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Back Off, Bully! Understanding Workplace Bullying and How to Investigate It

Ashley Lattal, Esq.Lattal Law

Catherine Mattice Zundel, MA, SPHR, SHRM-SCP

Civility Partners

Carole Ross, Esq., AWI-CHRoss Employment Law

Bullying or Harassment

The Legal Perspective

Canadian Federal Law• Soon to be in force for federally regulated employees• Expands Occupational Health and Safety legislation from just preventing

accidents and injuries to including prevention of harassment and violence and psychological injuries and illness;

• Definition of Harassment and Violence: ”Any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment";

• Duty to investigate occurrences known to the employer and provide support to affected employees

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Canada: Ontario• Occupational Health and Safety Act• Definition of workplace harassment: Engaging in a course of vexatious

comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

• Reasonable management action is specifically excluded• Requires employers to provide training and have harassment

policy/procedure

AustraliaFair Work Act(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Australia

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United States Federal Law

• No federal law• Title VII pf the Civil Rights Act of 1964 does not address bullying

or “harassment” that is not based upon a protected characteristic

• Not unlawful• Requires training to prevent abusive conduct• Abusive conduct: verbal, nonverbal, physical conduct that, based on its

severity, nature and frequency of occurrence:• a reasonable person would determine is intended to cause intimidation,

humiliation or unwarranted distress;• or results in substantial physical or psychological harm; or• Exploits an employee’s known physical or psychological disability

• A single act does not constitute abusive conduct unless especially severe and egregious

• Utah Admin Code R477-16-1

United States: Utah

• Not unlawful• Many employers required to provide training to prevent abusive conduct• Abusive conduct: Conduct in the workplace, with malice, that a

reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests.

United States: California

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• May include 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 shall not constitute abusive conduct, unless especially severe and egregious.

• Cal. Gov. Code § 12950.1

United States: California

United States: Tennessee• In certain circumstances employers may be sued for infliction of mental

anguish based upon employees’ abusive conduct• Abusive conduct includes (but is not limited to):

• repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;

• verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; and/or

• the sabotage or undermining of an employee’s work performance in the workplace

• Tennessee §50-1-502

United States• Legislators in many other states are trying to pass the Healthy

Workplace Bill• Introduced in more than 20 states• Prohibits conduct creating an abusive work environment

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The Academic Perspective

Workplace Bullying

Repeated and persistent negative acts towards one or more individuals, which involve a perceived power imbalance and create a hostile work environment.

Salin (2003)

One or several individuals persistently, and over a period of time, perceive themselves as being on the receiving end of negative actions, where the target finds it difficult to defend against these actions.

Systematic and prolonged exposure to repeated negative and aggressive

behaviour of a primarily psychological nature.

Nielson & Einarsen (2012)

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Bullying Behaviors

AB2053: Abusive Conduct

May include 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.

• Anxiety; depression• Marginalization• Detachment from work/clients• Discouragement• Psychosomatic symptoms• Absenteeism; presenteeism• Employee turnover• Wasted time• Workers comp claims• Health insurance costs• Litigation• PTSD• Suicide• Violence

• Quality/quantity of work• Safety• Self-esteem• Job satisfaction• Customer satisfaction• Company loyalty • Learning and innovation• Physical health• Community reputation• Relationships• Internal communication• Ability to meet goals• Bottom line / revenue

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What Targets Say

SJ Tracy, P Lutgen-Sandvik, JK Alberts, (2006)Management Communication Quarterly

• Battle• War• Playing a game• Maimed• Assassinated

Process = Nightmare or Battle

• Beaten• Abused• Ripped• Annihilated• Serial rape

Abrasive Leader = Evil or Dictator

• Hitler• Lord• Narcissistic dictator• Two-faced actor• Evil• Demon

• Conniving• Possessed• Shape-shifters• Power hungry

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Themselves = Captive

• Trapped in abusive relationship

• Slaves• Owns me• Personal servant• Isolated

• Blackballed• Doing time• In prison• Suffocated• Small

Why Bullies Bully

Common Assumptions

Fully awareIntention is to cause harmCannot change

Reality

Fully UnawareIntention is to get the job doneCoachable

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Fully UnawareJoe: “I’ve been walking around like an a**hole for 3 years and nobody told me. I wish they’d told me sooner.”

Art: “I’m just managing the way that I’m managed. You should see what happens in the C-Suite meetings I attend.”

Intention Is To Get the Job DoneAbrasive leaders have a strong desire to be seen as uber-competent, and live in fear of being seen as incompetent.

Abrasive leaders have low social and emotional intelligence (EQ).

Anything that threatens their competence causes them to engage in bullying.

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Threat Anxiety Defense

Fight

Flight

Threat Anxiety Defense

Fight

FlightWorking Through

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Investigations

Gathering Information During An Investigation

Scenario 1

• The complainant, Collette, is a salesperson• The respondent, Rachel, is the sales manager• First interview: the complainant• Second interview: a witness

Scenario 2

• The complainant is a manager at a potato chip manufacturer• The respondent is the director of manufacturing• The respondent holds production meetings each morning at

6 am, before the morning shift begins• First interview: the complainant• Second interview: a witness

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Scenario 3• The complainant has alleged that the respondent, Rhonda, is very critical,

creates unreasonable deadlines for all of her direct reports, sometimes shortens deadlines without notice, and berates her assistant in front of others. The complainant also alleges that Rhonda makes fun of employees after she hangs up the phone with them.

• The other day, Rhonda allegedly hung up the phone after speaking with Irma, the Chief Operating Officer. Irma has a high-pitched voice, especially when nervous or excited.

• The investigator has already met with the complainant. She is now meeting with a witness.

Thank You!Catherine Mattice Zundel, SPHR, SHRM-SCPSan Diego, CAwww.civilitypartners.com

Ashley Lattal, Esq.Toronto, ONwww.lattallaw.com

Carole Ross, Esq., AWI-CHSan Diego, CAwww.rossemploymentlaw.com

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