Law and Policy Remedies for Workplace Bullying in Higher Education: An Update and Further Developments in the Law and Policy John Dayton, J.D., Ed. D.* A dark and not so well kept secret lurks the halls of higher education institutions. Even among people who should certainly know better than to tolerate such abuse, personnel misconduct in the form of workplace bullying remains a serious but largely neglected problem.1 A problem so serious it can devastate academic programs and the people in them. If allowed to maraud unchecked, workplace bullies can poison the office culture; shut down progress and productivity; drive off the most promising and productive people; and make the workplace increasingly toxic for everyone who remains in the bully dominated environment.2 A toxic workplace can even turn deadly when stress begins to take its all too predictable toll on victims’ mental and physical health, or interpersonal stress leads to acts of violence.3 Higher education institutions are especially vulnerable to some of the most toxic forms of workplace bullying. When workplace bullies are tenured professors they can become like bullying zombies seemingly invulnerable to efforts to stop them while faculty, staff, students, and even university administrators run for cover apparently unable or unwilling to do anything about the loose-cannons that threaten to sink them all. This article examines the problem of workplace bullying in higher education; reviews possible remedies; and makes suggestions for law and policy reforms to more effectively address this very serious but too often tolerated problem in higher education. * This article is dedicated to the memory of Anne Proffitt Dupre, Co-Director of the Education Law Consortium, Professor of Law, Law Clerk for the U.S. Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit, trusted friend and colleague, and zealous advocate for justice and civility in the workplace. John Dayton is a Professor of Education Law and Adjunct Professor of Higher Education at the University of Georgia. 1 See David C. Yamada, Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment, 32 COMP. LAB. L. & POL’Y J. 251, 253 (2010) (“Overall, workplace bullying remains the most neglected form of serious worker mistreatment in American employment law”). See also Irvin Lawrence et al., Bullying and Harassment in the Workplace: An International Perspective, 23 EMP. & INDUS. REL. L. 24, 24 (2013) (“In spite of its increasing prevalence, workplace harassment and specifically bullying continues to be under- reported and is often ignored by employers”); Susan H. Duncan, College Bullies—Precursors to Campus Violence: What Should Universities and College Administrators Know About the Law?, 55 VILL. L. REV. 269, 269 (2010). (“attention has not been devoted to post-adolescent bullying, despite the continuing propensities of grade school and high school bullies to torment others in college and later in the workplace”). 2 Yamada, supra note 1, at 274 (2010) (citing a 2008 Joint Commission medical accrediting standard recognizing that acts such as workplace bullying and harassment “can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and managers to seek new positions in more professional environments”). 3 See Florence Z. Mao, Is Litigation Your Final Answer? Why the Healthy Workplace Bill Should Include an ADR Provision, 21 J.L. & POL’Y 679, 686 (2013) (“Targets experience psychological effects such as stress, depression, loss of sleep, and low self-esteem, as well as feelings of shame, guilt, and embarrassment. In more severe instances, they may develop posttraumatic stress disorder, which, if left untreated, may cause an individual to react violently against either the bully or another coworker”). See also Duncan, supra note 1, at 276 (describing campus violence resulting from bullying). 1 Defining Workplace Bullying Workplace bullying may take as many forms as there are perpetrators and circumstances. It may be overt or covert; simple-minded or elaborately Machiavellian. The most candid definition for workplace bullying may be the definition given to obscenity by Justice Douglas: “I know it when I see it.”4 But while those exposed to workplace bullying may recognize it when they see it,5 articulating a precise legal definition can be challenging. Nonetheless, an adequate working definition is essential to assure due process and the fair, efficient, and effective administration of employment laws and institutional policies.6 In understanding and defining workplace bullying it may also be useful to define what it is not. Workplace bullying is not an expression of free speech.7 It is not the exercise of academic freedom.8 Nor is it mere incivility or interpersonal rudeness.9 Workplace bullying is an egocentric, intentional, and systematic effort to harm others in the workplace, a serious act of employment misconduct. Perpetrators do not commonly cross the line to criminality. But like a criminal act there is both an actus reas and a mens rea in workplace bullying. Workplace bullying involves acts that breach the bounds of acceptable workplace conduct and do so with the intent to harm others. Workplace bullying is not a mere accident or interpersonal misunderstanding. It involves intentional acts knowingly aimed at targeted victims with the purpose of inflicting psychological suffering and other harms.10 There are varied definitions of workplace bullying, but many share common elements including language concerning prohibited acts; intent to harm; patterns of interpersonal misconduct; negative impacts on victims; and interference with workplace performance.11 Yamada defined workplace bullying as “the intentional infliction of a hostile work environment upon an employee by a coworker or coworkers, typically through a combination of verbal and 4 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). 5 A key challenge in rallying support for the adoption of protective policies is that people often don’t get the problem until it gets them. Compare Pastor Martin Niemöller (1892-1984) (“They came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for me and by that time no one was left to speak up”). 6 JOHN DAYTON, EDUCATION LAW: PRINCIPLES, POLICIES, AND PRACTICE 240 (2012) (summarizing essential principles of due process in educational institutions). 7 Connick v. Myers, 461 U.S. 138 (1983) (matters of personal concern and not public concern are not protected speech in the workplace). 8 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS (AAUP), STATEMENT OF PRINCIPLES ON ACADEMIC FREEDOM AND TENURE (1940) (recognizing that concerning the exercise of academic freedom faculty “should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others”). 9 See Mao, supra note 3, at 684-685 (2013) (“Unlike general aggression or incivility, which involve isolated instances of rudeness or crass behavior, workplace bullying involves repetition, duration, and escalation, creating an ongoing pattern of abusive behavior”). See also GARY NAMIE & RUTH F. NAMIE, THE BULLY-FREE WORKPLACE 6 (2011) (“Compared with incivility, bullying is a laser-focused, systematic campaign of interpersonal destruction”). 10 See Jordan F. Kaplan, Help is on the Way: A Recent Case Sheds Light on Workplace Bullying, 47 HOUS. L. REV. 141, 142 (2010) (“Workplace bullying consists of repeated hostile behavior designed to empower the bully at the expense of the victim”; “Many victims of bullying suffer psychological damage similar to post-traumatic stress disorder”). 11 See also Mao, supra note 3, at 684 (2013) (“definitions have three unifying themes: (1) the bullying activity is persistent and intentional; (2) the Target suffers a combination of psychological, physical, and economic harm as a result; and (3) the bullying activity creates an overall hostile work environment”). 2 nonverbal behaviors.”12 Tepper & White defined workplace bullying in academic settings as follows: [W]orkplace bullying . is commonly defined as behavior by a perpetrator that may involve repeated verbal abuse, offensive conduct that may threaten, humiliate, or intimidate a target, or efforts to sabotage a target's performance. As commonly defined, the subject behavior is intentional, results in physical or psychological harm to the target, and makes the target's job performance more difficult.13 Workplace bullying in academia is often not just the employment misconduct of a lone perpetrator. Tepper & White recognized an especially dangerous form of workplace bullying in academia, “academic mobbing” perpetrated by groups: “At times, perpetrators, who may include administrators and faculty members, combine their efforts to abuse and harass the target, a phenomenon known as ‘mobbing.’”14 Concerning the prevalence of workplace bullying evidence suggests that workplace bully is “an epidemic, with fifty-four million people--amounting to 37% of American workers--who have reported being the victims of bullying.”15 Further, the impact of workplace bullying is likely to extend far beyond its direct targets, damaging morale and productivity throughout the organization.16 Although workplace bullying may sometimes include status-based harassment related to race, color, religion, sex, national origin, age, disability, etc., non-status based workplace