STOP WORKPLACE BULLYING!

Existing Law and its Shortcomings

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Level Playing Field

At this point in US History, Status-Blind Bullying is Legal !

Targets of bullying are often horrified when they attempt to hire legal representation for their work abuse situations and learn that, at this time in our history, present law is grossly inadequate throughout the United States, including California. Unless a target can prove s/he was bullied for being a member of a protected class, s/he most likely does NOT have a cause to litigate (sue).  This is precisely why Healthy Workplace Advocates and the Workplace Bullying and Trauma Institute, among others, have been trying for several years to find sponsorship for Healthy Workplace legislation.

Targets are rightfully certain they have suffered from immoral treatment that is neither fair nor just. Their bullies have usually dished up mounds of conspicuoulsy bad and offensvie (egregious) work abuse. Targets are often assigned inhumane amounts of work (arduous workload) without the tools necessary to do the job properly. Most often targets are people who work very hard and care very much about their jobs. This is usually why they become targets: bullies feel threatened by them. Had the targets truly been bad workers, their employers would have taken proper steps (due process) to fire them instead of resorting to malicious bullying.  Often targets have inadvertently attracted bullying behaviors because they know too much and are in the position of whistleblowing, even when they are not so inclined to expose anything. Targets are usually held to different standards than are their co-workers (disparate treatment). All too often, targets leave their jobs, not because they are fired, but because they can no longer withstand the psychological violence of the abuse (constructive discharge).

Thinking, "Surely this inhumane treatment must be against the law," targets seek legal representation. Targets believe they have cause to sue their bullies and/or their employers in a civil lawsuit (tort action). They seek out employment lawyers only to find the few attorneys specializing in this law are working for the employers and are not for hire to individuals. Attorneys who do consult with work abuse targets usally look for some reason to justify filiing a lawsuit (actionable cause) under Title VII of the Civil Rights Amendment or the Americans with Disabilities Act or the False Claims Act. 

Title VII prohibits harassment/discrimination (disparate treatment or being treated differently from co-workers) due to a target's race, religious creed, color, national origin, ancestry, marital status, sex, age, or sexual orientation. Proving this means targets must prove they were targeted because of their membership in a group (protected class) which is different from their bully's or bullies' class. Seldom is this the case. Usually bullies bully for the sake of bullying, like a drug addict getting a fix or an alcoholic taking a drink. Most workplace bullying is status-blind and does not qualify as discrimination under Title VII. 

The Americans with Disabilities Act (ADA) protects workers from discrimination due to a target's physical or mental impairment or learning disability that substantially limits one or more of the major life activities. Physical impairments are those that affect one or more bodily systems, including neurologic, immunities, muscles and bones, the senses, breathing, speech, heart, digestion, reproduction, blood and lymph system, skin, urinary and endocrine systems Mental impairments include most any diagnosed mental disorder except compulsive gambling, kleptomania, and current illegal drug abuse. The ADA requires employers to make a reasonable accomodation for disabled employees that is not an undue hardship for the employer.

The False Claims Act is commonly called the Whistleblower act. It protects everyday heroes who dare tell the truth about companies and institutions who are making false monetary claims against the federal and state governments, charging them for goods or services not rightfully rendered.  Whistleblowers might also be exposing or in position to expose criminal activity such as money laundering, embezzelment, bribery, kickbacks, drug trafficing, and income tax evasion.

All three of the above - Title VII, ADA, & False Claims - are written into US and state laws. All three are very hard to find attorneys for representation. All three are extremely difficult to prove and require a minimum of three examples of concrete evidence and even more witnesses. Quite often, witnesses are reluctant to support targets for fear the perpetrators will turn on them. Amazingly, witnesses disappear into clouds of forgetfulness when called upon to do the right thing and tell the truth. Witnesses don't want the bullies to turn on them in retribution. Few witnesses or bullies are ever charged for lying in attorney meetings (deposition) or lying in a courtroom (perjury).  Employers usually threaten targets with legal costs should the targets lose their cause of action; few threats materialize, though a few do, depending on judges' decisions.  Many such cases are dismissed for lack of evidence.  Bullies are slick and know to cover their tracks.  It is a lifelong habit.

Unscrupulous lawyers will take injured targets' money (retainer of several thousands of dollars) but they will later tell targets that they are dropping the cases due to lack of evidence to support the actions. If targets do have strong cases, attorneys will accept the cases on contingency because they feel the targets have suffered discrimination under one of the above three mentioned laws AND they believe the targets have sustained significant pain, suffering, and financial losses.

Most employment attorneys will advise targets physically or mentally injured on the job to file for workers' compensation, if it can be proved that the injury happened on the job. If the injury is stress-related, employers' workers' comp insurance carriers will attempt to argue that the stress was caused by the worker's personal life and not by the job.  They will also argue in California that the stress resulted from the employer's good faith attempt to manage properly.  Targets need be prepared to be denied workers' compensation and to find attorneys who specialize in fighting for the target's rightful benefits.

Attorneys also should, but not always do, inform targets of possible unemployment benefits and disability benefits available to them.  To be eligible for unemployment, a target must prove s/he is out of work though no fault of his/her own. Targets who do qualify for unemployment benefits are also availed of rehabilitation benefits, if s/he is deemed able to be rehabilitated. Disability benefits are available to medically diagnosed targets through their pension systems or through the the Federal Social Security System, if the worker qualifies due to length of time working for one of these systems.

As for the average bully who simply targets individuals for the common sport of picking on somebody all of the time: WE HAVE NO LAW AGAINST PSYCHOLOGICAL VIOLENCE IN THE WORKPLACE! As long as the target is not of another class, is not physically or mentally disabled, and is not whistleblowing....WE HAVE NO LAW AGAINST STATUS-BLIND BULLYING to protect us!

That's why Healthy Workplace Advocates are here!  

     Because existing law is inadequate...

           because it's the right thing to do...

                 and because bullying breaks hearts!

We ought to have a law against Workplace Bullying-

Support Healthy Workplace Legislation!

For more detail information about workplace litigation and your particular case, Healthy Workplace Advocates suggest: 

See a lawyer!  If a target cannot hire an attorney for representation, join us in an attempt to try to 'let it go' by helping to pass Healthy Workplace Legislation and giving our State a better, more humane workplace for all.

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David Hurd, Attorney at Law, 1995; The California Employee Survival Handbook
 
Gary Namie, PhD and Ruth Namie, PhD, 2009, The Bully at Work, What You Can Do to Stop the Hurt and Reclaim Your Dignity on the Job.