Bullied by the Law

In the past few months, newspapers, blogs, and industry journals have been filled with stories of executives whose self-negotiated compensation packages smack of thievery; of leaders who’ve favored and feathered the nests of their willing paramours; and of tyrants in every level of business and government whose bluster, intimidation, and loutishness have been tolerated for fear they would take their skills, business, or technical expertise elsewhere or ruin the careers of those who tried to bring their misdeeds to light.

While the cases I am referencing have involved visible, well-known individuals and firms, smaller, less-publicized instances of similar forms of misconduct are occurring across industries. The examples are everywhere: executives and supervisors who scream, sarcastically demean, or pointedly ignore their employees in public; managers who take credit for others’ work and create their band of favored “untouchables;” and high-producing “big shots” who work at the edges of workplace rules and stifle dissent or questions about their behavior. Fittingly, we classify this conduct for what it is: workplace “bullying” – the same kind of behavior many can remember from the angst of the schoolyard.

As you would expect, a cottage self-help industry has arisen advising individuals on how to deal with, defeat, or somehow survive such toxic conduct. Likewise, numerous organizations have sprouted across the country committed to ending workplace bullying in all quarters. All of these measures are intended to help people deal with behavior that should never be allowed to occur or continue unabated in the first place, if for no other reason than it can have devastating consequences on real business factors, such as profitability, reputation, safety, teamwork, retention, and productivity.

It’s interesting to note that whenever these kinds of stories surface, particularly when they involve the prominent and the powerful, it’s often to announce an individual’s termination, resignation, or mid-career decision to leave unexpectedly to pursue other interests. If instead the story is addressing rumors of impermissible conduct, the end result is usually the same, as organizations sever their relationships with these leaders because the public – aware of the harm and risk these leaders’ behavior presents – tells them it can no longer be tolerated. Sadly, these organizations get the point too late.

In much of Europe, bullying laws prevent such conduct, and significant claims have been filed and publicly won. While our European colleagues have legal protections in place that we in the United States have yet to enact, they generally lack the American relish for the courtroom joust and the cultural sense that legal battles are the way to resolve disputes. Compared to the way we do business in the United States, workplace legal claims are relatively rare there. However, if today’s industry leaders don’t take the initiative to reign in bullying behavior in our workplaces, ultimately, there will be a cure in the U.S. in the form of restrictive anti-bullying laws mirroring, if not exceeding, the scope of those already passed in Europe and elsewhere. This would be a serious problem for American businesses as they could face additional costs and risks arising out of new and vague employment claims in a nation where litigation is often the first rather than the last form of conflict resolution. In fact, as of May 2007, anti-bullying legislation has been introduced in 13 states, the first of which was California, the bellwether home of employment law trends.

If such laws are passed, litigation over the intent and terms of these statutes will create a bonanza for lawyers for the next two decades, at least as courts and legislatures come to terms with a raft of new statutes and interpretations regarding exactly what conduct – under which circumstances and what standards of proof – is or is not actionable. By analogy, we’ve spent the past forty years litigating and revising our own employment statues dealing with race, sex, and other characteristics, which, by comparison, are more clearly definable than the kinds of complex behaviors and nuanced fact patterns that could fall under the broad banner of workplace bullying. Adapting to such legislation would prove an extreme burden at a time when industry in the United States is faced with staunch and increasing global competition. We’re at a critical point when less, not more, litigation is desperately needed.

All of this can be avoided if organizational leaders start to recognize the problem, take it seriously, and take the steps to deal with it. The prevalence of bullying, boorish, and abusive behavior has arisen out of two major and common circumstances, both of which organizations would be well advised to address now before legislatures, then the courts and talented plaintiffs’ lawyers take control.

Blinded by the Law
First, we’ve let the rule of law blind us to basic principles of equity, fairness, and civility. We’re relying on strict legal boundaries rather than common sense. The law can address some but not all forms of misconduct; just because some kinds of conduct are not illegal does not mean they should be tolerated. Some examples include executives who use company resources to carry on clandestine affairs or, by their demeanor, threaten the careers of their colleagues if they dare to report problems in their work unit. The individuals may commit “bad” workplace acts, but the behavior isn’t expressly a violation of the law. So while risk and harm surround every aspect of their behavior, since these people maneuver around a few obvious legal roadblocks, their actions aren’t seen as high-risk concerns, no matter the ultimate damage caused.

Quite often such “legal” conduct goes chronically unaddressed and can cause individual and organizational devastation. The irony is that some clearly illegal behaviors may not be as harmful, but they’ll receive greater and prompter attention and more effective correction. Consider an executive who yells and berates everyone in her path, repeatedly and publicly. People are distracted and afraid to speak up about mistakes, and those who can take their skills elsewhere generally do so. However, her behavior doesn’t constitute racial, sexual, religious, ethnic, or other forms of discrimination unless it uses terms recognized as derogatory in the context of applicable prohibitions. Lawyers can scour federal and state statues and find nothing that directly addresses such boorish behavior.

By contrast, an offhand, borderline remark that has an obliquely offensive but potentially innocent sexual or religious innuendo can be considered possible harassment, leading to investigations, discipline, or worse. I’m not suggesting that such conduct be condoned or ignored, but the point is that organizations often tend to dismiss other behaviors that are at least as harmful, if not more so, simply because they don’t appear to create a legal problem for the company.

In other words, our penchant for operating legally and in compliance has blinded us to the harms that seemingly legal conduct can exact. We’ve become so focused on the letter of the law, the risk of jury trials, and the potential for high-damage awards, that our first and often only question is, “Is the behavior illegal?” What we don’t consider is, “Does this conduct represent what our organization is supposed to be about and how we say it should be run?” Thus, in a country where litigation is a recognized cost of doing business, legal risk, which if not managed can bring a firm to its knees, becomes the key and sometimes exclusive parameter of decision-making. Instead of weighing the conduct‘s business consequences, organizations seek legal advice as a first resort and then lose sight of overall business objectives. So when lawyers review the facts and declare that, yes, the behavior may be bad, but as far as the law is concerned, it’s not a problem, it’s allowed to continue unaddressed.

Once the skilled and trusted counsel provides assurances that certain behaviors are not illegal, too many leaders declare the case closed, as it were. They conclude that the matter does not need to be addressed with the same rigor as an off-color joke or sexually demeaning comment. What they’re doing is defining their responsibilities too narrowly as guardians of legality, when they should be stewards of the organization’s values and culture. Organizational values generally include such concepts as civility, respect, integrity, inclusiveness, and teamwork, or some other similar combination of words. And one can assume that the values have been developed because they serve a business purpose. That being the case, leaders need to pay more attention to what it is they’re truly evaluating when considering workplace behavior. And if they don’t – if organizations continue to ignore the prevalence of bullying and other disruptive behavior – one way the conduct could be addressed, as we’re beginning to see with the state legislature activity, is through the passage of laws that make it legally actionable.

A Narrow View of Competence
Here’s a question I get repeatedly: How do I deal with this physician/executive/other leader who gets great results, is a top performer, and is extremely competent but causes people around him to quake with terror, leave jobs when we’ve spent years training them, or keep quiet in the face of problems and even life-threatening errors? Actually, the question illustrates the problem: how can individuals who engage in conduct that produces these results be considered competent? I suppose they are, if interacting professionally and civilly isn’t part of the definition of excellence or qualified. The fact is, we’re defining competence too narrowly. People who behave that way can only be recognized as competent or outstanding if “intangibles” like trust, teamwork, morale, and productivity are discounted and all that matters are revenue, numbers, patient load, and related metrics. Once again, though, when (and often only when) the public refuses to put up with it, organizations are forced to look at their practices, and these individuals are finally dismissed, forced to retire, or otherwise marginalized. But once again, the action arises after unnecessary damage as has already been inflicted.

Just as we must look beyond the letter of the law to determine what constitutes acceptable workplace behavior, we must redefine competence so that it includes professional conduct. In medicine the U.S. Accreditation Council for Graduate Medical Education (ACGME) now requires, as a component of maintaining accreditation, that hospitals teach residents professionalism and effective interpersonal communication skills as elements of professional competence. The ACGME is in effect saying that physicians need more than clinical or surgical skills in order to be properly recognized as professionals practicing medicine.

Both of the problems discussed above can be addressed by viewing them through a business lens. If the behaviors hinder excellence and quality, then organizations ought to remedy them as a matter of sound practice and to prevent the squandering of business assets. When faced with competitive threats, industrial sea changes, rising costs, or similar issues, companies spend millions of dollars and thousands of hours preparing to adapt and protect their businesses. For far less than they spend on those kinds of actions, today’s leaders can minimize behavior problems and all their associated harm by relying on values that are already stated as core business principles. Starting with the top, leaders must make it clear that excellence, advancement, and tenure depend on professional behavior and that there is a clear rather than a subjective model of what such conduct looks like. As examples, people need to understand that integrity means telling the truth in all business interactions, regardless of the circumstances. Respect is demonstrated in actions, content, and tone, and it should be afforded to everyone. Inclusiveness is reflected in the interactions that take place on a daily basis and from person to person, not in a vague statement written buy outside consultants and paraded to journalists who cover stories for the trade. Transparency means that organizations talk about their issues and welcome discussion from staff as problems arise. Citizenship carries with it specific responsibilities as to how organizational resources are used, individuals are treated, and decisions are made.

In every instance when new laws are passed it’s because issues arose that prompted the need for legislation. We have civil rights laws because of historic inequities that had to be addressed by the courts rather than voluntarily by employers. Sarbanes-Oxley arose after public scandals caused congressional leaders to conclude that legislation had to be enacted to ensure companies changed their practices. Currently, provisions are circulating through the U.S. Congress to curb excessive executive pay, the result of some very public embarrassments.

But in truth, proper governance, not external legislation, should prevent these kinds of misdeeds. If organizations take action now to curb the technically legal but disruptive bullying behaviors, they just might prevent the wellspring of support that could lead to intrusive new laws. In doing so, they’ll also help foster inclusive, ethical, and civil workplaces, the kinds of positive environments in which to compete and thrive.