Journal of Business and Behavioral Sciences Volume 23, Number 1 issn 1946-8113 Spring 2011 inthis issue

What is clear is that bullying is a serious, if unrecognized, workplace issue, with significant psychological, social and organizational costs. Bullying causes a variety of negative consequences to both employee health and wellness and to organizational productivity. These include low job satisfaction, absenteeism, turnover, burnout, anxiety and depression (Glendinning 2001; Hoel and Beale 2006; Keashly and Jagatic, 2003). To complicate the situation, there are victimization issues relating to either blaming the victim or baiting the bully (so that the bully can be subsequently disciplined) (Aquino et. al. 1999). Moreover, in rare instances, bullying can precipitate workplace violence (Tracy et al., 2006).

While bullying in the workplace is prevalent, pervasive and costly, there do not seem to be adequate (much less agreed-upon) mechanisms for resolution, or sufficient research to guide the development of these mechanisms. Intervention as a strategy to combat bullying is a frequent research topic. Tracy et al. (2006) suggest that one way to avoid these costs is early intervention before the bullying escalates into an established pattern. They suggest that talking about the bullying and their ―targets‖ gives voice to the term ―bully, ‖ similar to giving voice to the words ―sexual harassment.‖

Beswick et al. (2006) suggests that there are few, if any, ―formal‖ evaluations of bullying intervention programmes. Rick et al. (2002) found no studies examining evidence on interventions to reduce the bullying/harassment stressor. Saam (2009) interviewed consultants who specialize in bullying consultation and asked which intervention strategies they applied. They stated that they used conflict moderation or mediation, coaching, and/or organization development. However, Saam noted that mediation is an inappropriate intervention strategy and that coaching and organization development are follow-up interventions at the group and organizational level , compensating for the failings of interventions. She suggests that testing these interventions is necessary. Salin (2009) also explores the types of interventions used.

Suggestions for interventions have been made by UNISON, ACAS, WHO, European Parliament reports, European Agency for Safety and Health at Work, and the Swedish ‗victimization at work‘ Act. These include all stakeholders know about the problem, draw up formal policies, provide information and training, develop secondary prevention, allow for work redesign improve organizational culture, and conduct leadership training (Beswick et al. 2006; Hoel and Gibar 2006). This variety (and uncertainty) suggests that there appears to be no quick fix solution to alleviate problems of destructive behavior and bullying.

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Another complicating factor in bullying concerns the environment in which it occurs. Numerous researchers have documented differences between the public and private sectors (Klare, 1982; Begin, 1971; Poole et al, 2006). These studies consider that the differences not only are in organizational structures but also are in a variety of human resource management practices (Blank, 1985, Perry and Rainey, 1988; Boyne et al., 1999; Boyne, 2002; and Jackson and Schuler, 1995). There is evidence that worker values and motivation can vary between the two sectors (Stackman et al., 2006; Jurkiewicz et al., 1998; and Karl and Sutton, 1998).

There are differences in how performance appraisals are conducted, differences in union density/membership and differences in compensation and pay equity in the two sectors: Abu-Doleh and Weir (2007) identify performance appraisal differences; Robinson and Tomes (1984) discuss unionized wage differences; Lucifora et al., (2006) note wage gaps in the public sector internationally and Farber (2005) and Freeman (1988) describe union density differences. Mesch (1995) and LaVan (1990) identifies differences in the grievance process between the public and private sectors. LaVan et al., (1987) discuss pay equity and comparable worth in the public vs. private sectors. Moreover, there is evidence that these differences persist internationally (Budhwar and Boyne, 2004).

Thus a perspective in this paper is that public sector employees are distinctive in their employment relationships, which may lead to a distinct form of workplace bullying. Some studies suggest that bullying may be greater in the public sector (Hoel and Cooper, 2000; Zapf, et. al. 2003; Lewis and Gunn, 2007; Salin, 2001). This might be because many public sector jobs have a great deal of emotional labor rather than instrumental roles (Hochschild, 1985, Zapf et. al., 2003). ). Public sector employees likely have a special type of employment status in that typically, they are protected by civil service rules and regulations, may well have unions representing them, with internal grievance procedures, and/or are likely to be covered by statutes that provide for protection against retaliation for whistle blowing.

Current legal protections seem to be as varied as they are limited in their efficacy in protecting victims of workplace bullying. Civil lawsuits are one remedy: victims have pursued lawsuits for intentional infliction of emotional distress (IIED). Other tort lawsuits have included issues of assault, battery, or false imprisonment. Yamada (2000) concluded that existing law did not adequately protect bullied employees and set out a general proposal for developing statutory responses to workplace bullying. He began to draft the

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Federal laws that may protect workers include Workers‘ Compensation, Title VII of the Civil Rights Act, ADA, anti-retaliation provisions of various laws, including those governing protection for whistle blowing, OSHA, and the National Labor Relations Act. Workers compensation claims may provide possible protection, when workplace bullying causes an employee to be incapacitated. Bullying can create hostile work environments that may be actionable under Title VII of the Civil Rights Act. Since complaints of discrimination or sexual harassment, participating in union organizing activities or engaging in whistle blowing can in themselves often precipitate bullying, there may be legal coverage for the victim from the anti-retaliation provisions of these laws. In addition, there may be a public policy exception to the employment-at-will doctrine. OSHA could provide greater legal protection against bullying by recognizing that bullying causes workplace stress (Yamada, 2000, 2004).

A union/non-union working environment can be yet another factor in defining and ameliorating bullying. Union grievance procedures have been one of the most important mechanisms to reduce abusive practices and provide a means of redress when violations occur (Shostak, 1991; Edelman, 1990; Dobbin et al. 1993). However, Roscigno et al., (2009) found that unions did not appear in their study to lessen the likelihood of bullying. They suggest that this might in part be caused by the fact that unions tend to emerge in organizations that are characterized by bullying and abuse of power. In addition, according to the Workplace Bullying Institute, bullying behavior is illegal only 20% of the time, thus making it more difficult to deter. However, in March 2009, the Massachusetts public employee unions affiliated with the Service Employees International Union approved the first anti-bullying provision in a major collective bargaining agreement in the United States ( Workplace Bullying Institute www.workplacebullying.org/unions.html).

Furthermore, there has been little published evidence that organized labor has recognized the problem of workplace bullying in the American workplace. If one union member who claims to be a victim of bullying files a grievance against another union member who is the alleged bully, and if the union supports the victim, the bully may file a complaint against the union claiming it failed in its duty to fairly represent that union member.

A common way that unions handle this issue is by filing a grievance against management for not providing a safe work environment or for not creating a non-hostile work environment. Remedies that might also exist in a unionized setting can include negotiated labor-management contract provisions,

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Recent research has examined the prevalence of bullying among certain occupations, both in the private and public sectors. The literature contains a variety of studies on bullying of members of specific types of occupations: nurses or other health care professionals (Dellasega, 2009; Hutchinson et al., 2005, 2006, 2007, 2009; Mayhew et al., 2004; and Timo et al., 2004). Some studies suggest that 44% of nurses have been bullied (Dellasega, 2009). Other occupations in which there is evidence of bullying include restaurant employees (Mathisen et al., 2008); teachers (Smith et al., 2003); university professionals (Bjorkqvist, et al., 1994; Mayhew et al., McKay et al., 2008); business professionals (Salin, 2001); transportation workers (Mayhew et al., 2004); and police (Waddington and Braddock, 1991). There are also studies that have multiple occupations in one study: blue collar workers, clerks and service workers, associate professionals, managers and professionals (Niedhammer and Degioanni, 2007; and Ortega et al., 2009).

Current research tends to be conceptual, especially relating to status incongruence (Salin 2003; Heames et al., 2006) or prescriptive (Glendinning 2001; Berry 2005; Gilbert 2005). While minimal literature exists regarding the management of bullying in the American public sector workplace, two streams of literature are emerging. The first stream relates to public sector employees in Canada, Europe, UK, and Australia. The second stream is a set of articles that use public employees in the samples of their empirical but anecdotal research (Coyne et al., 2003; Lewis 2006). Coyne, for example, used 36 teams or 288 individuals in one public sector organization. Lewis intensively interviewed ten British women, all of whom were public sector professionals.

Strandmark and Hallberg (2007) investigate the manner in which bullying is initiated in public service sector workplaces, and found that bullying was preceded by a long-standing struggle for power. This power struggle emanated from conflicts of values caused by organizational conditions, leadership styles and the involved parties' work expectations.

In an article published in Public Personnel Management, Glendinning (2001) directed the public‘s attention to bullying by calling it a cancer in the American workplace. Although not specifically referring to the public sector, his

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The focus of this research was to examine bullying behavior by public sector employees that was litigated in Federal courts. Litigation is considered as an extreme, especially in view of other mechanisms for conflict resolution: civil service procedures or mediation. It should be noted that most bullying cases are resolved without going to court. However, the ones that are litigated represent the most public ones. The research questions are related to who the bully was in terms of occupation, what behavior he or she manifested, what the organization‘s response was, and the outcome of the litigated case.

The search strategy that was used was ―bully or bullying‖ in the Lexis
Nexis legal database of cases. Cases have been selected to illustrate the

pervasiveness of bullying in the public sector. They were selected irrespective of type of organization or position to illustrate the range of laws under which bullying was litigated. Multiple coders analyzed each case, and subsequent review of the cases for summarization led to increased reliability.

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.

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Portrayed are case characteristics such as Court Level, State, Occupation of Bully, Type of Organization, Type of Bullying Behavior, Legal Basis, and Managerial Actions, which led to various outcomes in these cases. Each resulted in a federal court case. Taken as a whole, they are illustrative of the variety of occupations, organizational types, kinds of bullying behavior, managerial action that was taken, and legal outcome. This set of cases is not intended to be exhaustive nor is it a statistically valid sample. However, by showing this range of settings and circumstances, these cases do shed light on the wide array of situations in which bullying has been occurring at U.S. workplaces.

The occupations of the public sector bullies were diverse, ranging from prosecutors to prison guards to officials of federal agencies. They tended to have higher status than their victims, although in three of the ten cases there was low differentiation in status between the bully and the victim. Sometimes it was members of the public who were the victims of the public employee‘s bullying, which took place within the context of the workplace. In the instances where there was high status differentiation, it would have been expected that a higher-ranking employee would moderate and/or manage the bullying.

The bullying behavior varied from verbal abuse to threats of adverse employment action to actual physical abuse. An unexpected frequency of bullying had a physical component. Hostile organizational contexts were created by the bullying. In some cases, the organization took no negative action, either because the victim quit, or because the officials were trying to support the victim. Other actions taken by management against the perpetrator included demotion, transfer, reprimand or termination. In terms of the case outcomes, six decisions were in favor of the victim, six rulings were for the employer and in four cases, the decision was split.

From the published research which had been examined prior to reviewing a selection of litigated cases, it had been anticipated that clear legal bases for protecting employees in the workplace would have emerged, much as Yamada (2000) had detailed. But while cases litigated in federal courts involve public employees bullying either each other and/or members of the public, just one law has emerged to support the victims of bullying behavior—42 U.S.C. §1983, which is a civil action for deprivation of rights.

This section of the research provides more in-depth summarization of the litigated cases and their elements in the sample in this study. To be included in the sample, a case had to be in the public sector and contain the word ―bully‖ or ―bullying.‖ Despite the distinction discussed above, in practice it was difficult to distinguish between harassment and bullying. However, what is clear from these cases, all of which reached the federal court system, is that the circumstances in

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In light of the data that suggest these cases are merely the ―tip of the iceberg‖ as to overall frequency of occurrence, it is reasonable to conclude that either through judicial intervention or statutory enactment at the state or federal level, a codification of rights, responsibilities, and avenues for redress of proven bullying behavior may well emerge in the foreseeable future. A confluence of forces, including HR executives, plaintiff attorneys, citizen interest groups, legislators, and the judiciary itself, may well coalesce on the need for a system to redress this significant workplace problem, short of continued resort to lawsuits and other legal actions.

Several themes appear from an analysis and synthesis of the sixteen cases that are summarized below:

1. 
   The greater variability in circumstances that forms the context in which the public manager and public employee interact also is manifested in a wider array of situations where bullying behavior occurs. In the private sector, off the job behavior might more readily be viewed as lacking the nexus to the employment relationship. However, as evidenced in cases such as Dockery and Skeens, off-the-job interactions or relationships tangential to the workplace can have impact because of the different nature of the public employer.
   
2. 
   Whereas in the private sector, it is the interactions that ordinarily arise from the continuing relationship between individuals that are likely to produce issues of harassment or bullying, in the public sector even a single, one-time interaction that involves a public official could result in a finding that there had been bullying behavior. The Sukwanputra case illustrates this well, where the perpetrator of the offense was a judge, ordinarily a highly respected public official who might be thought to be above such actions, simply based upon the customary deference that would be accorded that public position.
   
3. 
   The fact that a number of federal and state laws expressly define individual rights vis a vis the state or federal government, and these statutes are not always applicable to the private sector work place, helps explain the ―crazy quilt‖ pattern of situations that this small and unscientific sample of cases reveals about the presence or allegation of bullying behavior in the public sector. Cases such as Demoret, Fago, Dunn, Garcetti, Walters, and Johnson, all involve circumstances where the case claim rested upon real or asserted rights that existed by virtue of the fact that the employer was a public entity.
   

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Each case would have been difficult and perhaps impossible to push forward were the facts modified so that the employer was a private enterprise, and not some arm of government.

Taking these themes into account as the facts in each of these cases is presented below, it becomes all the more apparent how the issue of bullying by managers in the public sector requires consideration separate from that of the private sector workplaces, given the greater complexity of circumstances that arise, especially if prescription policies or statutes are to be developed.

Legal protections governing workplace harassment may also afford protection to the victims of bullying behavior. In Demoret v. Zegarelli, a 2005 U.S. District Court case, two women filed suit under Title VII of the Civil Rights Act, the Fourteenth Amendment to the U.S. Constitution, and New York State law, claiming they were subjected to a hostile work environment, adverse employment action due to gender, and retaliation, for complaining about employment discrimination.

The alleged bullying behavior involved disrespectful and unprofessional treatment, condescending and accusatory questioning, monitoring of time and attendance, removal of job responsibilities, being shunned, being humiliated at meetings, and transfer to an isolated office. The District Judge affirmed their claim the public managers created an illegal hostile work environment by their bullying behaviors.

Fago v. City of Hartford

The bullying behavior may be by the plaintiff. In Michael J. Fago v.

performance-related reasons including bullying behavior that included gestures, physical actions, and a continuous pattern of harassing and intimidating conduct.

A public organization may become involved in a lawsuit even where the bully is not a direct employee, but an independent contractor. In this 2005 U.S. Court of Appeals case, the plaintiff sued the physician, an independent contractor, and the hospital, claiming that the physician ―made life miserable for her and other women on the staff.‖ The court unanimously found the hospital had liability under Title VII of the Civil Rights Act. Though the physician was

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This case reveals how there are limits on the free speech of public employees when their speech is pursuant to their duties as an employee and they try to turn their job into a ―bully pulpit‖. In this Supreme Court case, Gil Garcetti v. Richard Ceballos, the issue in 2006 was whether a public employee‘s speech in conjunction with his work product comes under First Amendment protection.

The District Court sided with supervision, because the plaintiff‘s memorandum was written pursuant to his official employment duties, so he was not entitled to the First Amendment protection for free speech a private citizen would have. The U.S. Court of Appeals reversed, saying the memorandum was a matter of public concern, and the interest in free speech outweighed the supervisors‘ interest in responding to that speech.

The Supreme Court ruled, 5-4, that the Court of Appeals had erred, and reinstated the District Court decision. The Supreme Court did not speak specifically to whether this retaliation constituted unlawful bullying behavior as retaliation for the exercise of speech.

Some employers have formal mechanisms in place to officially sanction the bully. In Dale Walters v. County of Maricopa, AZ, a 2006 U.S. District Court case, a police department sergeant sued the former county attorney and others, claiming he had suffered defamation, violation of his First Amendment rights and a threat to be ―Brady-listed.‖ ―Brady-listed meant that the officer‘s name was placed in the Officer Integrity Database, which was a list of officers whose truthfulness was questionable. The list would have to be disclosed to defense attorneys, pursuant to a 1963 Supreme Court decision of that name.

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The District Court found that the county attorney had tried to bully the plaintiff but also concluded that verbal threats did not qualify as adverse employment actions under the First Amendment. ―Mere speech, in response to speech, [did not] constitute a First Amendment violation.‖ The Court concluded that the retaliation for exposing investigatory misconduct was unconstitutional, a violation of a First Amendment right to inform superiors of misconduct without retaliation.

Bullying may be subtle and take the form of excessive discipline. Sometimes bullying involves clients as well as employees. Dockery v Unified School District No. 231, U.S. District Court, 2006 illustrates both. The issues concerned racial bullying and harassment of an African-American school child by fellow children, and illegal employment discrimination against the African-American father of the school child, a school district custodian. In response to repeated verbal racial taunts, and physical abuse, a 10-year-old‘s parents wrote several letters to the school district superintendent decrying the racial bullying, harassment, and lack of response by school officials.

Bullying may involve inmates. In Johnson v. Blaukat U.S. Court of

confined to her cell for twenty-three hours a day after complaints she and others had bullied other inmates. Several correctional officers had entered plaintiff‘s cells and subdued her. These actions led to the charge of excessive force.

Bullying by public employees can occur while the employee is off-duty and off-premises. In Skeens v. Shetter, a 2006 U.S. District Court case, an off duty police sergeant had bullied a civilian who had parked in a restricted area. He alleged malicious prosecution, malicious use of administrative process, and violations of his constitutional rights. The District Court rejected all his claims, since he had never been prosecuted, arrested, fingerprinted or photographed in connection with the official misconduct charge, nor required to attend any hearing related to it. The Court found no administrative impropriety, as there was probable cause to bring the official misconduct charge based on the credible statements of the civilian the public employee had bullied.

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Even a judge may be the bully. In Sukwanputra v. Gonzales, U.S. Court of Appeals 2006, plaintiffs sought asylum in the United State. An Immigration Judge rejected their request, finding their claims neither plausible nor credible. On appeal, the U.S. Court of Appeals directed a remand. The Court also concluded the Immigration Judge used speculation and conjecture, not evidence, to form his conclusions. Finally, the Court concluded that the Immigration Judge derogated his responsibility to appear impartial. The Court chastised him, and noted that in another case he had been guilty of bullying behavior, with a tone that was hostile and abusive. Thus, the Court of Appeals granted the petition for review and ordered the case to be remanded, urging that a different Immigration Judge be assigned to the case.

In some cases the bullying behavior can result in a discrimination suit if it is directed solely at a protected class. In Powell v. Lockhart the defendant yelled at and bullied only his female subordinates. The plaintiff alleged that she suffered a hostile work environment and a negative performance review. After the plaintiff filed an EEOC claim for sex discrimination, the defendant retaliated by reducing her hours, placing her on a 90 day performance improvement plan and proposing termination. The EEOC determined this behavior was retaliation and the defendant decided not to proceed with the termination. A couple of months later the plaintiff received another negative performance review that disqualified her from a salary increase and performance bonus. The harassment continued to worsen and the plaintiff eventually left the organization.

In Donald Kaulia V County of Maui Department of Public Works and Waste Management (2007) the plaintiff filed a race discrimination claim for discrimination from his direct supervisor and gross negligence on the part of management. The defendant had been known by the other employees as a bully and management had been aware of this perception. According to the claim that Kaulia filed, his direct supervisor created a hostile work environment through racist statements and intimidation. The defendant had a history of bully behavior that was not limited to the plaintiff and did not appear racially motivated. In 2000 the defendant threatened two other employees with violence. One was Caucasian and the other was African American, which demonstrates the defendant was not picking on a particular race; rather he was bullying the employees equally. The plaintiff falsely attributed many events during the course of his employment to racial discrimination. including the inadvertent omission of his name from a schedule, the failure to provide him with an ID badge and work boots, a denial of his request for transfer, and actions taken to correct an accidental overpayment. The court found no evidence of race discrimination or preferential treatment of Caucasian employees over non-Caucasian employees.

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This case involved a firefighter who was bullied by his fire chief. The chief threatened him, spread false rumors about him and attempted to publicly discredit him, calling him a liar in front of the entire staff. Management was aware of the chief‘s history of bullying behavior and the chief even volunteered to go to EAP for his ―anger problem.‖ When the plaintiff sought redress, both the union and management failed to investigate or prosecute his claims. According to the policy outlined in his contract, the plaintiff was to follow the grievance procedure; however, the union official refused to submit a grievance for political reasons. At a meeting called by the Personnel Director the plaintiff was reprimanded for attempting to retain counsel and the Personnel Director refused to discuss the plaintiff‘s complaints. When the plaintiff filed suit the defendants argued that he had failed to exhaust all remedies available to him under his collective bargaining agreement. Therefore he was not entitled to legal action. A judge ruled that contractual provisions did not bar legal action and allowed the case to proceed.

Some employers are taking action to prevent workplace bullying. In this case the Morristown police department refused to hire Terry based on his history of bullying behavior. They received a memo from another police station stating that he had been fired for physical aggressiveness and was considered a bully. A pre-employment psychological evaluation found that his personality was ―consistent with individuals that have trouble regulating their emotions‖ and that ―he would have difficulty effectively interacting with the community during emotionally charged, stressful and complex situations.‖ Terry, who admitted he wanted the job partly for the excitement, sought the opinion of an outside evaluator. That person found that he had a ―personality profile within the normal limits.‖ Terry appealed first to the Medical Appeal Panel and then to the court. Both upheld the decision that he was unfit for police duty.

In Pistoresi vs. Madera Immigration District (2008) both the plaintiff and the defendants were involved in bullying behavior with no clear victim. According to the suit Pistoresi, who had been elected to be the Chairman of the board, was subjected to collusion by the other board members to interfere with his duties and discredit him in the press. He was also subjected to pervasive threats and harassment. He responded to one confrontation with the General Manager by threatening him and physically assaulting him. In response the Employee Association of Madera Immigration District filed for a restraining order against Pistoresi, which was denied because the court did not see Mr. Pistoresi as a threat to their safety. Both Pistoresi and the board of directors took legal action against each other, both of which were dismissed. No one party emerged as the aggressor or the aggressee. Pistoresi declined from running for reelection, fearing future bullying and the General Manager was terminated.

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There is a fine line between bully behaviors and tough management practices. In the case of Gary Hicks vs. City of Montgomery, Hicks alleged that his direct supervisor was creating a hostile work environment. According to Hicks his supervisor bullied, communicated with him in a condescending manner, gave him demeaning assignments, yelled at him and micromanaged him. The defense responded that his supervisor was merely ―a mean boss.‖ The court ruled in favor of defendant, dismissing Hicks‘ claim.