Running Head: HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

Healthy Workplace Legislation: A Critical Look at Managements Role

By

Brian Dees

A Thesis Submitted to the Department of Public Administration California State University Bakersfield In Partial Fulfillment for the Degree of Masters of Public Administration

Spring 2012

Copyright

By

Brian Dees

2012

HEAL THY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

Healthy Workplace Legislation: A Critical Look at Managements Role

By Brian Dees

This thesis has been approved on behalf of the Department of Public Administration by:

Date

s- f)..., I -z..o\ ._ Second Reader: Chandrasekhar Commuri, PhD Date HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

Dedication:

To my wife Faby and my boss Roger for your unconditional support in my pursuit of a graduate school education, to my friends, family, and colleagues who walked the path before me, and to L, L, and L, for being catalysts of my growth, in spite of resistance…

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

Quotes:

“Great minds discuss ideas; average minds discuss events; small minds discuss people.” Eleanor Roosevelt

“When you know a thing, to recognize you know it, and when you do not know a thing, to recognize that you do not know it. That is knowledge.”

Confucius

“For every problem, a personality…” Chuck Shuldiner

“It’s easier to get forgiveness than permission.”

Arthur Bloch

“Inflexibility should lie in one's will, not in the judgment.”

Baltasar Gracian

“Error is not something you simply have to suffer through on the way to genius. Error often creates a path that leads you out of your comfortable assumptions… Being right keeps you in place. Being wrong forces you to explore.”

Steven Johnson

“Never ascribe to malice that which is adequately explained by incompetence.”

Napoleon Bonaparte

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

TABLE OF CONTENTS Page

List of Figures…………………………………………………………………………………….... i Abstract………………………………………………………………………………………...... ii

Chapter 1: Introduction…………………………………………………………………………….. 2 Problem Statement……..…………………………………………………………………... 4 Purpose of the Study……………………………………………………………………….. 5 Importance of the Study…………………………………………………………...... 5 Definition of Terms………………………………………………………………...... 6

Chapter 2: Review of Literature……………………………………………………………....…… 8 Definition…………………………………………………………………………………... 8 History – Workplace Bullying……………………………………………………………... 9 U.S. Legislation……………………………………………………………………...... 10 Costs………………………………………………………………………………………... 12 Workplace Bullying / Aggression Research……………………………………………….. 13 Target’s Experience……………………………………………………………………...... 15 Compliance and Conflict………………………………………………………………...... 18 Arguments Against ‘Healthy Workplace’ Legislation…………………………………….. 20

Chapter 3: Analysis…………………………………………………………………………………24 Societal Changes and Current Law…………………………………………………………24 Emotional Intelligence and Emotional Drives……………………………………………... 27 Structure……………………………………………………………………………...... 32 Habituation and S.O.P………………………………………………………………32 Disruptive Behavior Pyramid……………………………………………………… 34 Termination and Litigation………………………………………………………… 36

Chapter 4: Conclusion………………………………………………………………………………40 Recommendation – Management………………………………………………………….. 40 Recommendation – Target………………………………………………………………….41

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

Appendixes A: Assembly Bill 1582 – California………………………………………………………. 44 B: Assembly Bill 4258 – New York……………………………………………………….50 C: Generic Bully Policy……………………………………………………………………55

Bibliography……………………………………………………………………………………….. 59

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE i

List of Figures Page Figure 2.1: Solomon Asch’s Conformity Experiment………………………………………15 Figure 3.1: Similar Terminology Between EEOC and Healthy Workplace Bill…………... 25 Figure 3.2: Relationship Between Abusive Conduct, the Civil Rights Act of 1964, and Healthy Workplace Legislation……………………………………………….. 26 Figure 3.3: Kruger and Dunnings Self-Knowledge Test…………………………………... 28 Figure 3.4: Vanderbilt’s Emotional Drivers………………………………………………. 30 Figure 3.5: The Disruptive Behavior Pyramid…………………………………………….. 34 Figure 3.6: Vanderbilt’s Structural Drivers………………………………………………..35

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE ii

ABSTRACT American employees experience workplace bullying at rates four times higher than illegal harassment. The current literature approaches the problem as a descriptive analysis of the overall organizational environment or from an attempt to alleviate / understand the plight of those who have been bullied. This study examines management’s role in workplace bullying, given that the majority of bullying comes from management, most employees leave because management fails to adequately address the problem, and management is responsible for policy enforcement within organizations. The analysis concluded that: 1. Those who need anti-bullying legislation and policies the most are the least likely to follow them, so established guidelines give the organization legal and ethical recourse against the workplace bully; 2. Targeted workers should utilize informal methods of reducing workplace hostilities including emotionally detaching from the situation and aligning with other targeted individuals when workplace bullying is overlooked by management and reasonable formal options for redress are unavailable. This study offers guidance in clarifying management’s role in workplace bullying and shows the necessity of counteracting institutional complicity through enacting healthy workplace legislation / anti-bullying policies. Workplace bullying is manageable when acknowledged and properly treated, and needs consistent effort to keep it from getting out of control. Therefore, utilizing a team approach to handling bullying behaviors (as shown in the disruptive behavioral pyramid) through management enforced policies mandates accountability and disrupts the cycle of hostility.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 2

CHAPTER 1

Introduction

Workplace bullying came into the American landscape in the late 1990’s. Bullying may be defined as “an escalating process in the course of which the person confronted ends up in an inferior position and becomes the target of systematic negative social acts” (Notelaers, Einarsen,

De Witte, & Vermunt 2006). Situations of workplace bullying include being sworn at, belittled publicly or privately, given impossible deadlines, micromanaged, and / or retaliated against for standing up for oneself. These uncivil behaviors cause numerous problems, including stress related health symptoms, absenteeism, reduced productivity, loss of employment, and costs related to recruitment and training.

For example, in 2011 the Ventura County Grand Jury received a report from the Service

Employees International Union (SEIU) local 721 detailing widespread workplace abuse in their county government. The report stated that of the almost 500 employees surveyed about workplace bullying, 66% (roughly 300) of the workers experienced it directly, but only eleven actually reported the situation to a manager or supervisor. The most common reason cited for not reporting was fear of retaliation (SEIU 2011). The Ventura County Grand Jury’s investigation came to similar conclusions. Part of their report states:

“The Grand Jury found that bullying is occurring in County government and that the

County has no anti-bullying policy. Employees have escaped from bullying by leaving

their County positions. These employees did not file complaints of bullying because they

perceived they could not get a fair and impartial investigation into their complaints. They

felt their situation would worsen if their identities became known” (Ventura County

Grand Jury 2011). HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 3

The experience of Ventura County workers is not unusual. Helen Green, a former employee of Deutsche Bank in Great Britain, suffered two nervous breakdowns and a major depressive disorder from a “relentless campaign of mean and spiteful behavior” at work. This campaign included being stonewalled, having items removed from her desk, being laughed at in her face, and being told “you stink.” For her mistreatment and resulting health issues, Helen

Green was awarded £817,000 in damages from Deutsche Bank group. The high court judge Mr.

Justice Owen reprimanded the management team for ignoring the long standing workplace bullying problem, saying they “collectively closed their eyes to what was going on, no doubt in the hope that the problem would go away” and described the management team as “weak and ineffectual” (Morse 2007).

A 2007 Workplace Bullying Institute (WBI) Zogby International commissioned report of

7,741 American workers shows that 37% of American workers directly experienced bullying within their previous five years of work, while another 12% witnessed it at some point in their work life. That same report also showed that 71% of bosses are bullies, 62% of managers ignore the problem, and once targeted, 64% of those bullied end up leaving their employer

(Namie 2007). Several studies show similar results (Canada Safety Council 2000, Namie 2010,

Quine 1999 and UNISON 2003), demonstrating that management plays a primary role in most workplace bullying situations through either doing it themselves or allowing it to perpetuate.

Since 2003, twenty-one states have attempted to pass the Healthy Workplace Bill, a legislative measure which makes workplace bullying illegal like discriminatory harassment.

This legislation has not been ratified due to a lack of political support and a concerted effort from the business community to stop additional regulations and more reasons to litigate. EEOC guidelines and current workers compensation laws both fail to cover the abusive conduct HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 4 primarily because most of it is not expressly illegal and occurs without direct relationship with protected class status.

When one in three Americans suffer from obesity, the Centers for Disease Control call this an epidemic (CDC 2012), and spend hundreds of millions of dollars on campaigns to alleviate the problem. When one in three American workers get bullied in the workplace, it is downplayed or ignored. The preponderance of hostile work environments like Helen Green’s

Deutsche Bank and the Ventura County Employees situation begs for proactive prevention. Like obesity, workplace bullying is manageable when acknowledged and properly treated, and needs consistent effort to keep it from getting out of control. Thus far without preventative measures, workplace bullying in the United States has become a ‘silent epidemic’.

Problem Statement

Holes in existing United States legislation, coupled with shortfalls in managerial practice unintentionally perpetuate negative work behaviors. With organizational leadership fearing litigation and workers fearing retribution, some sort of common ground needs to be found.

“Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or provide adequate redress to employees who have been harmed by abusive work environments” (AB 1582). Replacing an employee costs 150% of that position’s yearly salary (Campbell & Alleyne 2002) and work based stress claims greatly increase healthcare expenses (Namie & Namie 2000, SEIU 2011, and Worksafe 2005), so society as a whole eventually pays the costs of workplace bullying.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 5

Purpose of the Study

American employees experience bullying at rates four times higher than current illegal harassment and the majority of bullying comes from management (Namie 2007). The literature approaches the problem as a descriptive analysis of the organizational environment (Bowling, &

Beehr 2006 and Hershcovis, Turner, Barling, Arnold, Dupre´, Inness, et al. 2007), or from an attempt to alleviate or understand the plight of those who have been bullied (MacIntosh 2005,

Namie 2007, Namie & Namie 2000, Payne 2011, and Sutton 2007). A gap in the literature exists critically looking at management’s role in the context of bullying. This policy analysis shall:

• Review the similarities between workplace bullying and Title VII discrimination

laws, showing both harmful actions fall under the definition of “abusive

conduct” , yet only EEOC based discrimination is considered illegal;

• Explore the inadequacies in how management typically addresses workplace

bullying and clarify management’s role; then,

• Present guidance in improving management practices handling workplace

bullying through anti-bullying policies and Healthy Workplace Legislation.

Importance of the Study

Society incurs the costs of bullying’s aftermath for several reasons including attrition, healthcare costs, and litigation. Individuals and institutions have symbiotic relationships, so pragmatic efforts towards more respectful work relationships and effective conflict resolution benefits everyone. Several factors influence the future of work, including the looming retirement of baby boomers, an estimated shortage of up to 14 million skilled workers by 2020 (Carnevale

2005 & Pynes 2009), and a high level of concern among CFO’s about skilled labor shortages HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 6

(Hansen 2008). “In today’s global market economy, the success of an organization is contingent,

to a great extent, on the attraction, development, and retention of qualified personnel”

(Hindelang, Schwerin & Farmer 2004).

Definition of Terms

Conceptually, Workplace Bullying refers to emotionally harmful and situationally condoned harassment of one employee by another.

Operationally speaking, Workplace Bullying means repeated, negative, and harmful behaviors directed at an employee within the workplace over an extended period of time which are unrelated to and / or restrictive to job performance and socially ostracize the individual.

Workplace bullying includes behavior considered illegal under Title VII, yet does not need protected class status as the driver of harm. Thus, the person is submitted to abusive conduct within the workplace, with or without regard of race, color, religion, sex, national origin, age, disability, etc.

These hostile behaviors may or may not be work related, but survive and thrive within a complicit institution. The bully’s primary emotional drivers of behavior include substance abuse, psychological problems, family problems, narcissism, perfectionism, selfishness, and poor stress handling techniques. The institutional sources of bullying behavior include heightened stress due to poor behaving colleagues, heightened stress due to work conditions, bad behavior being rewarded by superiors, and administrative inertia.

Abusive Conduct refers to conduct of an employer or employee in the workplace, with malice (the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification), that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests (AB 1532). HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 7

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 8

CHAPTER 2

Review of the Literature

Definition

Workplace harassment is defined as “interpersonal behavior aimed at intentionally harming another employee in the workplace.” These behaviors are also known as bullying, mobbing, social undermining, interpersonal conflict, and abuse. Negative behaviors towards those targeted may start with derogatory comments or social alienation, and may escalate to

yelling, threats, public humiliation, untenable workloads, and administrative leave. The negative

occurrences typically happen at least weekly (up to daily) and last for a period of six months or

longer (Leymann 1996), leading to stress-related symptoms. “The most important defining

characteristic is that the bully’s actions damage the targets health and self-esteem, relations with

family and friends, economic livelihood, or some combination of them all” (Namie & Namie

2000 page 3). Theft and destruction of organizational property fall out of harassment guidelines

(Bowling & Beehr 2006), as do isolated incidents or when both sides have equal power in the

situation (Notelaers, Einarsen, De Witte & Vermunt 2006). Title VII of the U.S. civil rights law

does not cover bullying because hostile activities typically are not motivated by membership in a

protected class.

History – Workplace Bullying

During the early 1980’s, Swedish physician and researcher Heinz Leymann became

interested in workplace psychosocial environmental issues while working for the Swedish

National Board of Occupational Safety. His experience studying aggression among

schoolchildren led him to better understand similar circumstances in the occupational world HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 9

(Hoel & Einarsen 2010). He focused on the effects of those targeted (as opposed to typology or

organizational effects) by workplace bullying (mobbing), where “the Post Traumatic Stress

Syndrome suffered by mobbing victims is more intense and persistent than that felt by train

operators who witnessed suicides by people leaping on the railroad tracks in front of them”

(Namie & Namie 2000). At the time Leymann’s civil service superiors did not believe his

research findings were relevant because “the issue was frequently looked upon with skepticism

and even scorn, viewed as something ‘difficult people’ brought upon themselves or a reflection

of personal weakness of those who laid themselves open to mistreatment and victimization and

for which they, therefore, would have to pay the price” (Hoel & Einarsen 2010). It would take

more time before workplace bullying would become better understood.

British journalist Andrea Adams first reported about workplace abuse occurring at a bank

in the late 1980’s, and coined the phrase ‘workplace bullying’. She later wrote the book Bullying

at work: how to confront and overcome it on bullying in 1992. The EU began to work on issues

of ‘mobbing’ and psychological health in the workplace, starting with general worker health

initiatives in 1989 (Eurofound 2012). With increased attention focused internationally during the

1990’s, the first legislation on workplace bullying passed in Sweden in 1993 (Hoel & Einarsen

2010, Namie & Namie 2000). The government of Queensland, Australia joined Sweden in

passing workplace bullying legislation in 1994 (Namie & Namie 2000). By 1997 British

lawmakers expanded existing anti-stalking laws to include workplace bullying under the

Protection from Harassment Act (Collins 2011). In 2002, France enacted the Social

Modernization Law, adding civil and criminal liabilities for those convicted of moral harassment

(Collins 2011). HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 10

By the late 1990’s psychologically damaging workplace behaviors became known as workplace bullying in the United States through the advocacy of psychologists Gary and Ruth

Namie. They continued the work of European scholars and policy advocates by writing books, holding the first American Workplace bullying conference in Oakland, California in 2000, and founding the Workplace Bullying Institute (WBI). The National Institute of Occupational Safety and Health reported on bullying in 2004, and the Joint Commission mandated anti-bullying standards into hospital accreditation in 2009, showing that the problem was gaining domestic recognition. The Namie’s perseverance, along with that of Law Professor David Yamada, has continued into the legislative arena as well.

U.S. Legislation

The Equal Employment Opportunity Commission (EEOC) was created by passage of the

Civil Rights Act of 1964, with a goal to prevent employment discrimination in the public and private spheres. (Shafritz, Russell, & Borick 2009). The EEOC currently defines harassment as:

“Unwelcome conduct that is based on race, color, religion, sex (including pregnancy),

national origin, age (40 or older), disability or genetic information. Harassment becomes

unlawful where 1) enduring the offensive conduct becomes a condition of continued

employment, or 2) the conduct is severe or pervasive enough to create a work

environment that a reasonable person would consider intimidating, hostile, or abusive”

(EEOC 2012).

By 1965, President Johnson required federal building contractors to have affirmative action programs. In 1972, EEO plans looked to remedy past discriminatory practices by putting hiring goals in place for women and minorities, and the 1980 Fullilove v. Klutznick Supreme HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 11

Court ruling upheld that decision (Shafritz, Russell, & Borick 2009). As with the passage of any

major legislation, it’s taken many years to see the ramifications of the Civil Rights Act of 1964

ripple through the population and the legal system.

The 1986 Supreme Court decision Meritor Savings Bank v. Vinson made actions which

constitute sexual harassment illegal under Title VII of the Civil Rights Act. In 1993, Harris v.

Forklift Systems added a reasonableness standard for constituting an abusive work environment by mandating two criteria be met. The first is the conduct must be perceived as abusive by a reasonable person, and the second criteria is the victim must also perceive the environment as abusive. Factors such as the frequency and severity of the abusive conduct, along with its impact on the individual’s ability to perform their job, all get considered together during the judgment

(Shafritz, Russell, & Borick 2009).

In 2005, the first case nationally spotlighting workplace bullying occurred in Indiana. In

Doescher v. Raess, a surgeon with a history of being a workplace bully was ordered to pay

$325,000 in damages to a technician he threatened during a surgery. Given the history of the

defendant’s aggressive behavior, the justices ruled that workplace bullying was an “entirely

appropriate” term. The Indiana Supreme Court upheld that ruling in 2008 (Tuna 2008). Though

this particular case did not make it to the US Supreme Court, it did show that the issue was

gaining attention.

Gary and Ruth Namie, with assistance from fellow advocate and legal scholar David

Yamada from Suffolk University Law School, introduced the first American ‘Healthy

Workplace’ bill (AB 1582) to the California Legislature as in 2003, with Oregon and Oklahoma

soon following. AB 1582 serves as a template for other legislation (Yamada 2010), which has HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 12

been introduced in 21 states to date. No complete version has passed thus far in the United

States, though New York is close to being first as of February 2012 (Healthy Workplace Bill

2012).

Costs

A 2007 survey by the non-profit Level Playing Field institute found that $64 billion is

wasted annually in the American economy due to consequences of unfair treatment to managers

and professionals in the workplace (Level Playing Field Institute 2007). Australia’s Human

Rights Council (2004) estimated a $6 to $36 billion in annual waste to the Australian economy

due to the hidden and lost opportunity costs from bullying. Bullied employees waste up to half

their time at work (Canada Safety Council 2000), use more sick days (UNISON 2003), and

suffer from stress related syndromes (Namie 2007 and Ventura County Grand Jury 2011),

unnecessarily adding costs to the medical system. When factoring in recruitment and training,

costs related to replacing employees run around 150% of their yearly salary, a major factor for

the American economy, since many analysts perceive current and future skilled labor shortages.

A meta-analysis of over 12,000 employees showed that the initial decision to quit a job is

prompted by job dissatisfaction. (Griffeth, Homm, & Gaertner 2000). Dissatisfaction with the immediate supervisor is the top reason that a worker leaves. Decisions to leave a company are often emotional, rather than financial (Tulacz 2001). People are more likely to stay in positions where they like the people they work for and with and find their work challenging, even if there’s less pay (Ketter 2008 & Tulacz 2001). Most disturbingly, Heinz Leymann estimated that

15% of all suicides were workplace bullying related (Morse 2007).

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 13

Workplace Aggression / Bullying Research

A 2007 WBI / Zogby International commissioned report of 7,741 American workers

showed that 37% of American workers directly experienced bullying, while another 12%

witnessed it at some point in their work life. In addition, 71% of bosses are bullies, and once

targeted, 64% of those bullied end up ending their employment. Other findings of note: 62% of

employers ignore the problem, 40% of employees never tell their employers, and workplace

aggression is four times more likely to occur than illegal discriminatory harassment. Workers

suffer ill effects from hostilities 45% of the time, including anxiety and PTSD symptoms (Namie

2007). A 2010 follow up study with 4,210 participants was performed through WBI and found

similar results (Namie 2010). Similar rates of workplace aggression were found in other studies

abroad (Canada Safety Council 2000, Quine 1999, and UNISON 2003).

A 2007 meta-analysis of 57 studies showed certain facets explaining workplace and

organizational aggression. Poor leadership and interpersonal injustice, both highly correlated,

were the strongest predictors of supervisor-targeted aggression, while interpersonal conflict, also

highly correlated, was the strongest predictor of interpersonal aggression. Interpersonal conflict,

job dissatisfaction, and situational constraints all showed moderate correlations with organizational aggression. Gender and negative affect did not predict workplace aggression

(Hershcovis, Turner, Barling, Arnold, Dupre´, Inness, et al. 2007).

Vanderbilt University’s Medical staff policy on professionalism lists the six primary drivers behind unprofessional and disruptive behavior: substance abuse or psychological issues, narcissism or perfectionism or selfishness, home or family problems, poorly controlled anger due to heightened stress (work conditions, poor performing colleagues, etc.), bad behavior being HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 14

rewarded, and administrative inertia (bad behavior is not addressed by management) (Hickson,

Pichert, Webb, & Gabbe 2007). For purposes of this study, these six behavioral problems will be

simplified into two categories: emotional (substance abuse, psychological problem, family

problems, narcissism, perfectionism, selfishness, and heightened stress due to work conditions)

or institutional (heightened stress due to poor behaving colleagues, bad behavior is rewarded,

and administrative inertia).

Fast and Chen (2009) found that “power led to aggression only when it was paired with personal incompetence,” adding that self-perceived incompetence opened the manager up for

ego-defensiveness and elevated levels of aggression. Another study on workplace arrogance

showed that individuals with high levels of arrogance were associated with low task performance

and low cognitive ability, revealing that holding an unflattering view of oneself may cause

individuals to overcompensate for their low self esteem through self-aggrandizement.

Regardless of self or colleague assessment, the statistically significant negative correlations

remained consistent across 88% of the samples (Johnson, Silverman, Shyamsunder, Swee,

Rodopman, Cho, & Bauer 2010).

Though Bowling & Beehr (2006) found that harassment is not strongly related to job

performance, they did report that perpetrators frequently found themselves being targeted as

well. Environmental factors tied in with perpetrators actions (Bowling & Beehr 2006,

Hershcovis et al. 2007, Hickson et al. 2007, Lutgen-Sandvik & McDermott 2011), showing that

work environments (including work stress, rewards systems, training, the presence of hostile

individuals, administrative inertia) contribute towards workplace aggression. An Australian

study of 346 white collar workers on the effects of corporate psychopaths concluded that around

26% of bullying can be accounted for by 1% of the employee population. When corporate HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 15

psychopaths are present, supervisors are strongly perceived as unfair and uninterested in

employees needs, and perceived bullying increases from 54% to 93% (Boddy 2011).

Target’s Experience

Self efficacy is defined as a person’s “beliefs about their capabilities to produce designated levels of performance that exercise influence over events that affect their lives.”

People with high levels of self efficacy take actions towards having their needs met, while people lacking in self efficacy shy away from responsibility and action. Potential success of outcomes is determined by how well the person believes they will be able to perform (Bandura, 1994), with high expectations being a better predictor of behavior (Solomon & Annis 1990). In the case of workplace bullying, not enough individuals possess the self efficacy to defend themselves, otherwise the phenomenon wouldn’t be as widespread as it is.

Figure 2.1 Solomon Asch’s Conformity Experiment

Many people are more naturally inclined to follow group norms than question the status

quo. For example, in the 1950’s Solomon Asch did a set of experiments showing people two

boxes, one with a line and the second with three lines of different lengths. When tested

individually, 34 out of 35 people identified the correct line within the two boxes ( see Figure

2.1). When experimenters put three or more ‘ringers’ in the group who all intentionally picked HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 16

the wrong line, 36.8% of test subjects followed the group norm, answering the question wrong.

Later variations of the experiments found that as long as one person dissented from group norms,

other people would follow suit (Sundem 2010). Someone who knowingly agrees with a wrong

answer in order to comply with a group of strangers shows a higher need for adherence to the

status quo. Not everyone is willing (or courageous enough) to disagree with the group and stand

alone. Some prefer to avoid open disagreement rather, even during a simple experiment with

little social costs when they know the correct answer. People make decisions based upon

personal criteria which may appear irrational to outsiders looking in, especially through the lenses of our own personal biases and worldview.

The harassed individual with or without formal power or self efficacy is supposed to rely on the chain of command as their primary internal advocate. Ferris acknowledges “not every organizational representative response is helpful when employees request help for bullying experiences,” which is understandable since no laws are in place in the U.S. and training is lacking in this arena. Some organizations may become increasingly hostile when an allegation

arises, so becoming situationally passive for a short period of time may be advantageous for

them in regrouping until an alternative is found (Ferris 2004). However, when no action is taken

on their behalf, the employee is left to fend for themselves. If ignorant or afraid of seeking

outside help (i.e. the labor board or legal counsel), their options include quitting or coping with

the aftermath the best they can. Decisions to leave a company are often emotional, rather than

financial (Tulacz 2001), and typically caused by dissatisfaction with the immediate supervisor.

If an exit interview occurs prior to leaving, the exiting employee’s responses tend to have

understatements, inaccuracies, and omissions. Typically the person feels threatened by exposing

their actual experiences to the interviewer (authority figures), or do not know how to tactfully HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 17

communicate disagreements, or fear retribution for exposing the truth (Knouse, Beard, & Pollard

1996 & Giacalone, Knouse, & Montagliani 1997). Meaningful data pulled from exit interviews

rarely gets used in process improvement (Ettorre 1997), so formal institutional channels fail to

expose the situation, leaving the cycle to repeat itself .

A few studies focused on targets experiences. Lutgen-Sandvik & McDermott’s (2011)

survey of 246 white collar workers looked at sense-making factors, where targets “repeatedly pointed to the social contexts in which they made sense: conversations with coworkers, friends, or family members. That is, they decided what bullying meant in interactions and transactions with others.” Sensemaking is an inter-subjective communication phenomenon, where coworkers had the highest likelihood for shared understanding of the situational context. The authors did note that the way the individuals understood their particular situation through sensemaking could either alleviate the stress of the situation or paralyze themselves into inaction. MacIntosh (2005) found that workers sometimes didn’t know immediately that they were being targeted, nor did some of the perpetrators have enough self-awareness to note their own actions. Those study participants intuitively wondered if personality disorders played into the actions of the aggressor, reflecting Boddy (2011) and Hickson, Pichert, Webb, and Gabbe’s (2007) findings.

The targeted employee places a high level of blame on the institution itself for not dealing with the hostility (Bowling & Beehr 2006, Hershcovis et al. 2007, Lutgen-Sandvik &

McDermott 2011, MacIntosh 2005). For the most part, no manager intentionally disregards the targeted employee’s plight, but usually find themselves placed in an uncomfortable position.

Personal dilemmas associated with career advancement, intimidation, organizational culture and financial necessities are other plausible explanations for why managers shy away from dealing HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 18

with the situation (Bowling & Beehr 2006). Sometimes the targeted employee gets blamed for the bullying.

Compliance and Conflict

Direct confrontation is the most effective method in reducing or eliminating individual bullying, but is also the least likely to happen. Ingratiation and minimizing down the message (I was told you were a little upset…), along with avoiding the confrontation, altogether are ineffective and perpetuate the problem (Yagil, Ben-Zur, & Tamir 2011 & Bonnefon, Feeney, &

De Neys 2011). Excessive flattery may curtail aggressive tendencies, though only when the

aggressor perceives themselves as inadequate (Fast & Chen 2009).

As a form of conflict resolution, an integrating or adaptive conflict handling style

correlates with improvements in outcomes, customer service, and productivity. Forcing others to

conform, and then denying and ignoring problems, have the highest correlations with poor

performance and other negative outcomes. An integrating style works well in peer to peer

conflict resolution, whereas this method does not perform as well with superiors. People high in

self efficacy tend to overcome this discrepancy when dealing with superiors, as may be expected.

People low in self efficacy tend to avoid conflict entirely or compromise with superiors

(Ergeneli, Camgoz & Karapinar 2010). Thus, a personality low in self efficacy can lead to

problems when someone is afraid to question a superior or stand up to an aggressive colleague.

Conformity or fear can stop an idea from coming to light, especially when personal needs for self

protection become threatened.

A study of 301 business administration students who worked directly under their

supervisor for at least one year showed they responded better to personal influence commands HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 19

than hierarchical position commands. A supervisor’s expertise and affability positively correlate with acceptance and behavioral compliance, whereas coercion, reward, and “I’m the boss so you must obey” tactics reduce compliance and morale (Rahim & Buntzman, 1989). A supervisor’s style of handling conflict greatly affects their staff, as mismanaged problems end up with employees energies being redirected in negative ways. Tensions rise and thinking declines during a dispute, leaving people wondering if their needs will be met, especially when issues remain unresolved (Meyer 2004).

The friction caused by opposition often promotes better ideas and processes within a healthy system, assuming of course the directors of change know enough to weigh the information and make the better decision (Liedtka, Haskin, Rosenblum, & Weber, 1997). A survey of 240 employees showed a subordinate’s perception of their supervisors decision making ability affects their compliance, which influences the amount of conflict. People who lack alternatives, such as those who are being bullied or who don’t know what to do, tend to have more relationship conflicts, which makes the most detrimental type of organizational conflict

(Landry & Vandenberghe 2009).

Management and leadership are in the business of making decisions. Decisions imply the availability of choices, and good decision making implies choosing the best or better alternative amongst available options. This recognition is a key aspect of decision making. Vigilant decisions involve painstaking information searches, weighing options and contemplating the best answer, whereas poor decision making tactics include hyper-vigilance (panic searching), buck passing, and procrastination (Bouckenooghe, Vanderheyden, Mestdagh, & Van Laetham, 2007), all of which can lead to bad decisions. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 20

Managers get asked to perform tasks they disagree with. Cognitive dissonance theory

(Larson 1998) describes compensation mechanisms used to reduce internal frustrations from

conflicting values, allowing the individual to come back to a place of internal consistency

through reorganization and rationalization of priorities. We all need to be comfortable within

ourselves and will find or make up reasons to stay that way. Distant familiarity allows people to

“disassociate what they do with what they think, what they really think and what they should

think” (Laroche 1995), giving psychological wiggle room to a manager who’s enforcing a

decision or policy that they don’t necessarily like. A related process, the agentic state occurs when an individual follows orders and defers responsibility for the results to the authority giving the command (Milgram 2009). The agentic state is more commonly known as the Nuremberg defense from World War II, where Axis leadership were tried and convicted for war crimes, all the while maintaining their innocence due to merely ‘following orders’.

Arguments Against ‘Healthy Workplace’ Legislation

Concern exists in the legal community, businesses, and in legislatures about enacting anti-bullying laws, as shown by 21 states putting the bill up for vote with none passing so far.

Several concerns are raised, including a fear of increased litigation after the bill passes. ‘Healthy

Workplace Bill’ author David Yamada, notes the litigation will eventually subside when the stated thresholds of malice and actual harm are better understood throughout the industry.

Though no one wants to pay the costs of litigation, the cap for damages is set at $25,000, keeping extraordinarily high damage suits out of the courts. Threats of lawsuits tend to keep institutions from promoting harmful behavior, so the legislations purpose is preventative (Yamada 2010). HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 21

In lieu of trends in increased harassment claims based on Civil Rights Act Discrimination

(EEOC 2012), some legal experts believe that existing legal frameworks and torts through the

workers compensation board already cover employees well enough. The lack of existing

legislation now gives recourse to company lawyers who don’t want to do anything about it, since

the abusive actions are not expressly illegal. In the same light, it is suggested that existing

company anti-harassment policies adequately cover inappropriate behaviors well enough to keep

legal guidelines from becoming necessary. These policies treat bullying as another form of

discrimination in the workplace (Larson 2007). If no policies exist, the Employee Law

Information Network (ELIN) states that codifying guidelines without legislation could end up

“fostering management inflexibility, establishing standards to which management does not

adhere, engendering workforce dissatisfaction due to imprecise or incomplete language, and

prompting or supporting employee lawsuits” (elinfonet.com 2011).

Companies do not want to be discouraged from running a ‘tight ship’ (Cohen 2010).

“Opposition to the bill came... from the… state associations that represent city and county governments. Those organizations pointed out that civil servants already have more protections than the spotted owl. Did they really need more?” (Harper 2004) The problems here go to the issues of enforcement of regular work-related policies and where do they cross the line into harassment. They fear ‘Healthy Workplace’ legislation will allow unproductive workers to unfairly fight normal workplace discipline because they do not want to work efficiently and productively. When processes are followed and accurate documentation of non-productivity happens consistently, the underproductive worker invites disciplinary action.

Some ‘supply side’ business people and pro-management lawyers claim that a healthy amount of tension creates increased competition within the workforce and reduces the number of HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 22 workers who do not produce enough to keep the organization competitive. A famous example of this management persona was Steve Jobs, who was celebrated for his abilities to lead with intensity, intimidation, and loyalty. He ran Apple with threatening and unprofessional outbursts, gaining great success and earning employees love at the same time (Sutton 2007). The angst or increased stress load added by Job’s personality led people to greater heights of innovation and productivity. Even if Job’s style is completely conceded as successful, few organizations get the privilege to suffer through the genius of people like him and prosper. Bullying in its typical state lacks the genius or the charisma necessary to make it worthwhile.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 23

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CHAPTER 3

Analysis

Societal Changes and Current Law

Much has progressed in the United States since the 1960’s. Interracial marriage rates were 2% then and increased to 15% by 2010, with much larger mainstream acceptance of such marriages (Pew 2010). “In 1970, 22.1 percent of women in the civilian labor force had either attended some college or graduated with a degree. By 2010, that figure had increased to 66.7 %”

(Bureau of Labor Statistics 2011). American society continues to evolve into a more diversity friendly landscape, because of numerous factors including civil rights gains, the increase of women in the workforce, cable television, the emergence of LGBT issues like gay marriage, and the social media revolution.

Institutional bias does still exist, though it is far less likely now that organizations overtly or intentionally discriminate against a protected class person in the workplace because of their protected class status. In 2010 and 2011 over 60% of all harassment claims were dismissed by the EEOC (EEOC 2012) and though EEOC claims were at an all time high in 2011, and bullying is four times more likely than sexual harassment (Namie 2007), it is undetermined how many of those dismissed claims would be covered under workplace bullying legislation.

In short, workplace bullying is ‘status-blind’ harassment (McKinney, Hargis, & Young

2007). Harassment and workplace bullying have the same end results, but differ in how the conduct gets defined legally. Both definitions reference a work environment deemed threatening through repetition of unwanted acts (abusive conduct), that a reasonable person would perceive HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 25 as threatening (multiple incidents). Figure 3.1 shows the similarities between both legal definitions (emphasis added).

Figure 3.1 Similar Terminology Between EEOC and Healthy Workplace Bill

EEOC Title VII Harassment ‘Healthy Workplace Bill’ Harassment is unwelcome conduct that It is an unlawful employment practice under this part is based on race, color, religion, sex to subject an employee to an abusive work (including pregnancy), national origin, environment (workplace where an employee is age (40 or older), disability or genetic subjected to abusive conduct that is so severe that it information. Harassment becomes causes physical or psychological harm to the unlawful where 1) enduring the employee). “Abusive conduct” is conduct of an offensive conduct becomes a condition employer or employee in the workplace, with malice of continued employment, or 2) the (the desire to see another person suffer psychological, conduct is severe or pervasive enough physical, or economic harm, without legitimate cause to create a work environment that a or justification), that a reasonable person would find reasonable person would consider hostile, offensive, and unrelated to an employer’s intimidating, hostile, or abusive. legitimate business interests.

Discriminatory behavior is a complete subset of bullying behavior, yet no formal legislation is in place to protect against workplace bullying (see Figure 3.2). New York’s pending ‘Healthy Workplace Bill’ states that “existing workers compensation provisions and common law tort law are inadequate to discourage such abusive conduct and provide adequate redress to employees who have been harmed by abusive work environments” (AB 4258). Also,

“discrimination law requires a plaintiff to show that the objectionable conduct was motivated by HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 26

her protected class status. Such motivation often is far from clear in bullying cases, even when the complainant is protected under discrimination law” (Yamada 2010). The EEOC’s purpose is

Figure 3.2 Relationship Between Abusive Conduct, the Civil Rights Act of 1964 and Healthy

Workplace Legislation

to ensure protected class citizens are treated equally in employment situations, while anti- bullying legislations purpose is to stop abusive conduct. Though similar, abusive conduct is broader and more inclusive. The definition from New York’s bill follows:

“Abusive conduct shall include, but not be limited to, repeated infliction of verbal abuse,

such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct

that a reasonable person would find threatening, intimidating or humiliating; or the

gratuitous sabotage or undermining of an employee’s work performance.” (AB 4258)

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 27

Emotional Intelligence and Emotional Drives

A major concern with workplace bullying legislation is the predominance of bullying

done by managers to their counterparts and their subordinates (Bowling & Beehr 2006, Canada

Safety Council 2000, and Namie 2007). One of a manager’s primary duties involves interacting

and coordinating with people in order to get work done. Thus “as managers, our people are our

only resource… Getting access to what people think in their shop is going on is the first, and

probably the biggest, problem for the manager. Judging the validity of stories about what is

going on is perhaps the toughest” (Hummel 1991). Managers assessments come from their

particular experiences, knowledge, and emotional intelligence (EI). The long-term success of

organizations, in part, resides in management’s ability to navigate through complex social and

technical interactions competently.

“Emotional intelligence is observed when a person demonstrates the competencies that

constitute self-awareness, self-management, social awareness, and social skills at appropriate

times and ways in sufficient frequency to be effective in the situation.” These skills “enable a

person to demonstrate intelligent use of their emotions in managing themselves and working

with others to be effective at work” (Boyatzis, Goleman, & Rhee 2000). Thus, Cherniss and

Goleman (2001) argue that technical and cognitive (IQ) level skills are thresholds for merely

entering the upper echelons of organizations because everyone competing for these positions possess the same base skills. Managerial candidates by definition possess some minimal technical and cognitive requirements to attain that position, otherwise they wouldn’t be there in the first place. Among distinguishing characteristics for those in leadership positions, emotional competencies were twice as prevalent as technical and cognitive skills combined. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 28

In general, the higher a position in an organization, the more EI mattered. For individuals

in leadership positions, 85 percent of their competencies were in the EI domain (Cherniss &

Goleman 2001). These increasingly discretionary skills include coordinating, analyzing,

synthesizing, negotiating, supervising, and mentoring (Bolles, 2006). The operational

philosophy of EI resides in the concept that “I will facilitate getting the work done using the

strengths of my team” by delegating authority out to those who are capable of completing the

task. EI mainly involves using professional experience with social and political judgment to

differentiate which problems are important, unimportant, solvable, and unsolvable, then making

managerial decisions accordingly.

Figure 3.3 Kruger and Dunnings Self-Knowledge Test

People lacking in self-awareness misperceive fundamental facts about themselves, in

spite of contrary evidence. Kruger and Dunning’s (1999) studies measuring individual self-

assessment found that the lowest scoring participants (in the 12th percentile) estimated themselves to be in the 62nd percentile, seriously overshooting their abilities (see Figure 3.3).

This lack of self-knowledge could be slightly countered with training and education, but could HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 29

not substantively overcome one’s inherent inability to assess oneself accurately. A follow up

study concluded that even with large amounts of evidence, poor performers failed to learn from

feedback (Ehrlinger, J., Johnson, K., Banner, M., Dunning, D. & Kruger, J. 2008).

Fundamentally, all decisions are emotional, and this becomes apparent when we look at

apathy. A person who suffers from apathy has a “quantitative reduction of self-generated

voluntary and purposeful behaviors” (Levy & Dubois 2006) or merely a lack of motivation,

interest or concern. In severe cases of apathy, or athymhormia, “patients are more or less— sometimes dramatically—indifferent to any environmental event as well as to their own condition (emphasis added)” (Habib 2004) to the point where they will not move, eat, bathe, or perform any sort of actions without prompting. This extreme disunity between emotion and action gives strong evidence that emotions drive every one of our motivations to do anything, lest we sit and blankly stare at the wall with no impulse or drive to exist. The field of neuro- economics is demonstrating through fMRI studies “the enormous influences our emotions have on every decision we make” (Lindstrom 2008). Emotions are then the internal catalyst of human action.

An internal verification of what is known and unknown shows comfort with being wrong.

“Acknowledging our mistakes is an intellectual and (especially) an emotional skill, and as such it evolves in tandem with our cognitive and psychological development. For instance, the intolerance we routinely impute to adolescents and wisdom we often ascribe to the elderly are, in part, reflections of different developmental stages in our relationship to wrongness” (Schulz

2010). This internal comfort with being wrong is based upon an internal comfort with oneself, and as such, reflects how we will treat other people. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 30

Vanderbilt’s emotional drivers of workplace bullying includes substance abuse,

psychological problems, narcissism, perfectionism, selfishness, and poorly controlled anger, all

of which manifest through disruptive and unprofessional behavior (see Figure 3.4). The

managers who suffer with these emotional maladaptations transfer their inner hostility to the

Figure 3.4 Vanderbilt’s Emotional Drivers

• Substance Abuse or Psychological Issues • Narcissism, Perfectionism, or Selfishness • Poorly Controlled Anger Due to Heightened Stress

work environment. Bullying by definition is not a single event, but a pattern of hostility. The

bully’s discomfort with delegation or inability to recognize appropriate action causes internal

friction which gets externalized. These ego related responses stem from denial, since denial is not a response to the facts, but to the emotions the facts evoke. Denial or self-deception manifests itself in disassociations of mental processes, allowing the individual to protect internal self-esteem needs by glossing over or immediately forgetting uncomfortable information on a subconscious or unconscious level, saving cognitive resources for social and biological necessities (von Hippel & Trivers 2011). Someone in sincere denial refuses to accept the facts as they are, so they are both the deceiver and the deceived, protecting a fragile emotional state through a false reality (Shulz 2010). If they could control their hostility, they’d be acting appropriately.

The manager lacking in technical skill and EI would be more likely to not recognize appropriate action (Mitroff & Silvers 2010 and Peter & Hull 1969) or become resistant to contrary input from subordinate staff (Boddy 2011 & Ergeneli, et al. 2010) due to wanting to HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 31 preserve their own self esteem needs or failing to implement feedback (Ehrlinger et al. 2008).

The competent manager, then, knows what they know and what they don’t know. By keeping their ego or self-esteem in check, they make the most appropriate decision possible.

“A typical source of strain occurs in authority systems when the person in authority is incompetent to the point of endangering the subordinates (Milgram 2009). Those who are competent enough to do their job may be bullied themselves by an incompetent manager

(Hershcovis et al. 2007) and forced into inappropriate actions. Ironically, having the emotional intelligence necessary to know you are incapable of performing the job (Boyatzis, Goleman, &

Rhee 2000) is not a likely trait of a bully supervisor who is indeed incapable of doing the job

(Johnson et. al 2010). Kruger and Dunning (1999) note that this lack of self-reflection is similar to a medical condition called anosognosia, or denial of disease. “One illustrious (and illustrative) victim of this strange syndrome, the late Supreme Court Justice William Douglas, claimed that he had no physical problems and cheerfully invited a reporter covering his stroke to join him for a hike” (Schulz 2010). This is also known as ‘blind to our own blindness’.

The tipping point for Vanderbilt’s emotionally driven behaviors comes when their inability to be tempered outweighs job performance or institutional civility. The absence of technical skill or emotional intelligence by itself is not a recipe for disaster. However, the individual compelled by unreformable disruptive and unprofessional behaviors harms organizations through poor leadership and emotional toxicity. It’s no wonder people leave or disengage from dysfunctional organizations. The primary difference, then, between the incompetent workplace bully and the “poor performing colleague” is the abrasiveness of the bully’s personality on those around them. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 32

Peter and Hull recognized that hierarchical structures tend to promote internal

consistency over competence, arguing “in most hierarchies super-competence is more objectionable than incompetence” because of its disturbance to the power structure.

Incompetence maintains organizational hierarchy through compliance (Peter & Hull 1969), while those who argue with the status quo or try to work around it disrupt the power structure by exposing the incompetence for what it is. The Vanderbilt “poor performing colleague” fits this description, and may be friendly and courteous while incapable of doing their job. Others may have wishful thinking that the colleague will eventually “get it,” but they won’t if they’ve been promoted to their highest level of incompetence. Work still needs to be done, and since they can’t perform effectively, decisions begin to bypass them. As water rushes around a boulder in the middle of a river, so too do processes begin working around the “poor performing colleague.” Their presence increases the productive workers occupational stress and are likely kept in place due to a combination of administrative inertia and overly optimistic performance evaluations which further entrench their position (Pynes 2009).

Structure

Habituation and S.O.P.

Negative and harmful work culture and procedural practices stay intact due to agentic state perpetuation or the dominance of alpha personality types (Hickson, Pichert, Webb, &

Gabbe 2007). The social construction of reality defines habituation as “any action which gets

repeated frequently [that] gets cast into a pattern, which can then be reproduced with an economy

of effort.” Once learned, habitualized patterns work on auto-pilot, in the background, so

psychological energy can be spent in the foreground on other tasks. For the most part in HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 33 organizational environments, habituation forms the basis of individual task completion, where

“decision-making is the emerging part of an iceberg of unreflective action” (Laroche 1995).

This primary psychological undercurrent becomes ingrained through repetition and proceeds without conscious thought. The status quo will not change until something sufficiently strong disrupts the pattern.

Returning again to Vanderbilt University’s six primary drivers behind unprofessional and disruptive behavior list, we see that both distant familiarity and the agentic state are understandable responses to unhealthy institutional situations. For example, an individual may know that the ‘bullying’ problem will not be addressed formally. In order to maintain internal balance, its significance gets rationalized down by increasing the importance of providing for family, or gaining professional experience, or as a ‘work hazard’ that will not change. The agentic state perpetuates continued negative work behaviors due to habituation. Individuals who have difficulty rationalizing away the bullying internalize the ill effects, as shown with 45% of bullied individuals suffering from PTSD (Namie 2007).

One of the functions of a standard operating procedures (S.O.P.) is to codify

‘understanding’ so that people who lack appropriate knowledge can bypass mistakes their predecessors made and perform the task as described. Standardization gives people a common basis for comparing their performance against others using the standard in place. The negative effects of agentic action make S.O.P.’s that much more important, and lead to the reasoning behind the need for standardization of workplace bullying guidelines. Without legal implications in place, the harmful behavior is being indirectly authorized because it is not formally prohibited.

Standardized anti-bullying policies and procedures induce uniformity by defining and codifying HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 34 behavioral standards, showing examples of behaviors outside of civil boundaries, and institutionally legitimizing the disciplinary structure which all employees work under.

When referenced, established protocols reduce the risk of lawsuits and give management recourse when enforcing policy. ELIN says that “in some states, courts have recognized the right of an employee to sue an employer when the employer fails or refuses to abide by the terms of a progressive discipline policy” (elinfonet.com 2011). Therefore, the policy needs to be well written (easily understood) and the disciplinary actions outlined need to be followed. When done correctly and utilized, the anti-bullying policy protects the organization, while not having one, or using one which is incomplete, contradictory, or ignored, places them at a liability.

Disruptive Behavior Pyramid

Figure 3.5 The Disruptive Behavior Pyramid

The Washington State Department of Labor and Industries (2011) recommends the use of the Disruptive Behavior Pyramid shown in Figure 3.5 (Hickson et. al 2007). This tool helps HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 35 institutionalize professional behavior through cultural change and managerial engagement. The guidelines utilize a peer and manager based review system where immediate and relevant information about unprofessional behavior is recognized and addressed. The first offense is talked about informally, giving the individual a chance to explain themselves and respond to the accusations accordingly. This informal handling of the first incident generally solves the problem, since the majority of incidents are isolated.

Figure 3.6 Vanderbilt’s Structural Drivers

• Poor Work Conditions • Bad Behavior is Rewarded • Administrative Inertia (bad behavior is not addressed by management)

The Disruptive Behavior Pyramid overcomes negative habitualized or agentic behaviors through culturally acceptable exposure. Team members discuss possible reasons why the behavior is occurring as shown in figure 3.6. If the behavior persists, the levels of institutional response increase accordingly, which either exposes internal processes that need to be corrected, or gives the offender a chance to get the help that they need, or provides the Human Resources department documentation of continued non-compliance. Without such preventive measures in place, the offender will often regress towards or continue their normal patterns, and hence be informally sanctioned by the organization, since nothing is being done to prevent it from happening.

Once the person’s actions reach the disciplinary level, enough documentation exists for demotion or termination. The person driven by emotional reasons to bully (substance abuse, psychological problem, narcissism, perfectionism, selfishness, family problems, and heightened HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 36

stress due to work conditions) who fails to respond to the repeated disciplinary action plans has

indirectly asked to be removed from employment through non-compliance. If repeated

counseling sessions fail to improve the individual’s behavior, the organization need not suffer

through more of the harmful side effects of inappropriate conduct. As shown by Boddy’s 2011

study, the elimination of these ‘bad apples’ reduces incidences of bullying by almost half, so is

well worth the efforts.

Termination and Litigation

The manager tasked with disciplining such an individual should be “committed to help…

establish positive progress and to learn how to better manage [their] role as part of the team”

(Musselwhite 2006). This placing of burden on the employee to improve, along with

documentation of progress (or lack thereof), places management in a position of positivity.

Adversarial role-playing exacerbates problems by flaring people’s emotions and breaking communication down, which eventually leads to poorer outcomes for both sides. “Therefore, extraordinary attention should be given to the ‘tone’ of the entire… procedure and how it is conducted. In general, well-planned, ‘humane’ procedures create less liabilities… especially with juries” (Schwartz 2005). “The ultimate weapon managers have is the ability to terminate employment… you hope you never have to use this last resort” (Shepard 2005 page 28). If it

becomes necessary, the separation should be amicable.

If an employee’s case goes to trial, the courtroom conditions facing the organization should be understood. The article A lawyers perspective on planning a reduction in force states

“the judicial system is not engaged in an academic endeavor to weigh and test theories in order to test the ultimate truth… Judgments… are often based on testimony from individuals with HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 37

faded memories about past events.” The article also quotes several studies which paint a bleak

picture for juries a company may be facing: 85% of survey respondents believe large

corporations hide information about their products until caught by the government, 75% of white males (known for being most likely to trust corporations) distrust corporations due to high profile scandals, and 75% of respondents believed that managers and senior executives would be more likely to perjure themselves than lower level employees (Schwartz 2005). Though any threat of litigation could make the corporate legal team skittish, repeated documentation of employees non-compliance with progressive disciplinary action protects the employer. Since the employee

(plaintiff) carries the burden of proof for bullying, they’ll have no legal ground to stand on.

Attempting to cover up for a strong producing bully or diminish the effects of the bully’s behavior may backfire. A Human Resources textbook quotes a 1990 study showing “more than

70% of supervisors surveyed admitted that they intentionally inflated or deflated their subordinates ratings for a variety of reasons” including wanting to keep departmental problems internal, not wanting to confront problem employees, wanting to reward ‘good’ employees regardless of results, or punish ‘bad’ employees in order to convince them to leave the organization (Pynes 2009). Inaccurate information in annual evaluations or performance audits may be used as evidence, so honest, accurate documentation is necessary.

Dealing with bullying, then, needs to come from a better approach. Currently, the most common responses from organizations to bullying are to ignoring the problem or siding with the perpetrator (Namie 2007). Given the predominance of management bullies, this is no surprise.

The EEOC guidelines state: HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 38

“Prevention is the best tool to eliminate harassment in the workplace. Employers are

encouraged to take appropriate steps to prevent and correct unlawful harassment. They

should clearly communicate to employees that unwelcome harassing conduct will not be

tolerated. They can do this by establishing an effective complaint or grievance process,

providing anti-harassment training to their managers and employees, and taking

immediate and appropriate action when an employee complains. Employers should strive

to create an environment in which employees feel free to raise concerns and are confident

that those concerns will be addressed” (EEOC 2012).

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CHAPTER 4

Conclusion

Holes in existing United States legislation, coupled with shortfalls in managerial practice unintentionally perpetuate negative work behaviors. With organizational leadership fearing litigation and workers fearing retribution, management needs a more proactive approach than disregarding the bully’s impact or blaming the target. Lee Bolman and Terrence Deal (1997) stated in Reframing Organizations that “too often, psychic prisons prevent seeing old problems in a new light or finding more promising tools to work on perennial challenges.” A firm recognition of management’s role in regulating the structural and emotional drivers of workplace bullying through better practice and human resource policies breaks the cycle of contrition and turnover. Like the obesity epidemic facing western society, workplace bullying is manageable when acknowledged and properly treated, and needs consistent effort to keep it from getting out of control.

Recommendation 1 - Management

Those who need anti-bullying legislation and policies the most are the least likely to follow them, either because of their emotional maladaptation to stress or the institution complicity allows their conduct to continue. Therefore, utilizing a team approach to handling bullying behaviors (as shown in the disruptive behavioral pyramid) through management enforced policies mandates accountability and disrupts the cycle of hostility. It identifies problem areas before they deteriorate further, documents repeated abusive conduct, and leads to progressive counseling based upon the number of occurrences. Once disciplinary action HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 41

becomes necessary, enough evidence exists to legally protect the organization when demotion or

termination takes place.

Recommendation 2 - Target

Many bullied individuals lack the self-efficacy to stand up for themselves. They tolerate

a toxic workplace in order to provide for their families. Few options are left for those working

within a hostile environment that have no managerial support, legal recourse, or other

employment opportunities, so informal options are the best remaining options. Robert Sutton’s

The No Asshole Rule recommends that the target learn to practice indifference and emotional

detachment while hoping for the best and expecting the worst. Keeping a journal of the

workplace transgressions and talking / joking around with colleagues who experientially

understand the nuances of the situation (Lutgen-Sandvik & McDermott 2011) helps alleviate the

emotional stress of sustained time in a toxic environment. The written record will help if managerial or legal remedies become available. Recognizing that “hurt people hurt people”

because the hostile individual never learned positive methods of handling problems (Al-Anon

2007) can also help separate the harmful action from the doer. Some organizations may become

increasingly hostile when an allegation arises, so becoming situationally passive may be

advantageous in regrouping until an alternative is found (Ferris 2004).

A good recommendation from the world of healthcare is called calling a “code pink”

(Longo 2010). This tactic only works when a group of individuals agree beforehand to come

together and stand up to a workplace bully. For example, a group of nursing staff work with

physician X, a known bully and verbally abrasive individual. They plan to call a “code pink” the

next time the aggressive behavior begins. Later that day, physician X becomes infuriated and HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 42 starts to yell at a nurse. A “code pink” gets called, summoning other nurses over to support their targeted colleague. Within a short time, the nurses on the code pink team surround the offending bully and stand and stare quietly until the aggressive behavior stops. This tactic works well because it upends social power dynamics and embarrasses the workplace bully into behaving more appropriately.

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Appendix 1: Assembly Bill 1582 – California http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml No. 1582 ASSEMBLY BILL

Introduced by Assembly Member Koretz (Coauthor(s): Assembly Member Negrete McLeod)

February 21, 2003

An act to add Part 12 (commencing with Section 9200) to Division 5 of the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST

AB 1582, as introduced, Koretz. Abusive work environments.

Existing law makes it an unlawful employment practice for an employer, including any person acting directly or indirectly as an agent of the employer, to harass any employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.

This bill would make it an unlawful employment practice to subject an employee to an abusive work environment, as defined, and would specify that an employer, as defined, is vicariously liable for a violation committed by its employee, but would prescribe certain affirmative defenses. The bill would also make it an unlawful employment practice to retaliate against an employee because the employee has opposed an unlawful employment practice under the bill or has made a charge, testified, assisted, or participated in an investigation or proceeding under the bill. The bill would specify that it is enforceable solely by a private right of action, would authorize injunctive relief and would limit an employer’s liability for emotional distress to $25,000 where the unlawful employment practice does not result in a negative employment decision, as defined. The bill would provide that an aggrieved employee may elect to seek compensation under the bill or the employee’s workers’ compensation remedy, but may not accept workers’ compensation and bring an action under the bill for the same underlying behavior. Digest Key HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 45

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO Urgency: NO Tax Levy: NO

Bill Text THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

(a) The Legislature finds and declares all of the following:

(1) The social and economic well-being of the state is dependent upon healthy and productive employees.

(2) Surveys and studies have documented that between 16 percent and 21 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and that this behavior is three times more prevalent than sexual harassment alone.

(3) Surveys and studies have documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, post-traumatic stress disorder, reduced immunity to infection, stress- related gastrointestinal disorders, hypertension, and pathophysiological changes that increase the risk of cardiovascular diseases.

(4) Surveys and studies have documented that abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and significant increases in medical and workers’ compensation claims.

(5) Unless mistreated employees have been subjected to abusive treatment at work on the basis of race, color, sex, national origin, or age, they are unlikely to have legal recourse to redress such treatment.

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status, such as is provided under employment discrimination statutes.

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or provide adequate redress to employees who have been harmed by abusive work environments.

(b) It is therefore the intent of the Legislature in enacting this act: HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 46

(1) To provide legal redress for employees who have been harmed psychologically, physically, or economically by being deliberately subjected to abusive work environments.

(2) To provide a legal incentive for employers to prevent and respond to mistreatment of employees at work.

SEC. 2.

Part 12 (commencing with Section 9200) is added to Division 5 of the Labor Code, to read: PART 12. ABUSIVE WORK ENVIRONMENTS

9200.

As used in this part, the following terms have the following meanings:

(a) “Abusive conduct” is conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. In considering whether abusive conduct is present, a trier of fact should weigh the severity, nature, and frequency of the conduct. Abusive conduct may include, but is not limited to, repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person’s work performance. A single act normally will not constitute abusive conduct, unless especially severe and egregious.

(b) “Abusive work environment” is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.

(c) “Conduct” is all forms of behavior, including acts and omissions of acts.

(d) “Constructive discharge” is (1) abusive conduct, (2) which causes the employee to resign, and (3) where, prior to resigning, the employee brings to the employer’s attention the existence of the abusive conduct, and (4) the employer fails to take reasonable steps to eliminate the abusive conduct.

(e) “Employee” is an individual employed by an employer, whereby the individual’s labor is either controlled by the employer or the individual is economically dependent upon the employer in return for labor rendered.

(f) “Employer” includes all individuals and private corporations, partnerships, associations, and unincorporated organizations that compensate individuals in return for performing labor. “Employer” also includes the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, the California State University and the University of California. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 47

(g) “Malice” is the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice may be inferred from the presence of one or more factors such as outward expressions of hostility, harmful conduct inconsistent with an employer’s legitimate business interests, a continuation of harmful, illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct, or attempts to exploit the complainant’s known psychological or physical vulnerability.

(h) “Negative employment decision” is a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action.

(i) “Physical harm” is the material impairment of a person’s physical health or bodily integrity, as documented by a competent physician or supported by competent expert evidence at trial.

(j) “Psychological harm” is the material impairment of a person’s mental health, as documented by a competent psychologist, psychiatrist, or psychotherapist, or supported by competent expert evidence at trial.

9201.

It is an unlawful employment practice under this part to subject an employee to an abusive work environment.

9202.

An employer is vicariously liable for an unlawful employment practice in violation of this part committed by its employee.

9203.

It is an affirmative defense to an action for an abusive work environment that the employer exercised reasonable care to prevent and promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when abusive conduct culminates in a negative employment decision.

9204.

It is an affirmative defense to an action for an abusive work environment that the complaint is grounded primarily upon a negative employment decision made consistent with an employer’s legitimate business interests, such as a termination or demotion based on an employee’s poor performance, or the complaint is grounded primarily upon an employer’s reasonable investigation of potentially illegal or unethical activity.

9205.

It is an unlawful employment practice under this part to retaliate in any manner against an employee because he or she has opposed any unlawful employment practice under this part or HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 48 because he or she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including, but not limited to, internal proceedings, arbitration or mediation proceedings, and legal actions.

9206.

Where a defendant has been found to have committed an unlawful employment practice under this part, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.

9207.

Where an employer has been found to have committed an unlawful employment practice under this part that did not result in a negative employment decision, the employer’s liability for damages for emotional distress may not exceed twenty-five thousand dollars ($25,000) and the employer may not be liable for punitive damages. This section does not apply to individually named co-employee defendants.

9208.

This part may be enforced solely by a private right of action.

9209.

An action commenced under this part may be commenced no later than one year after the last act that comprises the alleged unlawful employment practice.

9210.

Nothing in this part may be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any other law of this state.

9211.

The remedies in this part are in addition to remedies under the workers’ compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this part may elect to accept workers’ compensation benefits in connection with the underlying behavior in lieu of bringing an action under this part. A person who elects to accept workers’ compensation may not bring an action under this part for the same underlying behavior.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 49

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 50

Appendix 2: Assembly Bill 4258 – New York

BILL NO A04258

SAME AS Same as S 4289

SPONSOR Englebright

Establishes a civil cause of action for employees who are subjected to an abusive work environment. A04258 Text:

S T A T E O F N E W Y O R K ______

4258

2011-2012 Regular Sessions

I N A S S E M B L Y

February 2, 2011 ______

Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the Committee on Labor

AN ACT to amend the labor law, in relation to establishing a private cause of action for an abusive work environment

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS:

1 Section 1. The labor law is amended by adding a new article 20-D to 2 read as follows: 3 ARTICLE 20-D 4 ABUSIVE WORK ENVIRONMENT 5 SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 6 761. DEFINITIONS. 7 762. ABUSIVE WORK ENVIRONMENT. 8 763. EMPLOYER LIABILITY. 9 764. DEFENSES. 10 765. RETALIATION. 11 766. REMEDIES. 12 767. ENFORCEMENT. 13 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 14 769. EFFECT OF OTHER LAWS. 15 S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS 16 THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON 17 HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED 18 THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE- 19 RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. 20 SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE 21 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS 22 CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 51

23 OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, 24 DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO 25 INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08789-01-1

A. 4258 2

1 PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR 2 DISEASES. 3 FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN 4 HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE 5 PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND 6 SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS. 7 THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE 8 BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF 9 RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO 10 HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. 11 THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE 12 WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A 13 PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT- 14 UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW 15 ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE 16 REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. 17 THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR 18 EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM- 19 ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND 20 TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO 21 MISTREATMENT OF EMPLOYEES AT WORK. 22 S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL 23 HAVE THE FOLLOWING MEANINGS: 24 1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN 25 EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A 26 REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO 27 THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER 28 SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, 29 NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT 30 NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE 31 OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT 32 THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI- 33 ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK 34 PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS 35 THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 36 2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE 37 IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS- 38 ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE 39 PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO 40 ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS 41 TO ELIMINATE THE ABUSIVE CONDUCT. 42 3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS 43 TO ACT. 44 4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE 45 THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 46 5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO- 47 LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI- HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 52

48 FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS 49 OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN 50 EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND 51 ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR 52 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF 53 THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG- 54 ICAL OR PHYSICAL VULNERABILITY.

A. 4258 3

1 6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE 2 DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR 3 DISCIPLINARY ACTION. 4 7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS- 5 ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN 6 OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 7 8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S 8 MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY 9 COMPETENT EXPERT EVIDENCE AT TRIAL. 10 S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN 11 EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT. 12 S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE 13 EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS 14 CONTROL. 15 S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF 16 ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON- 17 ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS 18 THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED 19 TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU- 20 NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE 21 AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA- 22 TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 23 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE 24 WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION 25 WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S 26 LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON 27 THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY 28 UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, 29 ILLEGAL OR UNETHICAL ACTIVITY. 30 S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG- 31 ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY 32 PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS 33 CHAPTER. 34 S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED 35 IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, 36 THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV- 37 ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT 38 NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE 39 PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL 40 EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND 41 ATTORNEY FEES. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 53

42 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN 43 ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT 44 DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS 45 SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL- 46 ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT 47 APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT. 48 S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE 49 BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 50 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, 51 AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED 52 WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE 53 ALLEGATION OF ABUSIVE WORK ENVIRONMENT. 54 S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL 55 NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN 56 EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES

A. 4258 4

1 GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL 2 THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING 3 AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE- 4 MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING 5 AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER 6 RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED 7 COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY 8 THE PROVISIONS OF THIS ARTICLE. 9 S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE 10 DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL- 11 TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 12 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY 13 COMPENSATION AVAILABLE PURSUANT TO THE WORKERS' COMPENSATION LAW; 14 PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS' COMPEN- 15 SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON- 16 MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS 17 ARTICLE FOR THE SAME SUCH CONDITIONS. 18 S 2. This act shall take effect immediately, and shall apply to 19 abusive conduct occurring on or after such date.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 54

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 55

Appendix 3: Generic Bully Policy ANTI-BULLYING POLICY

[YOUR COMPANY] is committed to providing all employees a healthy and safe work environment. [YOUR COMPANY] will ensure that procedures exist to allow complaints of bullying to be dealt with and resolved within [YOUR COMPANY], without limiting any person’s entitlement to pursue resolution of their complaint with the relevant statutory authority. [YOUR COMPANY] is committed to the elimination of all forms of bullying.

This policy applies to all employees of [YOUR COMPANY]. It applies during normal working hours, at work related or sponsored functions, and while traveling on work related business. There will be no recriminations for anyone who in good faith alleges bullying.

DEFINITIONS Bullying is unwelcome or unreasonable behavior that demeans, intimidates or humiliates people either as individuals or as a group. Bullying behavior is often persistent and part of a pattern, but it can also occur as a single incident. It is usually carried out by an individual but can also be an aspect of group behavior (see “mobbing” below). Some examples of bullying behavior are: Verbal communication

• Abusive and offensive language • Insults • Teasing • Spreading rumor and innuendo • Unreasonable criticism • Trivializing of work and achievements

Manipulating the work environment

• Isolating people from normal work interaction • Excessive demands • Setting impossible deadlines

Psychological manipulation

• Unfairly blaming for mistakes • Setting people up for failure • Deliberate exclusion • Excessive supervision • Practical jokes • Belittling or disregarding opinions or suggestions • Criticizing in public HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 56

Context is important in understanding bullying, particularly verbal communication. There is a difference between friendly insults exchanged by long-time work colleagues and comments that are meant to be, or are taken as, demeaning. While care should be exercised, particularly if a person is reporting alleged bullying as a witness, it is better to be genuinely mistaken than to let actual bullying go unreported.

Mobbing Mobbing is a particular type of bullying behavior carried out by a group rather than by an individual. Mobbing is the bullying or social isolation of a person through collective unjustified accusations, humiliation, general harassment or emotional abuse. Although it is group behavior, specific incidents such as an insult or a practical joke may be carried out by an individual as part of mobbing behavior.

CONSEQUENCES OF BULLYING Bullying is unacceptable behavior because it breaches principles of equality and fairness, and it frequently represents an abuse of power and authority. It also has potential consequences for everyone involved. For those being bullied People who have been bullied often suffer from a range of stress-related illness. They can lose confidence and withdraw from contact with people outside the workplace as well as at work. Their work performance can suffer, and they are at increased risk of workplace injury. For the employer Besides potential legal liabilities, the employer can also suffer because bullying can lead to:

• Deterioration in the quality of work • Increased absenteeism • Lack of communication and teamwork • Lack of confidence in the employer leading to lack of commitment to the job

For others at the workplace People who witness bullying behaviors can also have their attitudes and work performance affected. They can suffer from feelings of guilt that they did nothing to stop the bullying, and they can become intimidated and perform less efficiently fearing that they may be the next to be bullied.

RESPONSIBILITIES

Managers and supervisors

• Ensure that all employees are aware of the anti-bullying policy and procedures • Ensure that any incident of bullying is dealt with regardless of whether a complaint of bullying has been received HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 57

• Provide leadership and role-modeling in appropriate professional behavior • Respond promptly, sensitively and confidentially to all situations where bullying behavior is observed or alleged to have occurred

Employees

• Be familiar with and behave according to this policy • If you are a witness to bullying, report incidents to your supervisor, President or Human Resources Director as appropriate • Where appropriate, speak to the alleged bully(ies) to object to the behavior

IF YOU THINK YOU HAVE BEEN BULLIED

• Any employee who feels he or she has been victimized by bullying is encouraged to report the matter to his or her supervisor, or with Human Resources. • Where appropriate, an investigation will be undertaken and disciplinary measures will be taken as necessary.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 58

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 59

BIBLIOGRAPHY

Al-Anon (2007). From survival to recovery: Growing up in an alcoholic home. Virginia

Beach, VA. Al-Anon Family Groups.

Bandura, A. (1994). Self-efficacy. In V. S. Ramachaudran (Ed.), Encyclopedia of human

behavior (Vol. 4, pp. 71-81). New York: Academic Press, retrieved from

http://www.des.emory.edu/mfp/BanEncy.html on July 10,2010.

Boddy, C. (2011). Corporate psychopaths, bullying and unfair supervision in the workplace.

Journal Of Business Ethics, 100(3), 367-379.

Bonnefon, J., Feeney, A., & De Neys, W. (2011). The risk of polite misunderstandings. Current

Directions in Psychological Science. 20(5), 321-324.

Bowling, N., & Beehr, T. (2006). Workplace harassment from the victim’s perspective: A

theoretical model and meta-analysis. Journal of Applied Psychology, 91(5), 998-1012.

Bureau of Labor Statistics (2011). BLS spotlight on statistics: Women at work. Retrieved from

http://www.bls.gov/spotlight/2011/women/audio.htm on February 24,2012.

California Assembly Bill 1582 (2003). Abusive work environments. Retrieved from

http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml on February 11,2012.

Campbell, B., & Alleyne, S. (2002). The high cost of turnover. Black Enterprise, 33.

Canada Safety Council (2000). Bullying in the workplace. Retrieved from

http://canadasafetycouncil.org/workplace-safety/bullying-workplace on February

25,2012.

Carnevale, T. (2005). The coming labor and skills shortage. T+D, 59(1), 37-41. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 60

Centers for Disease Control (2012). Adult obesity. Retrieved from

http://www.cdc.gov/obesity/data/adult.html on March 6,2012.

Cohen, A. (2010). New laws target workplace bullying. Retrieved from

http://www.time.com/time/nation/article/0,8599,2005358,00.html on February 14, 2012.

Collins, E. (2011). Workplace bullying: A global issue. Retrieved from

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202519795096 on February

14,2012.

Creswell, J. (1998). Qualitative inquiry and research design. Choosing among five traditions.

Newberry Park, CA. Sage Publications.

Ehrlinger, J., Johnson, K., Banner, M., Dunning, D. & Kruger, J. (2008). Why the unskilled are

unaware: Further explorations of (absent) self-insight among the incompetent.

Organizational Behavior and Human Decision Processes, 105(1), 108-121.

Employment Law Information Network (2011) Employment at will. Retrieved from

http://www.elinfonet.com/human-resources/Employment-At-Will/ on October 1, 2011.

Ergeneli, A., Camgoz, S. & Karapinar, P. (2010). The relationship between self-efficacy and

conflict handling styles in terms of relative authority positions of the two parties. Social

Behavior & Personality: An International Journal, 38(1), 13-28.

Ettorre, B. (1997). The unvarnished truth. Management Review, 86(6), 54-57.

Eurofound (2012) Mobbing. Retrieved from

http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/MOBBI

NG.htm on February 17, 2012. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 61

Fast, N. & Chen, J. (2009). When the boss feels inadequate: Power, incompetence, and

aggression. Psychological Science, 20(11), 1406-1413.

Ferris, P. (2004). A preliminary typology of organisational response to allegations of workplace

bullying: see no evil, hear no evil, speak no evil. British Journal Of Guidance &

Counselling, 32(3), 389-395.

Giacalone, R. A., Knouse, S. B., & Montagliani, A. (1997). Motivation for and prevention of

honest responding in exit interviews and surveys. Journal Of Psychology, 131(4), 438-

448.

Griffeth, R., Homm, P., & Gaertner, S. (2000). A meta-analysis of antecedents and correlates of

employee turnover: Update, moderator tests, and research implications for the next

millennium. Journal of Management, 26(3), 463-488.

Habib, M. (2004). Athymhormia and disorders of motivation in basal ganglia disease. The

Journal of Neuropsychiatry and Clinical Neurosciences, (16)4, 509-524.

Hansen, F. (2008). Concern in the C-suite. Workforce Management, 87(4), 18-19.

Health Care Manager (2005). A manager asks: working and coping with physicians. Health Care

Manager, 24(1), 89-91.

Healthy Workplace Bill (2012) Index. Retrieved from

http://www.healthyworkplacebill.org/index.php. on January 30, 2012.

Hershcovis, M., Turner, N., Barling, J., Arnold, K., Dupre´, K., Inness, M., et al. (2007).

Predicting workplace aggression: A meta-analysis. Journal of Applied Psychology, 92(1),

228-238. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 62

Hickson, G., Pichert, J., Webb, L., & Gabbe, S. (2007). A complementary approach to

promoting professionalism: Identifying, measuring, and addressing unprofessional

behaviors. Academic Medicine, 82(11), 1040-1048.

Hindelang, R., Schwerin, M., & Farmer, W. (2004). Quality of life (QOL) in the U.S. Marine

Corps: The validation of a QOL model for predicting reenlistment intentions. Military

Psychology, 16(2), 115-134.

Hoel, H., & Einarsen, S. (2010). The Swedish ordinance against victimization at work: a critical

assessment. Comparative Labor Law & Policy Journal, 32(1), 225-249.

Hummel, R. (1991). The stories managers tell: Why they are valid as science. Public

Administration Review, (51)1, 31-41.

Johnson, R. E., Silverman, S. B., Shyamsunder, A., Swee, H., Rodopman, O., Cho, E., & Bauer,

J. (2010). Acting superior but actually inferior?: Correlates and consequences of

workplace arrogance. Human Performance, 23(5), 403-427.

Joint Commission (2008) Behaviors that undermine a culture of safety. Retrieved from

http://www.jointcommission.org/assets/1/18/SEA_40.PDF on February 12, 2012.

Ketter, P. (2008) What's the big deal about employee engagement? T+D,62(1), 44-49.

Knouse, S. B., Beard, J. W., & Pollard, H. (1996). Willingness to discuss exit interview topics:

the impact of attitudes toward supervisor and authority. Journal Of Psychology, 130(3),

249-261. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 63

Kruger, J. & Dunning, D. (1999). Unskilled and unaware of it: How difficulties in recognizing

one's own incompetence lead to inflated self-assessments. Journal of Personality and

Psychology, 77(6), 1121-1134.

Landry, G. & Vanderberghe, C. (2009). Role of commitment to the supervisor, leader-member

exchange, and supervisor-based self-esteem in employee-supervisor conflicts. The

Journal of Social Psychology, 149(1), 5-27.

Larson, C. (1998). Persuasion: Reception and responsibility. Eighth edition. Belmont, CA.

Wadworth Publishing Company.

Larson, M. (2007). Stamping out workplace bullies. Workforce Management. Retrieved from

http://www.workforce.com/article/20070713/NEWS02/307139992 on February 14,2012.

Level Playing Field Institute (2007). The corporate leavers survey. Retrieved from

http://www.lpfi.org/sites/default/files/cl-executive-summary.pdf on March 4, 2012.

Levy, R. & Dubois, B. (2006). Apathy and the functional anatomy of the prefrontal cortex–basal

ganglia circuits. Cerebral Cortex, (16)7, 916-928.

Leymann, H. (1996). The content and development of mobbing at work. European Journal of

Work and Organizational Psychology, 5(2), 165-184.

Liedtka, J., Haskins, M., Rosenblum, J., & Weber, J. (1997). The generative cycle: Linking

knowledge and relationships. MIT Sloan Management Review, 39(4) 47-58.

Lindstrom, Martin (2008). Buyology. Truth and lies about why we buy. New York, NY.

Doubleday books. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 64

Longo, J. (2010). Combating Disruptive Behaviors: Strategies to Promote a Healthy Work

Environment. Online Journal of Nursing. Retrieved from

http://www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/

OJIN/TableofContents/Vol152010/No1Jan2010/Combating-Disruptive-Behaviors.html

on April 27,2012.

Lutgen-Sandvik, P., & McDermott, V. (2011). Making sense of supervisory bullying: Perceived

powerlessness, empowered possibilities. Southern Communication Journal, 76(4), 342-

368.

MacIntosh, J. (2005). Experiences of workplace bullying in a rural area. Issues In Mental Health

Nursing, 26(9), 893-910.

Mainichi (2012). Panel says bullying by peers, subordinates also power harassment. Retrieved

from http://mdn.mainichi.jp/mdnnews/news/20120131p2g00m0dm019000c.html on

February 12, 2012

McKinney, J., Hargis, J., & Young, C. (2007). Bully ban needed. Workforce Management,

86(16), 41.

Meyer, S. (2004). Organizational response to conflict: Future conflict and work outcomes.

Social Work Research, 28(3), 183-190.

Milgram, S. (2009). Obedience to authority: an experimental view. New York, NY.

HarperCollins.

Morse, D. (2007). Workplace mobbing: Pestering power. Retrieved from

http://www.postonline.co.uk/post/analysis/1231727/pestering-power on April 20, 2012. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 65

Musselwhite, C. (2006) How to fire an employee. Retrieved from

http://www.inc.com/resources/leadership/articles/20060801/musselwhite.html on October

1,2011.

Namie, G. (2010). The Workplace Bullying Institute 2010 U.S. workplace bullying survey.

Retrieved from http://www.workplacebullying.org/wbiresearch/2010-wbi-national-

survey/ on February 5, 2012.

Namie, G. (2007). The Workplace Bullying Institute 2007 U.S. workplace bullying survey.

Retrieved from http://www.workplacebullying.org/wbiresearch/wbi-2007/ on January 29,

2012.

Namie, G. & Namie, R. (2000). The bully at work: What you can do to stop the hurt and

reclaim dignity on the job. Naperville, Il. Sourcebooks Inc.

National Institute for Occupational Health and Safety (2004). Most workplace bullying is worker

to worker, early findings from NIOSH study suggest. Retrieved from

http://www.cdc.gov/niosh/updates/upd-07-28-04.html on February 19,2012.

Nauta, A., & Sanders, K. (2001). Causes and consequences of perceived goal differences

between departments within manufacturing organizations. Journal of Occupational &

Organizational Psychology, 74(3), 321-342.

New York Assembly Bill 4258 (2011). Healthy workplace bill. Retrieved from

http://assembly.state.ny.us/leg/?default_fld=%0D%0A&bn=a4258&Summary=Y&Text=

Y on February 11,2012. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 66

Notelaers, G., Einarsen, S., De Witte, H., & Vermunt, J. (2006). Measuring exposure to bullying

at work. The advantages and validity of the latent cluster approach. Work & Stress, 20(4),

288-301.

Payne, D. (2011). Stand up to abuse. Nursing Standard, 25(42), 64.

Peter, L. & Hull, R. (1969). The Peter Principle. New York, NY. William and Morrow Co.

Pew Research Center (2010). The decline in marriage and the rise of new families. Retrieved

from http://www.pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-

new-families/6/ on February 24,2012.

Pynes, J. (2009). Human resources management for public and nonprofit organizations: a

strategic approach. Third edition. San Francisco, CA. Jossey-Bass.

Quine, L. (1999) Workplace bullying in NHS community trust: staff questionnaire survey.

British Medical Journal 318(7178), 228–232.

Service Employees International Union 721 (2011) Workplace bullying report on Ventura

county. Retrieved from http://www.scribd.com/doc/68692524/Workplace-Bullying-

Report-on-Ventura-County#archive on February 10,2012.

Schiebe, J. (2011) Grand jury finds workplace bullying a problem within county government.

Ventura County Star retrieved from http://www.vcstar.com/news/2011/jun/16/grand-jury-

finds-workplace-bullying-a-problem/ on February 11,2012.

Schwartz, K. (2005) A lawyers perspective on planning a reduction in workforce. Economic

Perspectives. 29(2), 94-107. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 67

Shepard, G. (2005) How to manage problem employees: A step by step guide for turning

difficult employees into high performers. Hoboken, NJ. John Wiley and sons.

Shulz, K. (2010). Being wrong: Adventures in the margins of error. New York, NY.

Harpercollins.

Solomon, K., & Annnis, H. (1990). Outcome and efficacy expectancy in the prediction of post-

treatment drinking behaviour. British Journal of Addiction, 85(5), 659-665.

Sundem, G. (2010). Brain candy: science, paradoxes, puzzles, and illogic to nourish your

neurons. New York, NY. Three Rivers Press.

Sutton R. (2007). The no asshole rule: Building a civilized workplace and surviving one that

isn’t. New York, NY. Warner Business Books.

Tulacz, G. (2001). Staff turnover plagues contractors despite remedies. ENR: Engineering News-

Record, 247(23), 14.

Tuna, C. (2008). Lawyers and employers take the fight to "Workplace Bullies" Retrieved from

http://online.wsj.com/article/SB121779280946008121.html on February 11, 2012.

UNISON (2003) Bullying at work: Guidelines for UNISON branches, stewards, and safety

representatives. Retrieved from http://www.unison.org.uk/acrobat/13375.pdf on

February 24, 2012.

United States Equal Employment Opportunity Commission (2012). Harassment. Retrieved

from http://www.eeoc.gov/laws/practices/harassment.cfm on February 14, 2012 HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 68

United States Equal Employment Opportunity Commission (2012). Harassment statistics.

Retrieved from http://www.eeoc.gov/eeoc/statistics/enforcement/harassment.cfm on

February 17, 2012.

Ventura County Grand Jury (2011). Final report: Bullying in the workplace. Retrieved from

http://portal.countyofventura.org/portal/page/portal/Grand_Jury/Reports on February

12,2012

von Hippel, W. & Trivers, R. (2011). The evolution and psychology of self-deception.

Behavioral and brain sciences (34)2, 1-56.

Washington State Department of Labor and Industries (2011) Workplace bullying and disruptive

behavior: What everyone needs to know. Retrieved from

http://www.lni.wa.gov/Safety/Research/Files/Bullying.pdf on February 25, 2012.

Workplace Fairness (2011) At will employment. Retrieved from

http://www.workplacefairness.org/sc/protections.php on October 1, 2011.

Worksafe (2005). New campaign to stop workplace bullying. Retrieved from

http://www.worksafe.vic.gov.au/wps/wcm/connect/wsinternet/worksafe/sitetools/news/i

mport-new+campaign+to+stop+workplace+bullying on March 2, 2012.

Yagil, D., Ben-Zur, H., & Tamir, I. (2011). Do employees cope effectively with abusive

supervision at work? An exploratory study. International Journal Of Stress Management,

18(1), 5-23.

Yamada, D. (2010). Workplace bullying and American employment law: a ten-year progress

report and assessment. Comparative Labor Law & Policy Journal, 32(1), 251-284. HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 69

Yin, R. (1989). Case study research: Design and methods. Newberry Park, CA. Sage

Publications.

HEALTHY WORKPLACE LEGISLATION: A CRITICAL LOOK AT MANAGEMENTS ROLE 70