Is Your Office Bullyproof?

The international headquarters for the Campaign Against Workplace Bullying sits in a strip mall between a Chinese restaurant and a Subway in a suburb north of San Francisco. On this wet January morning, the four people attending this daylong seminar in the campaign's one-room office will relate stories of callous supervisors and coldhearted co-workers, of isolating workplace environments and grotesque supervisor favoritism, of office policies seemingly designed to ostracize them.The campaign's married co-founders, Gary and Ruth Namie, will talk just as much as they will listen -- offering each client almost evangelical affirmation, all "Yes, that's right!" and "You can say that again." Gary is a large, round man in a Hawaiian print shirt. His rosy cheeks, generous smile, and white beard, combined with his penchant for slightly manic riffs about the importance of compassion and empathy, make him seem an unlikely cross between Santa Claus and Patch Adams. Ruth, a psycho therapist, is softer in both voice and appearance, dressed in matching knit separates.By the end of the day, the Namies will have demonstrated as much as preached one key to "bullybusting": "Don't believe the lies." It is their admonition to the browbeaten -- whom the Namies call "Targets" -- to refuse personal criticism. If at work these people find nothing but hostility, in the workshop they find a couple who offer nothing but support.The Namies estimate they've talked to thousands of people and have sold 700 copies of their book, BullyProof Yourself at Work!, a copy of which is provided to those who pay the $55 fee for the workshop. Gary speaks optimistically of another book and perhaps a radio show. They have begun a national tour that will last through the summer, speaking to unions and women's groups, organizations the Namies see as "natural allies." The workshops are merely one aspect of a campaign with the ultimate aim of passing legislation to protect the rights of those bullied at work.I had come to the workshop expecting to hear grown-up versions of schoolyard cruelty -- tales of yuppie thugs who played keep-away with some poor soul's cell phone, or forced him to use his own credit card to pay for lunch. I assumed that the tellers of these tales would be basically the same people I had known to be the targets of playground bullies: quiet, smart outcasts shut out of the system. I pictured the workshop as a reunion of a fifth-grade science club. But as I listen to the Targets tell their stories -- and to the Namies' enthusiastic responses -- what most sets these people apart from the lonely kids I remember from school is the bitter obsessiveness that drives them. They aren't being ostracized because they have more esoteric interests than their co-workers -- their main interest is their co-workers. When Gary gently counsels one woman, Jean, "You're in a cycle of despair," her response is curt. "No," she says, "I just want to get even."It's also remarkable that missing from the Targets' stories is the real star of any schoolyard drama: the bully. There's no colorful Nurse Ratched here, not even a Mr. Burns. Invariably, there are multiple bullies. Layna talks about "this one person in the office who had rage attacks and made all kinds of problems for everybody," and also "this one woman, who had threatened me," and the woman's sister, "who had also threatened me." Mostly, though, they speak of "them."Jean's ordeal started on her first day: "They didn't want me from the beginning. No one introduced themselves to me." She says she's received numerous commendations from customers; it's her co-workers who complain. She has been forced to retype reports and has been unfairly reprimanded. Poignantly, she recalls Christmas, when "they were handing out gifts to everyone but me." Jean relates her experience in familiar terms -- she and the Namies use language borrowed from modern discrimination and harassment law. They speak of "rights" and "abuses." The Namies, in particular, see "anti-bullying" as the next step in a struggle that includes the civil rights movement and the fight for women's equality. They are heartened by the Americans with Disabilities Act. In a culture increasingly concerned with defining and protecting certain groups, the Namies propose an ironic endgame: Protect everyone.When I visit Jean, her house is nearly empty. Everything is in boxes, and the only furniture is a matching sofa and love seat upholstered in a bright floral print. It smells strongly of dog (she has three dogs and six cats). I ask her if she's just moved in and she says no, she's moving out. She's only been in the place a month, but she's decided to leave. "There are 23 things wrong with this house," she says, "and I found them all the first weekend I was here."Jean is thin and drawn-looking, with long red fingernails at odds with her sensible sneakers and carelessly kept hair. Though she first met the Namies in January, her personal campaign has been going on for years. Jean presciently anticipated the Namies' other key bullybusting strategy -- "Document all wrongs" -- collecting evidence of how she's been treated at her job for the last three years: four thick manila folders crammed with memos and handwritten logs. Her story includes two workers' compensation cases (both of which she won), a truck purchased for another employee instead of Jean, and an episode about her feeding of cats on company property that defies easy characterization.She shows me copies of invoices, meeting minutes, departmental procedure outlines. There are copies of context-free e-mail exchanges, missives whose single-line terseness now crackles meaninglessly (her boss: "Do you have copies of these PRs?" Jean: "No, that's why I forwarded to you"). The hand written logs cite almost daily examples of Jean's co-workers' and bosses' collusion against her, as well as what she believes to be their clear incompetence. She writes about a co-worker who "loses incoming mail corres. even after I made a special labeled folder for it." Later, she notes that a co-worker named Cheryl "said she spent 17 hrs O/T on Tom's req. spread sheet & I could have been done shorter time & during working hrs."There are numerous entries about Cheryl. For Jean, Cheryl seems to symbolize how other employees are treated but Jean isn't. Writes Jean of the issue: "I asked Tom who he had gotten complaints from and he said 'everybody' & I asked who -- I said I couldn't understand that as I get along with everyone. At the most, I'm rushed due to my workload & can't socialize w/people for an hour at a time like Cheryl.""She's not paranoid," says Jean's lawyer, John Ferry, musing on her case -- or, more accurately, her lack of one. "I think everyone really is out to get her. And I don't know the real reason why."There's no question in Ferry's mind that Jean has been the victim of some kind of harassment or discrimination, but he can't say what kind, or why. "If I knew why," he says, "we'd be in litigation right now." He offers one potential strategy: "She's upset an old-boy network -- she's a fly in their ointment. Her mere presence some people find disruptive, and that may well give rise to a sexual harassment claim."I point out that many of the people Jean fingers as bullies, or at least as part of the group that is out to get her, are women. Is it possible, I ask, that Jean is being harassed for another reason? Given her reams of documentation, I ask if people might find her mere presence disruptive because it is?Ferry leans back in his chair and considers the ceiling. "Being an irritating person -- what are the ramifications there? Legally, none, for the employer or the employee."Though the restrictions against harassment have expanded dramatically in recent years, existing law is inadequate to support the kind of case Ferry and Jean would like to bring for one simple reason: No tangible harm has been done. All they might really prove is that Jean's co-workers are mean to her. And this represents the most audacious component of the Campaign Against Workplace Bullying: The Namies want laws that punish employers who allow their workers to be mean to one another."We think the law should protect the underdog -- that's what the law is for, to protect the rights of the minority, not the majority," says Gary Namie. Adds Ferry, "Currently, there's no protection against a boss who's an asshole."David Yamada, a law professor at Suffolk University, has drafted the first attempt at anti-bullying legislation in the U.S. (anti-bullying statutes have been on the books in Europe for more than a decade). "After talking to the Namies, I realized there was nothing in the law [to protect the Targets]," says Yamada, a campaign "affiliate." (The Namies encourage their clients to share their stories with Yamada so that he can further his research on workplace discrimination.)Yamada says that besides discrimination law, the only other possible legal protection for Targets is to file a personal injury lawsuit for the "intentional infliction of emotional distress." However, he says, the courts interpreting those claims "call for the employer conduct to be so severe and the emotional distress to be so severe thatÉthe typical bullied employee can't meet that standard."Drawing on the "reasonable person" standard found in sexual harassment law (a hostile environment is one that a reasonable person would find abusive), Yamada now says that "we should make it illegal for an employer to subject an employee to a hostile work environment -- and it should be independent of race, gender, age, or any of the other classes we normally protect."Under this legislative proposal, Jean would be able to sue her employer if the employer had knowledge of her co-workers' harassing behavior but did nothing to stop it. Unfortunately for her, Yamada's ideas have yet to be considered by any legislator; he hopes that if he can get a law journal to publish his research, interest will follow.As unlikely as all this may sound, Yamada's proposal is not so far removed from current trends in harassment law. In 1986, in Meritor Savings Bank v. Vinson, the U.S. Supreme Court held that someone could sue an employer for behavior that stopped short of tangible or economic harm, as long as it was unwelcome -- this was the case that determined that a "hostile environment" was itself a form of sexual discrimination and therefore actionable under Title VII of the Civil Rights Act of 1964. In Harris v. Forklift Systems in 1993, the court lowered the standard of what constitutes a hostile environment, saying that "to be actionable as 'abusive work environment' harassment, conduct need not 'seriously affect psychological well-being' or lead the plaintiff to 'suffe[r] injury.'" And last year, another case affirmed these precedents. In Burlington Industries v. Ellerth, the court found that a woman who rejected a superior co-worker's advances but suffered no tangible detriment could still sue her employer.In Yamada's view, the only difference between these precedents and his anti-bullying legislation is the focus on gender. Here, too, the Supreme Court seems to be offering a nudge in Yamada's direction, holding in last year's Oncale v. Sundowner Offshore Service that same-sex sexual harassment is actionable under Title VII. But whereas the Supreme Court was careful to say that its decision did not "transform Title VII into a general civility code for the American workplace," Yamada and the Namies seem determined to create exactly that. And they're not so far off: These decisions have severed harassment from its tangible effects, implying that harassment law can be brought in to protect not simply one's job, but one's mental and emotional state -- one's feelings.Ironically, in proposing to expand harassment law to protect everyone, what the Namies and Yamada have done is highlight how difficult it is for the legal system to protect anyone. Harassment rulings are the courts' way of recognizing that there are forms of discrimination too subtle to be spelled out by a law. If we scoff at the vagueness of the "reasonable person" standard, consider the devious subtlety of what it was invented to guard against: the unconscious biases that lead to the promotion of one person over another, or to a careless remark about another's appearance, for a superficial reason such as age or race or gender. What the Namies want is to see that the rules that protect some groups from such thoughtlessness be extended to everyone, and they're hoping Yamada's proposal will achieve that."In a way, it's not such a radical idea," says University of Chicago law professor Stephen Schulhofer, author of Unwanted Sex and an expert on sexual harassment issues. "There's a very strong intuition that people should be treated fairly in the workplace."Currently, Schulhofer says, we define sexual harassment to be, specifically, "unwanted sexual attention." Take out the "sexual" component and what would you have? "Would it be any unwanted attention?" he asks. "Are they defining it as any emotionally distressing activity?" I tell him this appears to be the case. "Well," he says, laughing, "I guess that would be just wonderful!" Sobering a bit, he notes that Yamada's legislation might be so broad as to be considered unconstitutionally vague.The Campaign Against Workplace Bullying does raise a fundamental question about human relationships: If being mean is something to be avoided, then why do we let it continue? Why don't we try to do something about it?That we have the freedom to be mean to others is such a given that even a child considers it a right. In the book You Can't Say You Can't Play, MacArthur "genius grant" winner and kindergarten teacher Vivian Gussin Paley recounts how the children in her elementary school reacted to a rule she instituted about how they should play together -- a proposal that is a decidedly local version of what the Namies want to do nationwide. She details the outrage the children at every grade level expressed when she proposed that no child could refuse another child's request to play. If you can't choose your friends, asked one child, then what's the point of playing? Said another, "You're not going to go through life never being excluded, so you may as well learn it now."Paley herself wonders if she was extending the rules too far into the children's lives. Here we find a fanciful but genuine parallel to anti-bullying regulations: Some might argue that work is work, but to regulate social interactions is going too far.In the end, Paley did enact the rule in her kindergarten class, and the children agreed that the class was better for it. Paley explains it this way: Her rule allowed the children to be nice to each other. The social pressures that caused them to reject some in order to save face in front of others were nullified. But when Paley presented the results of her experiment to her grade-schoolers, they continued to object. One student pointed out that the rule worked only because the children trusted Paley more than they disliked any one child.After observing a second workshop, I ask the Namies if the attendees I've seen are typical. Gary says that for the most part they are. Delicately, I ask the couple a question that has been on my mind since I first met them and their clients: "Is it possible that the reason so many of your clients repeatedly find themselves in bullying situations is that there's something wrong with them?"They are thoughtful but not particularly disturbed by the idea. "Are Targets just thin-skinned?" asks Gary rhetorically. "It's a matter of showing harm. We have no problem showing the harm." He cites examples of clients hospitalized for depression, but doesn't acknowledge how hard it would be to prove to a judge that such a condition was caused by a hostile workplace.I press the issue: What if the Targets aren't just thin-skinned, but are being mistreated because they are simply disliked? And if that's so, isn't telling them that there's nothing wrong with their behavior the most unhelpful advice the Namies could give?Ruth responds pointedly. "I say, Fine, this person may be obnoxious, may smell bad, or be annoying," she says. But then, referring to a patient whose mistreatment has made him suicidal, she says: "That's the line."She continues, "People like Jean -- she's tormented. Why? Because people don't like the way she looks? I can't stand that. It's just soÉso mean."

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