EU-wide crackdown on workplace bullying

The European commission has signed a key pact with its ‘social partners’ aimed at tackling unacceptable" harassment and violence at work.

According to the Dublin-based EU agency Eurofound, one in 20 workers, or five per cent of the workforce, say they have been exposed to bullying or harassment in the previous 12 month period. The most affected sectors are health and social work, education, public administration and transport.

A news conference on was told that workplace harassment in the British health service is estimated to cost over €100m a year in terms of absenteeism and lost productivity.

An agreement signed on Thursday by employment commissioner Vladimír Špidla and the heads of the main European trade union and employers’ federations is designed to tackle the issue.

The agreement, which follows ten months of negotiations, aims to prevent and manage problems of workplace bullying. It obliges participating businesses to make it clear that harassment and violence will not be tolerated and specifying the procedure to be followed in the event of complaints. The pact leaves the necessary flexibility to decide on the details of the procedure at company level.

Members of the signatory parties have until April 2010 to implement it. John Monks, secretary general of the European Trade Union Confederation (ETUC), described it as a “major agreement”.

“The agreement has strong added value,” he said. “It is a practical tool for companies and workers to come to grips with situations of harassment and violence between colleagues at the workplace. Harassment and violence is not only unacceptable but also disruptive and can be very costly to both employer and employee.”

Philippe de Buck, secretary general of Businesseurope, said the agreement, which his organisation has also signed, aims to raise awareness of the problem among both employers and employees.

From: http://www.eupolitix.com - 26 Apr 2007
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Agreement on harassment and violence at work

The European social partners (ETUC, BUSINESSEUROPE, CEEP and UEAPME) signed a framework agreement on harassment and violence at work. The agreement aims to prevent and, where necessary, manage problems of bullying, sexual harassment and physical violence at the workplace. Companies in Europe will have to adopt a policy of zero-tolerance towards such behaviour and draw up procedures to deal with cases of harassment and violence where they occur. Data suggests that one in 20 workers (5%) reports being exposed to bullying and/or harassment each year.

The European agreement condemns all forms of harassment and violence and refers to the employer's duty to protect workers against these situations. Companies will need to set out procedures to follow when cases of harassment or violence arise. These can include an informal stage involving a person trusted by management and the workforce.

Complaints should be investigated and dealt with quickly. The principles of dignity, confidentiality, impartiality and fair treatment need to be respected. The agreement underlines that appropriate measures will be taken against the perpetrator, including disciplinary action up to dismissal, while the victim will receive support with reintegration, if needed.

From: http://www.businessupdated.com - 27 Apr 2007
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Extracts from the 'Text of framework agreement on harassment and violence at work':

Pre-existing procedures may be suitable for dealing with harassment and violence. A suitable procedure will be underpinned by but not confined to the following:

• It is in the interest of all parties to proceed with the necessary discretion to protect the dignity and privacy of all.
• No information should be disclosed to parties not involved in the case.
• Complaints should be investigated and dealt with without undue delay.
• All parties involved should get an impartial hearing and fair treatment.
• Complaints should be backed up by detailed information.
• False accusations should not be tolerated and may result in disciplinary action.
• External assistance may help.
  

...Employers, in consultation with workers and/or their representatives, will establish, review and monitor these procedures to ensure that they are effective both in preventing problems and dealing with issues as they arise... The victim(s) will receive support and, if necessary, help with reintegration.

UCU publishes motions for Congress - Bullying on the agenda

By Debbie Andalo, Tuesday April 24, 2007. EducationGuardian.co.uk

The privatisation of university services and the problem of bullying in higher education will come under the spotlight at the inaugural congress of the University and College Union (UCU) next month.

Issues around academic freedom and cuts in adult education have also been included in motions to be discussed by the 400 delegates expected to attend the three-day event in Bournemouth which starts on May 30.

...The union's joint general secretary, Sally Hunt, said: "The first congress will set the tone for the largest post-16 education union in the world, and really allow us to start working to represent our vast membership."

The UCU was formed in June last year following the merger of the Association of University Teachers (AUT) and the National Association of Teachers in Further and Higher Education (Natfhe).
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From: Univesity and College Union (UCU)

Topic: Inaugural UCU Congress, 30 May - 1 June 2007: First report of the Provisional Congress Business Committee including motions submitted

Summary: Motions submitted for debate at the inaugural meeting of UCU Congress and Sector Conferences to be held 30 May – 1 June 2007 in Bournemouth

Contact: Catherine Wilkinson, senior administrative officer cwilkinson@ucu.org.uk;

Paul Bennett, national official pbennett@ucu.org.uk; (Note: Paul Bennett will be out of the office until 18 April)

'...Congress recognises that bullying and harassment are particularly likely to affect women, LGBT, BME and disabled members, hourly paid members and other members who are perceived as vulnerable. While it is recognised that UCU may have to advise, support and represent both sides in this type of case, it is particularly important that the person alleging bullying and harassment, particularly when a woman, LGBT, BME or disabled person is given the best possible advice, support and representation and feels that they are taken seriously.

Congress instructs the NEC to issue advice on handling of bullying, harassment and violence against women and minority group members and recommendations for policy measures to prevent it...'

OK, so the 'Congress' asks the 'NEC' (National Executive Committee) to 'issue advice'... Further down we read:

'Bullying in post 16 education (Bradford College). Congress notes:

1. surveys indicating growing management bullying in education, often related to workloads, restructuring, marketisation, and management aims to boost productivity;
2. huge costs in terms of staff turnover, sickness and burn-out where managers ignore the work/life balance and fail in their duty of care to staff;
3. bullying is not an individual’s problem but the responsibility of the institution to stop and the union to resist.

Congress resolves:

1. to launch a major training campaign for UCU members and reps to fight bullying and harassment;

2. to organise a national conference on bullying and harassment;

3. to encourage UCU branches to collectivise anti-bullying action in post-16 institutions by:

a. organising bullying and harassment surveys;
b. negotiating anti-bullying policies and making them work through regular monitoring and training;
c. where this fails, organising collective responses including the declaration of collective disputes and ballots for strike action.'

Further down we also read:

'Equality in universities (Northumbria University)

Congress notes with concern the lack of priority given by UK universities to equality issues. and how the impact of the neo-liberal agenda, globalisation and increased managerialism has led to increases in bullying, harassment and stress in academic staff.

We are particularly concerned that
- many universities have not fully implemented the legal requirement for a Race Equality scheme, i.e. have not carried out Race Equality impact assessments
- the Stonewall Diversity champions table suggests a lack of attention to LGBT issues in many Universities.

Congress is asked to support:
- the election of an Equality Officer in every UCU Branch
- a national network of UCU Equality Officers with an annual conference and regular training sessions
- an audit of bullying and harassment in Universities
- equality being raised with the national employers with the demand for an urgent review of the issue in universities.'

And we continue reading - further down:

'Bullying (Nottingham Trent University, Clifton)

Sector Conference notes that Bullying is a seriously damaging problem within HEI’s. It can occur in a wide variety of different ways between managers, employees and/or students. When bullying occurs it often results in poor performance, stress, sickness absence and leaves very unpleasant feelings for the people directly involved. Bullying is certainly not needed in any educational institution and should not be tolerated in any form whatsoever.

Therefore Conference resolves that awareness training should be provided by both the institutions themselves and within UCU. Also,that harassment procedures exist within all HEI’s to deal effectively with this serious issue. Furthermore UCU should ensure that policies and procedures on this topic are disseminated widely and effectively across the sector within a high profile campaign to increase awareness of the damaging effects caused.'

With some disbelief, we continue reading...

' Workplace bullying (University of Birmingham)

Conference notes the growing incidence of alleged workplace bullying in HE institutions, often associated with RAE outputs, unreasonable research, teaching and administration targets, erosion of accountability and transparency in university governance, and unaccountable and reprehensible practices in management, recruitment and promotions.

Conference welcomes the 2006 House of Lords ruling on the case of Majrowski v Guy's and St Thomas' NHS Trust, which will make it easier for an employee to bring a bullying-related claim against his/her employer under the Protection from Harassment Act 1997 and obtain damages for anxiety caused by the harassment, and any financial loss resulting from it.

Conference instructs Executive to issue guidance on the implications of this important case to all regional officials, LA/branch committees and personal casework officers.

Conference further instructs Executive to work with UCU's Legal Office to bring cases before the courts for work-related bullying in HE institutions.'

We are speechless... but we keep reading:

'Stop Bullying in Higher Education (Kingston University) - HE Sector Conference.

Kingston University calls upon the UCU to organise a national campaign against Bullying in Higher Education.

This should include:

1. code of conduct to be sent to all UCU members which should inform our conduct towards fellow members;
2. agreement of a new national UCU Anti-Bullying Policy which branches can use in negotiations with local employers;
3. management should ensure that staff are provided with a clear alternative channel of complaint if they prefer not to raise the matter with their Head of Department;
4. a demand that employers record, monitor and review bullying complaints and the outcome of bullying cases on an annul basis. That this information should be shared with the local UCU branch;
5. that employers review their anti-bullying training for senior staff and require all senior staff to regularly attend such courses.
   

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Some brief comments on the above:

Lots of encouraging rhetoric - 'Why did it take so long?' one can ask. But then again, we are up and running now... One small step towards the right direction, perhaps the start of many more significant steps...We support what is proposed. It is in many ways a vindication that bullying is firmly on the agenda of the inaugural congress of the UCU. We are looking forward to the outcomes.

Suspension not always a neutral act

Mezey v South West London and St George's Mental Health NHS Trust (CA)

The use of an injunction to prevent an employer from suspending an employee was upheld recently in the Court of Appeal.

A consultant psychiatrist was subject to an internal disciplinary process. She voluntarily agreed not to undertake any clinical duties whilst the process was ongoing. Despite this, her employer suspended her. She argued that her professional reputation was being damaged unnecessarily and successfully obtained an injunction stopping the suspension.

It was found that in this case suspension was not a neutral act as it cast an inevitable public doubt over the employee's competency. Any eventual damages would not be sufficient to compensate for any loss of reputation.

In appropriate circumstances suspension will be the right course of action. But employers must carefully consider the use of suspension in each case.

From: Employment Bulletin, http://www.vwl.co.uk

University agrees to pay £35,000 after losing discrimination case

Academic not given job because she was Irish - Compensation on hold until after an appeal

By Clare Dyer, legal editor. Monday April 23, 2007. The Guardian

Warwick University has agreed to pay £35,000 in compensation, subject to appeal, to an Irish academic after a unanimous employment tribunal ruling that it discriminated against her on the grounds of her race. The Birmingham tribunal ruled last month that the university failed to select Patricia Walls for a research job because she was Irish and gave the post to a less-qualified candidate instead.

A spokesman for the university said that although it had agreed the amount of compensation, it did not accept the tribunal's finding that it was guilty of race discrimination and would be appealing. Payment of the compensation, for loss of earnings and injury to feelings, is on hold, pending the outcome of the appeal.

Dr Walls, 44, who originally comes from Northern Ireland but now lives in Chipping Camden, Gloucestershire, applied for a post in 2005 as a research fellow with the centre for research in ethnicity and mental health, part of the university's medical school.

The job was to carry out research aimed at improving mental health services for black and ethnic minority communities. Dr Walls, who has a PhD in ethnicity and health, has published and carried out extensive fieldwork on the subject. She works as an independent research consultant and holds an honorary research fellowship at Strathclyde University.

Of the four-person interview panel, which included three psychiatrists, two had worked with Dr Walls before. Sivasankaran Sashidharan, an honorary professor, had encouraged her to apply for the post after working with her at Glasgow on a project on the mental health of four minority communities: Afro-Caribbean, south Asian, Chinese and Irish. Hannah Bradby, a sociology lecturer, was on the same team as Dr Walls at Glasgow, but the tribunal found that the two had had a "poor relationship".

Of the three members of the interview panel who gave evidence, one said she had "flicked through" the university's equality and recruitment policies, while the other two admitted they had never read them. The panel did not assess the candidates against the advertised criteria and made their decision on interview performance.

During the interview Dr Walls asked which minority communities the research would cover and was told it would cover Afro-Caribbeans and south Asians. She said it would be a better project if it included the Irish and Chinese communities as well.

The tribunal said the candidate who was appointed had much less research experience than Dr Walls. She had yet to complete her PhD, although when Dr Walls queried the outcome she was told - in what the university says was a genuine error - that she already had a doctorate.

While Dr Walls had submitted a detailed CV, the successful candidate had not put in a CV at all. Dr Walls was given various reasons for her failure, some of which were "very misleading", the tribunal said. It concluded the decision not to appoint her was affected by the assumption the panel made that she would not be interested in the project unless it included the Irish community - an assumption which would not have been made about a non-Irish person.

Dr Walls said she was "very pleased" by the outcome and hoped it would encourage others to challenge flawed recruitment procedures.

How Employees Fight Back Against Workplace Bullying

Research characterizes affected workers as powerless in the face of more powerful bullies. Workers faced with relentless attacks also say they feel unable to protect themselves against or stop bullying. However, a recent study conducted by Dr. Pamela Lutgen-Sandvik, Assistant Professor of Communication at the University of New Mexico, suggests that workers may have more power than they think. Even though workers say they feel like there is nothing they can do to stop abuse, they take a stand by leaving the workgroup or organization, or they can fight back by gathering peer support and taking collective action, documenting abuse and allying themselves with powerful others, withholding work or information, and directly confronting bullies. In most cases, they use a combination of these tactics.

At first glance, it may appear that leaving is simply running away or giving up. However, the mass departure of workers in the face of bullying is marked by anger, disgust, and a desire to “send a message” to those in power. Amy, who worked in the sports fishing industry, said she wanted her resignation to “send a message to the bully.. . . He crossed my personal line in the sand . . . so I quit.” She went on to explain, “I left because two of my executives—the hardest working people in the company, the most honest, the most direct, the most trustworthy, ethical—and he bullied them. He'd debase them, and blame them, and debase them, and blame them, and he chipped away at them, and chipped away at them, until they both found other jobs. . . It was just morally wrong.”

Similarly, Steve left his 15-year position as a highly trained specialist in state government giving three days notice in order to “open their eyes.” As he explained, “I did everything I could . . . [and] nobody did anything. .. . I spent two days training my replacement . . . and was out of there. Let ‘em go down in flames! Maybe this will open their eyes.”

Amy and Steve’s accounts are not unique. Other stories are filled with tales of quitting, intentions and threats to quit, transfers and requests for transfers, and even helping each other get out—usually with the goal of sending a message or punishing the organization for allowing abuse to continue. Additionally, those left behind make use of the high staff turnover and hold it up to decision makers as proof that there is something very wrong in the organization. If bullying-affected workers have a theme song, it is David Allan Coe’s “Take This Job and Shove It.” The song title resonates with employees who have been bullied, since many quit specifically to communicate their frustration, disgust, and anger, or to punish the organization by permanently withdrawing their experience, knowledge, and skills.

Quitting is a visible way to resist, because speaking out is often such risky business. The risk is even more pronounced in workplaces where employees are systematically and persistently abused even before they speak out. Fighting back against bullies at work, often bullying managers or supervisors, can result in further harm to workers. Those who summon the courage to speak out want change but may receive punishment. They report abuse but might be labeled insubordinate for their efforts. If they go to upper-management, they can be accused of going outside the chain of command, although in most cases, doing so is crucial to ending bullying. Workers who agree something must be done and start documenting instances of abuse can provide support for workers’ claims, encourage others to speak out, and promote plans for collective resistance. However, these workers can then be called disloyal, troublemakers, crazy, disgruntled, or anti-team players, and may even be blamed for making things worse by others who silently hope abuse will go away.

Despite the risks, workers fight to change hostile work environments. They fight to end bullying both in groups with their coworkers and individually without support of others. When workers resist collectively, even in the absence of labor unions, organizational decision makers more often take action to stop abuse than in cases where workers fight back individually. Collective resistance usually includes both bullied and non-bullied workers. In fact, when those who are not being bullied speak out alongside those who are, change is more likely to occur. It also appears that collective resistance has fewer downsides for workers.

For example, of those who collectively resisted in the study, none were fired, but 20% of those individually resisting were fired. It seems that collective resistance provides a safer and more powerful way for workers to speak out against bullying at their jobs. This does not mean that individual resistance has no effect. In many cases, individuals resist without knowledge that others in their workgroup are also making complaints. In some cases, this buildup of individual reports gets the attention of upper-management.

Whether resisting collectively or individually, two tactics seem ineffective at stopping abuse. These are confronting the bully and withholding labor or information. Confronting the bully probably aggravates rather than improves the situation, and withholding work or information may go unnoticed. On the other hand, there are tactics that more often lead to upper-management taking corrective action.

Organizational change occurs most often when workers use three tactics in combination: (1) informal verbal or formal written complaints to organizational authorities, (2) written documentation of bullying (times, dates, concrete details), and (3) expert opinion (published research on workplace bullying). Although change often takes months to materialize, cases where workers fight back by going up the formal chain of command and working within the organization’s grievance system are most often associated with ending abuse.

Organizational authorities seem to favorably respond to written documentation. Documentation—of bullying incidents and the potential costs of bullying for the organization—is an invaluable tool for upper-management. Upper-management needs this information for investigation and to take actions deemed necessary to end abuse. Written documentation is even more convincing when combined with published research that verifies and names such occurrences as workplace bullying. Bullying research names the problem and verifies that it is a real, confirmable phenomenon and not simply an overreaction from thin-skinned employees.

When targets and witnesses collectively resist, work through the formal problem-solving systems available to them, and provide decision makers with documented evidence of abuse, this combination often moves decision makers to action. Using research and other published material also supports workers’ complaints and educates decision makers about the phenomenon of workplace bullying.
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About the author: Pamela Lutgen-Sandvik is Assistant Professor of Communication at University of New Mexico. Readers can contact the author via email: plutgen@unm.edu or log on to her homepage at http://www.unm.edu/~plutgen. Her research program focuses on negative communication at work, workplace bullying, and generalized harassment. This essay is based on the research article: Lutgen-Sandvik, P. (2006). Take this job and ... Quitting and other forms of resistance to workplace bullying. Communication Monographs, 73, 406-433.

This essay appeared in Communication Currents, February 2007. Online at www.natcom.org

The New Meaning of Leadership in Autonomous Universities

...Thus, leadership becomes an essential quality for an institution to allow it to develop a completely new self-understanding, to be strongly present in the outside world, capable of defending its own interests as well as being reactive to inside demands and needs. It becomes a major factor that will determine universities’ capacity for change in the context of external demands and expectations while at the same time developing an independent profile...

Thus three types of leadership seem to be essential in order to ensure that the change to autonomy for universities is a winning one also for those within the institution:

Visionary leadership means the capacity to look at the existing myths on which many universities are based and consider their validity today. This would bring about a new self-understanding compatible with the needs of academics and the demands of society. This is essential, since poor career structures and mechanistic assessment procedures can threaten the process of identity building.

Thus, to be visionary means to be capable of not simply buying into the Zeitgeist but reinforcing the university’s capacity to think ahead. Informed leadership addresses the issue of reconciling strong leadership with broad consultation structures. While collegial decision-making bodies might have led to lengthy decision-making routines
without clear responsibility structures, at the same time they were inclusive.

Informed leadership addresses the issue of reconciling strong leadership with broad consultation structures. While collegial decision-making bodies might have led to lengthy decision-making routines without clear responsibility structures, at the same time they were inclusive. Informed leadership would have to recreate this idea of inclusion in new ways.

Finally, creative leadership needs to interact with elements/structures in their environment in order to shape and control the universities’ relations of dependencies. While strategic choices have to be made within the limits imposed by the universities’ environment, the potential radius of action can be widened when creative and flexible internal institutional environments are provided. Creative leadership thus means rebuilding niches within the institution which do not necessarily follow criteria imposed from the outside...

By: Ulrike Felt, Professor of Social Studies of Science, Department of Social Studies of Science, University of Vienna, Austria (2003)

From: Managing the university community good practice, EUA CASE STUDIES 2007

Managing People in Universities: Successful Human Resources Management

In people-intensive organisations like universities, human resources management commands a key role in the context of overall institutional development. Even though people are the most valuable asset of educational institutions – also in fi nancial terms – many universities have established procedures for the administration of personnel, however not for ‘managing’ their human resources.

...In order for HR-management to make a lasting contribution toward quality improvement and institutional selfrefl ection of educational organisations, a shared understanding of all stakeholders that optimisation, through joint action, is possible and desirable, is necessary. This calls for an organisational culture which not only accepts responsibility for maintaining and improving the quality of work through putting in extra time, effort and personal commitment but which also provides the necessary institutional framework and mechanisms.

...Due to this highly individualised form of work, certain individuals have lots of elbow room in decisionmaking, even when it comes to the issue of who is going to be promoted and who is not – this type of autonomy produces highly individual results. In terms of individual career paths it is much less a particular organisation, or single university, that determines where someone is headed, but rather the so-called ‘invisible college’ of faculty peers acting across institutional borders. This look at organisational culture adequately explains the status quo of human resources management at universities.

The neglect of staff related issues is attributable also to the fact that the set of skills and competences every new member of the organisation brings along is considered as sufficient in itself. Individuals are held accountable for themselves; continuing education basically means acquiring new competences in one’s own area of expertise. The paradigm of individual performance is one of the reasons why experts are used to acting autonomously. They usually invest plenty of time, money and energy in developing their expertise and are used to focussing on a particular field of knowledge, leaving other areas to other experts.

Generally speaking, many educational organisations are characterised by a matrix organisation with a twofold ‘logic’: one being the logic of the organisation/institution, uniting different experts and disciplines under one roof, the other being the logic of the discipline, uniting experts of the same discipline across institutional borders.

Professional identity, as such, is closely linked to the discipline while the discipline is anchored more strongly in the monitoring of academic achievements. Accordingly, some of the classical tasks of HR development in the academic realm are performed via socialisation in a particular discipline, as e.g. the convention of historians. In contrast, the idea of ‘human resources development’ is more orientated towards the ‘organisation’, to which there is little attachment.

Likewise, the orientation, at universities, towards the international scientific community is characterised more strongly by attachment to a specific discipline beyond the confines of individual organisations. Stepping up the career ladder in one’s own institution is considered less of a success than mobility across borders, both in geographical and organisational terms.

If suitable concepts for human resources development at universities are to be deployed, the status of the university as an international organisation must not be overlooked. There are no common standards, as yet, for such key procedures as staff selection and performance review, and so the quality of these procedures varies with the ‘inborn talent’ of those in charge. Most procedures are ‘tailor-made’ and performance reviews tend to follow the logic of the discipline while other aspects of being a university teacher, such as management, teaching and continuing education, tend to shift out of focus...

By: Ada Pellert, Vice-Rector Academic Affairs, Head of the Department of Continuing Education Research and Educational Management, Danube-University, Krems, Austria (2007)

From: Managing the university community good practice, EUA CASE STUDIES 2007

Ten Ways to Encourage Discrimination and Harassment Claims - US

Following is a list of 10 mistakes that hasten the pulse of an employment attorney. As a litigator with more than a decade of experience representing employees against large and small companies alike, I can tell you that no matter how large or sophisticated the employer, these mistakes are surprisingly common.

• Don't post anti-harassment and discrimination policies

A prudent employer posts state and federal rules regarding harassment and discrimination in the places most likely to be seen by employees, namely break rooms, kitchens, employee restrooms and below or above the time clock. But don't stop there. The company anti-harassment policy should also be distributed on a regular basis along with paychecks. If you have a company Web site, post the policy prominently. Describe clearly the procedure that employees should follow if they believe themselves to have been targeted, and reiterate that your company does not tolerate retaliation against a person who complains about harassment or discrimination. Spell out what retaliation means.

• Don't create a paper trail of how you informed employees about your anti-harassment and discrimination policies

An employee who fails to use an employer's reasonable complaint procedure within a reasonable time may find his or her damages limited if he later sues. This is known in California as a McGinnis defense. An employer should consider requiring all employees to sign off on having received and read harassment and discrimination polices. Have employees sign twice a year for good measure. During litigation, the only response a plaintiff can have when faced with numerous copies of his or her signature on harassment policies is, "I didn't read it before I signed."

• Don't train supervisors to identify harassment or a harassment complaint

Once you put the policy in place, make sure front-line managers know what constitutes harassment and discrimination, and how to respond when they receive a complaint. California law now requires employers of 50 or more total employees to provide sexual harassment and discrimination prevention training to its supervisors. Every supervisor must receive a minimum of two hours every two years. Although employers with fewer than 50 employees are not obligated to train their supervisors, the smaller employer should do so, and consider more frequent trainings. Two hours may not be long enough to alter cultural resistance or indifference to legal norms of behavior in the workplace.

• Don't train supervisors to ask questions

The typical discrimination complaint when first made may not mention the words discrimination or harassment. Complainants may be crying, raging, mortified or understated. The first complaint may sound like "I don't like the way X talks to me." It is incumbent upon the employer to train supervisors to ask enough questions to elicit factual information about the substance of the complaint, or if they do not feel comfortable doing so, to immediately refer the complaining party to someone who is competent to handle the situation.

• Make the complaint process difficult

In a common scenario, an employer's complaint process requires an employee to report harassment to his or her immediate supervisor -- often the very person who has engaged in allegedly unlawful behavior. Thus a prudent complaint procedure offers at least two or preferably more routes through which to register a complaint. As an example, an employee may complain to his or her supervisor, his or her supervisor's supervisor, the human resources department, a toll-free complaint line or an e-mail address (but be sure that e-mails and voice mails are checked twice daily and that someone is assigned to follow up on the complaints).

Once an employer is on notice or should be on notice (the prudent employer does not park its head in the sand, hoping that bad vibes will somehow resolve on their own) for potential harassment or discrimination in the workplace, the employer has a legal obligation to conduct a prompt, reasonable investigation and to fix the problem.

• Make the complaint and investigation process humiliating

Investigation strategies differ from workplace to workplace, depending on the sophistication of the players, potential language and cultural barriers, willingness of employees to cooperate and the history of the conflict. It is clear, however, that before an investigation is complete, certain events should not occur: Neither the complainant nor the respondent should be threatened, intimidated, coerced or punished in any way unless the employer is confident that such action can be justified during litigation two years from now. An alleged perpetrator who is later cleared of having done anything wrong can turn around and sue. If the complainant is placed on paid administrative leave, the employer should consider placing the alleged perpetrator on paid administrative leave until the facts are clear.

When serious allegations are made and there is evidence to sustain them, it may be appropriate to issue a written warning to the perpetrator to stay away from the complaining employee and not to engage in any intimidation towards him or her. Unless the complaining employee is prone to violence, sending an identical letter to the complainant, however, is likely to aggravate an emotional situation in which the complaining employee believes him- or herself already to have been victimized.

• Set the complaining employee up for termination

Your employee's future attorney really hopes you do this. A retaliatory termination can look like this: An employer receives a complaint from an employee, decides the complaint has no legitimacy, or that the complaint was raised just to protect that employee from a bad performance review, and that now the employee has to go. As tempting as it may be to want to fire an employee who goes out on stress leave just as his annual performance review is about to start -- and it's a bad review -- retaliatory termination can make an otherwise garden variety harassment complaint extremely costly, both to litigate and settle.

Examples of retaliatory set-up occur when the employer starts documenting the complaining employee, but not anyone else; giving performance reviews only to the complaining employee; or targeting the complaining employee for infractions of company policy that nobody else is counseled about. If you have never put anyone else in the company on target for progressive discipline, now is not the time to start discipline for only the complaining employee.

• Move the complaining employee, not the perpetrator

You have conducted an investigation and concluded that the complaint had merit. You have moved the complaining employee to a location that is five miles farther from her home than where she used to work. The perpetrator, who is a supervisor, is still grinning lecherously at subordinates from the same office where he leered at the employee you just moved. Moving a complaining party will be treated by his attorney as retaliation if the move or change in circumstance causes a significant, negative change to his working conditions.

Do a close comparison before deciding that the two facilities are equal. You may think it's only five miles, but your former employee's attorney will find out during discovery that the "new" facility lacks air conditioning, or that it's known as the place where "bad" employees are sent, or that the building has a mold problem that you knew about. And if the perpetrator has not been moved, depending upon what else is going on in the workplace, that could look like retaliation.

• Don't check back with the complaining employee

A lot of employers make the mistake of telling an employee who has complained about harassment, "Check back with me if it happens again," or "If it happens again we want to hear about it." The chances are very good that when harassment has occurred once, and the perpetrator is still in the workplace, harassment will recur. It's human nature. The "perpetrator" is likely to be angry, or not completely finished, or both. Others may exhibit resentment towards the complaining employee by shunning him or her. And this time, if you have not been checking regularly with the complaining employee, the way you will learn about repeated harassment is when your HR department or reception desk receives an administrative charge from the EEOC or DFEH preliminary to a lawsuit.

A smart employer will provide an employee who has been harassed or discriminated against in the workplace with telephone numbers and e-mails to contact the people or person in the company who can make immediate changes if harassment recurs. The employer also will check back with the complaining employee once a week, and then once every two weeks, and then once a month, with a personal visit, at a time when both the visitor and the former complainant have time to engage in substantive conversation.

• Don't learn from experience

Juries will punish employers who don't heed warning signs in the workplace. If harassment is occurring in a remote location, it is time to travel to the office and investigate. It may become necessary to install an HR department or person at that location for a period of time, but one of the worst mistakes employers make repeatedly is assuming that a problem is taken care of because nobody is complaining -- at this moment.

Discrimination is a signal that the workplace is troubled. Policies may need to be reconsidered, written for the first time, abolished or translated into several different languages to accommodate an ever-changing workplace. Paying more than lip service to harassment may be what saves an employer from taking a significant hit from a jury.

Short of obtaining a release or waiver, there are no guarantees that an employee will not sue, and some employers will just have to wait out the statutory time limits to see how a story ends. The best protection against a lawsuit is the implementation of fair and impartial personnel policies that comply with, or exceed, the requirements of the California Fair Employment and Housing Act; and training of front-line managers in the identification of, and legally appropriate response to, even an appearance of harassment or discrimination.

By: Judith Wolff, The Recorder, June 22, 2006

Compromise Agreements: How bully managers get away with it

Simple story:

- First you made the mistake to raise a legitimate formal complaint against your bully fascist academic line manager. You were naive enough to think that the procedures in your university will work.

- Then you find out that you are accused of something you have never done. In effect, you are mobbed out of your work. The bully fascist academic line manager pulls the strings - he/she suspend you on spurious grounds.

- First you have to fight depression - some never recover, then you decide to fight back. The bully fascist academic line manager tries to dicredit you - your excellent staff appraisals are ignored. Internal procedures resemble a Mickey Mouse - Stalinist court.

- You continue to fight back - the last thing they want is you going to court.

- At some stage they realise they can't get rid of you - they have tried to make you resign - why should you? So now they start offering you money - compensation - they want to buy you out. Remember this is taxpayers' money.

Small problem: The compensation comes in the form of 'confidentiality agreements' and/or 'compromise agreements'. 'We will give you this amount of money BUT first you need to accept and sign a number of clauses!'

Well, we managed to get hold of one of these lovely documents, and here are some extracts:

'...The university will, as compensation for loss of employment but without admission of liability and without prejudice to Clauses XX, XX and XX below, pay to the Employee within fourteen days of the date of this Agreement the sum of £XX.XXX (“the Payment”).

...The Employee shall refrain from instituting or continuing before an employment tribunal any proceedings in respect of any of the Proceedings, and all grievances and disciplinary proceedings will be ceased by both parties.

...The Employee acknowledges that the university is relying on clause XX of this Agreement in deciding to enter into this Agreement. If the Employee breaches any of the warranties set out in clause XX and a judgment or order is made against the university, the Employee acknowledges that the university will have a claim against the Employee for damages of not less than the amount of the judgment or order.

...In the event of the Employee at any time failing to observe the terms of this Agreement or any of his obligations hereunder the Payment shall cease to be payable and the Employee shall upon demand repay the Payment and the university shall be entitled to recover as a debt any monies already paid only to the extent of damages actually suffered.

...The Employee confirms that he will return on or before the Termination Date to the university all equipment, records, correspondence, documents, papers, software, backup tapes, keys (including originals, copies and extracts of any of the foregoing) belonging to the university and any other university property in his possession or subject to his control or responsibility and that the Employee has not retained any copies of the foregoing.

...The Employee undertakes not directly or indirectly to make, publish or communicate any disparaging or derogatory statements whether in writing or otherwise concerning the university or any of its governors, officers, or employees and to maintain, without limit in point of time, confidentiality as to the reasons for which and the terms upon which the Employment was terminated and as to the business affairs of the university and the business and personal affairs of its governors, officers and employees subject only to disclosure for the purpose of obtaining professional advice or if required or permitted by law or to such information being or coming into public domain other than by disclosure by the Employee in breach of the terms of this clause.

...The Employee accepts the payment referred to in the Compromise Agreement as “the Payment” in full and final settlement of all other or any claims costs expenses or rights of action of any kind whether contractual or tortious other than the Proceedings and howsoever arising which he is or might be entitled to make against the university or its governors...

...The Employee agrees to refrain from instituting any proceedings in any Court or tribunal of relevant jurisdiction for any remedy arising from any matter under his contract of employment with the university or any other contract connected with the Employment and made between the parties to this Agreement or the termination of such contracts or arising during or in connection with the Employment or otherwise save for the purpose of enforcing the terms of this Agreement.'

More on psychometric testing...

Stuart said...

Bureaucratic brilliance - psychometric testing for corporate compatibility (no Albert Einsteins, Edward Tellers, eccentric thinkers or non-authoritarians need apply), but no testing for empathic and emotional maturity. Historians of science repeatedly refer to the context of progress, not the individuals.

Why aren't we working for respectful and dignifying environments in which everyone has the opportunity to excel, where disrespect and undermining the dignity of others is not acceptable?

A wise colleague once pointed out to me that people often actively promote the very skills in which they are themselves weakest, because they are correctly aware of the difficulties they face but incorrectly assume themselves to be experts. Thus the promoter of time management skills, or research skills or people managment is often hopeless at these same tasks, while the true expert does them apparently effortlessly and is not conscious of the need to continuously refer to them. The bullying institution will therefore be most proactive in manufacturing policy for the problems of which it is so painfully aware, but incapable of handling.