Posts Tagged ‘justice’
Saturday, September 26th, 2015
Consistency is First Step Toward Accountability: The Problem with Case-by-Case Approaches
By Gary Namie, PhD
One of the major complaints from bullied workers is the unfairness and inequity inherent in their employer’s approach to bullying complaints. As a group, bullied individuals are very sensitive to perceived injustices.
It is key to remember that if it is an American employer, there is no legal risk-avoidance reason to compel them to take complaints about bullying and abusive conduct seriously. If they treat complaints as legitimate and serious at all, it is because they choose to do so voluntarily.
When a sympathetic, well-intentioned employer does allow bullying complaints to be lodged, that openness is often followed by resolution attempts on a case-by-case basis (CBCB). Adopting CBCB sounds good but is plagued by unintentional consequences.
To employers, CBCB affords flexibility. It allows the investigator and decision maker to take into account mitigating circumstances. For instance, offenders can be forgiven if their misconduct is found to be based on following orders from a higher ranking manager. It also makes sense to be lenient in delivering negative consequences for first-time offenders. How could this be unfair?
From the perspective of rank-in-file employees the CBCB method is perceived much differently. From that view, in the first instance the given orders were unseen. Only the absence of punishment or changes was noticed. Therefore, the decision smacks of favoritism. And if the offender was a department head or director, then it appears the employer is protecting managers. Bullying is met with impunity.Leniency, too, looks like the employer decided to grant the bully wide latitude.
In both cases, employer flexibility feels like employer betrayal to workers.
This is a preventable error.
At WBI, we suggest dropping the CBCB approach. CBCB is the only alternative when no systematic policy-driven solution exists. Create the alternative. If employers truly want to hold accountable destructive workers, then create a policy or code of conduct in which you state unequivocally that abusive conduct is unacceptable.
More important, you must design enforcement procedures to make the policy a living document.
The procedures you create spell out exactly how complaints alleging violations of the policy or code will be handled. Employer responsiveness is key. Regarding the topic of this column — accountability for violations — your enforcement procedures must clearly dictate consistency. This is done by explicitly stating that all procedural steps — investigations, interviews, timelines, notifications of outcomes, and remedies — apply to ALL employees at ALL levels. The antithesis of CBCB is a consistent application of the rules.
If you, the employer, want engaged loyal employees, then substitute a policy and faithful enforcement procedures (governing rules) for old CBCB, make-it-up-on-the-fly, methods of dealing with bullying. Your reputation with your employees depends on it.
Monday, August 3rd, 2015
Workplace bullying is endemic in healthcare and education, including higher education, for reasons discussed elsewhere at the WBI website.
Now comes a story of an inept community college administration, at Weatherford College, unwilling to even consider complaints from a long-time faculty member. Professor Karen Lopez Austen about the abusive conduct she faced in the Athletics Department.
The WBI 2014 U.S. Workplace Bullying Survey revealed that most employers deny complaints or justify them. In Austen’s case, they never considered the evidence she had assembled for the Board. An outsider can easily infer that the Administration, led by Kevin Eaton, had decided to not renew Dr. Austen’s contract, despite the legitimacy of her complaint.
So, as was her right, Dr. Austen filed a civil suit claiming sex and ethnicity discrimination along with retaliation for daring to hold the college accountable to operate lawfully and according to internal policies. She probably, like most bullied targets, especially highly educated individuals, expected to find justice in court. We constantly warn targets that justice is rarely found and almost never in court.
Remember, the college administrators refused to hear her complaint. The trial court judge did not allow Dr. Austen her day in court. Judges possess ultimate authority to grant access to their courts.
Judges have two avenues to end cases before they start — dismissal or summary judgement. Targets are typically plaintiffs who sue their employers, the defense. The defense files the motion to dismiss. Dismissal is based on technical details of the case that have not been addressed ensuring that the law cannot relieve the problem — e.g., “including lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or failure to join a necessary party.”
When the defense files a motion for summary judgement, it is saying that if the parties don’t dispute the material facts of the case, then the judge can determine whether the defendant is liable based simply on the pre-trial evidence assembled, if any exists. In the case Austen v. Weatherford College, there was no such agreement. The civil case was all about the disputed facts. The college said nothing happened. Dr. Austen said otherwise. Guess what. The judge in Federal District Court agreed with the college and threw out the case based on summary judgement.
In most cases, financially strapped terminated and unemployed targets go no further. But Dr. Austen filed an appeal with the federal Fifth Circuit. It was no surprise that the Appellate Court upheld (agreed with) the pro-administration ruling of summary judgement. Remember, no entity had yet considered the evidence that plaintiff Austen had put together to prove her complaint of discrimination.
Austen’s attorney, Mark Robinett, at the Austin Texas firm of Brim, Arnett & Robinett. P.C., was shocked by the 5th Circuit Court’s ruling of a 3-judge panel (Judges Smith, DeMoss and Higginson). What he found appalling was that his client’s evidence did not matter. In a general letter to the public, attorney Robinett wrote:
… the Court of Appeals held that her evidence did not matter, that she had failed to present a “prima facie” case or “rebut the legitimate reasons for termination (sic nonrenewal) offered by the college. The court also holds, as if it has some basis for making a fact finding (which is a “no-no” for an appellate court) that “(t)he six serious, documented instances of misconduct from the semester after the settlement agreement were the primary reasons for termination (sic nonrenewal).
Robinett, quoting the appellate court’s ruling stated
What matters is not the truth of the underlying complaints and reports, however, but rather whether the college could legitimately have relied on them in deciding to terminate Austen. The college could do so.
In fact, the college president, Eaton, mis-characterized Dr. Austen’s complaint to the Board. The Board never heard Austen’s perspective.
The injustices Austen faced was compounded by the 5th Circuit with its pro-institutional bias that claimed evidence did not matter. Robinett concluded that the court was doing a trial jury’s job without the benefit of live testimony or assessing the credibility of the Weatherford College administrators.
Read Attorney Robinett’s letter countering the assertion that Dr. Austen was not renewed for just reasons. She never got to tell her side of the story to an impartial court.
Read the ruling by the three judges that back legal scholarship and justice by decades.
Justice in America?
Tags: 5th Circuit Court of Appeals, abusive conduct, dismissal, justice, Karen Lopez Austen, summary judgement, Weatherford College, workplace bullying
Posted in Fairness & Social Justice Denied, Related Phenomena, Rulings by Courts, WBI Education, Workplace Bullying Laws | 1 Archived Comment | Post A Comment (
Wednesday, July 31st, 2013
In 1914, Henry Ford doubled wages for his Detroit workers. Gus Lubin writing for Business Insider on the 150th anniversary of Ford’s birthday discovered Ford’s rationale for paying a living wage.
It’s morally right
What good is industry if it be so unskillfully managed as not to return a living to everyone concerned? No question is more important than that of wages — most of the people of the country live on wages. The scale of their living — the rate of their wages — determines the prosperity of the country.
Friday, August 17th, 2012
Workplace bullying jeopardizes targeted workers’ careers, compromises their health and strains familial relations. Perhaps the most persistent damage from targets’ perspective is the injustice of it all. Bullying was inflicted involuntarily on them. The assaults were not grounded in facts, not even a “kernel of truth.” The most competent workers, the ones who pose threats to the deeply insecure aggressors, are targeted. The disconnect between deserving punishment and the deep misery experienced is at the heart of the injustice. Years after targets are out of harm’s way, they still feel lingering pangs of unfairness, inequity, injustice.
In the sixth Workplace Bullying Institute poll of 2012, we explored potential sources of justice. 331 site visitors responded.