, the bully
foreman in a construction company told several laborers, “We need
to move fast. You don’t need those safety be
lts.” When one worker
fell, it led to a safety investigation. When she blew the whistle, OSHA
interviewed all laborers and found the pattern.
The National Labor Relations Act (NLRA) protects an employ-
ee’s right to engage in concerted activity; that is, two or more employ-
ees may act together for their mutual aid or protection concerning the
terms or conditions of their employment. When a company fired an
employee for describing his supervisor as a racist in Facebook post-
ings to a coworker Facebook friend, the employee protested that the
NLRA protected his right to protest illegal discrimination. The state’s
Human Rights Commission agreed, investigated, and found a pattern
of illegal discrimination on the part of a bully supervisor. Although
bullying wasn’t illegal in that state, discrimination was.
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220 ❚ BEATING THE WORKPLACE BULLY
OVER-THE-LINE BEHAVIOR: RETALIATING AGAINST
AN EMPLOYEE FOR EXERCISING A LEGAL RIGHT
Bullies expose themselves when they punish employees for exercis-
ing their rights. If your bully demotes you or takes away benefits or
perks, and you can prove he is punishing you for protecting your legal
rights, you can sue. Fifty-seven percent of all plaintiffs win retaliation
lawsuits.
A Microsoft salesperson, in 2014, received an award of $2 mil-
lion when Judge Tim Sulak affirmed a jury’s 12 to 0 decision that key Microsoft managers and supervisors had created a hostile environment for the salesperson by undermining his work, making false
accusations against him, blocking him from promotions, and other-
wise marginalizing him ( Michael Mercieca, Plaintiff v. Tracey Rummel, and Microsoft Corporation, Defendants). Sulak found the tech giant guilty of
“acting with malice and reckless indifference,” despite Microsoft’s full-
court press.
In 2012, a victimized employee fired after he reported abusive
behavior by his boss ( Absey v. Echosphere LLC, Dish Network Services LLC
and Marshall Hood) won $270,000 from a Minnesota jury. Absey proved
that Hood verbally and physically abused him. The court ruled that
Dish didn’t listen to Absey’s complaints and failed to protect employ-
ees from Hood’s violent outbursts.
OVER-THE-LINE BEHAVIOR: CRIMINAL ASSAULT
According to Kamer Zucker Abbott partner and attorney Eddie