Category Archives: harassment

A Setback for Anti-Bullying Efforts?

bullyEarlier this month, HRE Editor David Shadovitz reported on Tennessee Gov. Bill Haslam’s signing of the Healthy Workplace Act, which made the Volunteer State the first in the Union to pass legislation aimed at putting an end to on-the-job bullying.

In that piece, Shadovitz pointed out that 28 states have introduced anti-bullying legislation this year. Experts, he said, predict other states will soon take similar measures, adding that New York and Massachusetts appear the most likely to pass anti-bullying laws applying to private-sector employers. (The Tennessee law only affects the practices of state and local government agencies.)

While some states may soon follow in Tennessee’s footsteps, it seems that New Hampshire took a step in the opposite direction this week.

On Monday, Gov. Maggie Hassan vetoed a bill geared toward protecting New Hampshire state employees from abusive work environments, saying the bill was “well-intentioned but unworkable,” according to the Concord Monitor.

The measure—which state lawmakers passed after current and former state workers said they had experienced bullying behavior at work—would have required state departments and agencies to develop policies to address harassment, the Monitor reports.

Hassan, however, found the legislation’s definition of abusive conduct to be overly broad, which she says could make even routine employee interactions potential causes of action. The bill “also attempts to legislate politeness, manners and the interpersonal relationships of co-workers,” she said, contending the law would lead to a significant spike in lawsuits and subsequently hamper productivity.

Conversely, bill sponsor Rep. Diane Schuett feels a failure to put anti-bullying laws in place yields roughly the same end result, with respect to employee output.

“[Bullying] undermines the efficiency within state government if you end up with one or two employees being harassed on the job, either by another employee or a supervisor, and you end up with the entire agency being aware of it and feeling like they have to pick sides.”

There might well be some truth in both of those statements. Maybe the silver lining in the New Hampshire scenario is that the bill—which state lawmakers could revive by overriding the Governor’s veto—is at least on the table, with each side acknowledging that workplace bullying is a real and pervasive problem that must be addressed in some way, even if the legislation’s workability may be at issue.

Crossing Over to the Daaahhhrk Side … Mwahahaha …

Thought this might make for a good Halloween post — a piece written by Merrily Archer, founder, president and CEO of Denver-based EEO Solutions and a former trial attorney for the U.S. Equal dv1137057-- dark sideEmployment Opportunity Commission. It’s all about … (steady your hobgoblin nerves) … the pro-employer daaahhrk side (insert eery music and a witch’s cackling howl).

Actually, the only scary part of Archer’s post is her first subhead — you guessed it: “The Dark Side.” Alarming, though, is the deep divide she describes between those going after the “evil” employers — those “villains” accused of discrimination, harassment, etc. — and the employers (and HR departments) themselves, simply trying to survive and comply in a “victim”-sided system.

Whatever faction you favor, you have to admit Archer knows each one well — each side of the ever-widening “good-guy/bad-guy” chasm, as she describes it. She’s walked and lived them both. Here’s a small reflection on her stint as an “employer-hater”:

I’d grown accustomed to the rhetoric: The EEOC and [Plaintiff Employment Lawyer Association] people did ‘God’s work’ and helped ‘victims’ of discrimination. By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.”

And a sampling of her growing disenchantment and concern that all was not necessarily right with the ship she happened to be on:

After doing ‘God’s work’ at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about ‘God’s work’ and ‘changing hearts and minds through litigation’ often just masks ego and greed; (3) the identity of the righteous ‘good guys’ is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things. Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the ‘Dark Side,’ even the ‘Forces of Evil.’

And here’s what she witnessed and went through as HR practitioners fell prey to governmental aggression:

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast — and treat — HR managers as incompetent boobs or raging racists. After hours of intense deposition questioning, this treatment could make most HR practitioners cry … . As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights. But to the EEOC and employee-side counsel that perpetuate [that] victim/villain paradigm, the inherent ‘evil’ of discrimination justifies their abuse of other humans accused of it. When you’re doing God’s work, after all, all is allowed.”

Lastly, as an attorney criticizing attorneys, she argues in favor of both sides uniting to rid workplaces of working conditions that, in many cases, definitely do need to change:

In theory, the EEOC, employers, civil-rights groups, and the HR community share much common ground in advancing equal-employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys. Employment discrimination, workplace inclusiveness and the costs to employers of EEO disputes are complex, multifaceted social problems that deserve more analysis than victim/villain caricatures. Our progress toward full inclusiveness, after all, depends on our ability to find common ground, not deepen divides.”

Granted, other voices deserve to be heard on this apparent and troubling divisiveness between the EEOC and the employers it was created to keep an eye on. But Archer’s alone sure sheds some illuminating light on a problem I, for one, didn’t know much about: the other “victims” on the “dahhrrk side” of business.

Largest Verdict in EEOC History Just Awarded

149796345--juryA Davenport, Iowa, jury awarded the U.S. Equal Employment Opportunity just yesterday the largest-ever verdict in the agency’s history — more than $240 million — in a case involving the long-term abuse of workers with intellectual disabilities.

The class-action case against Hill Country Farms Inc., doing business as Henry’s Turkey Services, was actually covered by me back in April 2011 in this news analysis. Here, too, is the ruling by the U.S. District Court for the Southern District of Iowa, Davenport Division, in September 2012, granting the EEOC partial summary judgment to move forward and also ordering the Goldthwaite, Texas, company to pay the workers $1.3 million for unlawful disability-based wage discrimination.

Coupled with yesterday’s awards of $2 million and $5.5 million for each of the 32 mentally disabled turkey processing-plant workers, for punitive and compensatory damages, respectively, the total judgment — to be exact — comes to $241.3.

The links above, along with this release by the EEOC, spell out all the sad, sordid details of this now-historic case. But just to recap here, the EEOC lawsuit says that, for many years, the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment, such as requiring them to live in deplorable and substandard living conditions, and failing to provide adequate medical care when needed.

The EEOC also claims verbal abuses, including frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Members of the class reported acts of physical abuse as well, including hitting, kicking, at least one case of handcuffing, forcing the men to carry heavy weights as punishment and being dismissive of complaints of injuries or pain.

“The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of workers who were mistreated for so many years,” says EEOC Chair Jacqueline A. Berrien.

According to this Fox News account, an attorney for Henry’s didn’t respond to a message seeking comment. But the company’s president, Kenneth Henry, told the Quad-City Times after the trial  that he planned to appeal, calling some of the evidence “terribly exaggerated.”

The news account also says it’s highly unlikely the now-defunct Henry’s Turkey Service has anywhere near enough remaining assets to cover the $7.5 million in damages each man was just awarded.

“Do you think I can write a check for that?” Kenneth Henry, 72, the company’s president, told the newspaper.

But federal officials are vowing to recover every last cent they can for the men, who had been “virtually enslaved” for many years, according to developmental psychologist Sue Gant, who  interviewed them at length for the EEOC, the account states.