Tuesday, November 8, 2011

On Bullying & Harassment

StoneKerri Stone (FIU) posts over at Prawfs on bullying and harassment.  Here's an excerpt:

This week, the American Association of University Women released information from a study that said that almost half of students in grades 7-12 have experienced sexual harassment in the last school year. Although more girls than boys reported being the target of sexual harassment at school, defined by the nonprofit research organization as “unwelcome sexual behavior that takes place in person or electronically,” boys and girls alike were identified across the board as harassers and victims. Rumors and jabs about students’ promiscuity and sexual orientation looked to be a significant part of the reported behavior, and victimized students reported deleterious tangible effects of the harassment that resulted in physical ailments and missed school days.

It is very interesting that most of the concentration of awareness, prevention efforts, and campaigns around schools has dealt primarily with the problem of bullying, when, in fact, the nature of the bullying has apparently been so overwhelmingly sexualized and gendered. This is especially ironic when one notes the fact that in the workplace, bullying is wholly lawful, while sexual harassment may result in corporate liability. Even more ironic and unfortunate, because sexual orientation is not a protected class status under federal law, many courts have rejected harassment claims made by homosexuals because although in many cases, they are being abused because of their failure to conform to gender norms, the courts see them as trying to advance claims that are ultimately not cognizable. Referring to someone’s sexual orientation (actual or perceived) as the reason for an adverse employment action is similarly seen as lawful under federal law. Moreover, in all but a few courts, “generalized vulgarity,” even that of a somewhat sexual nature, so long as it is not directly targeted at one sex, is seen as lawful as well.

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Targets, victims and witnesses of bullying have a few avenues to pursue when subject to obvious acts of aggression and subtler actions such as spreading malicious rumors or gossip, excluding or isolating someone socially, undermining or impeding a person’s work or opinions, unjustified exclusion from certain projects, removing areas of responsibility without cause, and intruding upon a person’s privacy by pestering, stalking, or spying. Others include being rude or belligerent, destroying property, assaulting an individual, or setting impossible deadlines, workplace aggression—incivility, including rudeness and discourteous verbal and nonverbal behavior, repeatedly reminding employees of mistakes, spreading gossip and lies, ignoring or excluding workers from certain projects, without due cause, and insulting a person’s habits, attitudes, or private life—had worse effects on performance than sexual harassment.

In the United States, although bullying is recognized as detrimental to occupational health, there is little political or corporate interest in stopping it. Workplace bullying has more severe consequences, including higher employee turnover, than sexual harassment, although sexual harassment itself can be interpreted as a form of bullying (i.e., a combination of disrespect and an abuse of power). Targets, victims and witnesses can identify and stand up to the bully, report the abuse to their HR department or their union or take legal action. A small proportion of bullied individuals actually admitted that they had been bullied. Training sessions can help when combined with a confidential reporting structure, although it is difficult to alter the basic nature of some individuals.
An employee who suffers any physical or psychiatric injury as a result of workplace bullying could bring a claim of negligence and/or a personal injury claim against both the employer and the abusive employee as joint respondents in the claim. If the law does not persuade employers to deal with workplace bullying, the economic reality will persuade them over the next few years.

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Maxwell Pinto, Business Author
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Posted by: Maxwell Pinto | Nov 8, 2011 12:06:48 PM

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