Like so many issues in law, it’s largely a matter of the language used to frame the issue. The New York Senate has passed a law prohibiting workplace “bullying” with bipartisan support that would expose employers to suit for hurting employees’ feelings. From the Wall Street Journal :
New York’s anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a “reasonable person” would find threatening, intimidating or humiliating.
The law reflects a popular political trend that’s likely to spread across the country, and covers not only the conduct of supervisors, but those of co-workers, holding the employer liable for hurt feelings whether they derive from the boss or the subordinate.
According to New York lawmakers, between 16% and 21% of employees have experienced health-endangering workplace bullying, abuse and harassment, and such behavior is four times more prevalent than sexual harassment.
Of course, the term “bullying” is loaded, a pejorative word that no “reasonable” person could dispute is a bad thing. But that’s how law works these days, characterizing conduct in a way that makes it appear awful so that no one could argue the opposite, that bullying is a good thing. And obviously it’s not. The problem is that the law doesn’t merely prohibit bullying, but anything that hurts a person’s feelings. This is where we get into trouble.
According to the Journal, the law would “allow workers who’ve been physically, psychologically or economically abused while on the job to file charges against their employers in civil court.”
Economically abused????? The mind boggles.
The bill defines “bullying” broadly as the “repeated use of derogatory remarks, insults and epithets” that the (mythical and chronically overly sensitive) “reasonable person” would “find threatening, intimidating or humiliating.”
Victoria is one of the nicest people around, frequently chastising me for being insensitive to the teacups. But this one is too much even for her.
Let’s give this proposal a second thought, particularly in the context of legal practice. We lawyers do endeavor to “keep calm and carry on.” We have been known, however, to push ourselves and to be pushed past our tempers’ limits. We’re human. We’re under a lot of pressure. And we’re fallible.
It didn’t happen often to me, but happen it did. The cutting remark to an associate not performing up to expectation. The curse made too audibly in the staff room. The harangue visited upon the hapless secretary who failed for the third time to make the necessary corrections.
The law seeks to take other workplace restrictions, such as discrimination on the basis of race, down the slippery slope of hurt feelings through the use of charged rhetoric and populist sensibilities. More people are workers than bosses, and there’s plenty of political capital to be gained by propping up the delicate flowers that have grown everywhere.
The concept ignores to countervailing concerns: First, jobs are not entitlements. Hate your boss? Hate your workplace? Nobody’s forcing you to work there, and you have no right to recreate the job to meet your demands and expectations. Quit and find one more to your liking. Can’t find one you love? Bummer.
Second, no business can function well based on the concept of homogenization, catering to the lowest common denominator lest one face litigation and damages by the biggest screw-up in the shop. It defies human nature, since no one likes to be told that they’re lousy at what they do, and yet too many people are, in fact, lousy at what they do. The days of excellence are not merely gone, but the target of hatred by the Slackoisie teacups. Today, businesses aspire to mediocrity.
This law institutionalizes the Happy Dynamic. People are not merely entitled to job, but one where their superiors and co-workers are legally obliged to make them feel happy. It’s not bad enough that people confuse unwarranted self-esteem with self-respect, but they should be entitled to it as a matter of law upon pain of damages.
As Vickie notes:
Combating bullying is a worthwhile – even necessary – ongoing business project. Making a federal (or state) case over the day-to-day management of any work force and the personal relationships team work requires is just plain nuts. At best, it is a jack-hammer solution to an Emily Post problem. At worst, it is a new scheme for extortion.
No one is saying that the employer has a right to flog her employees in the business square, or subject them to true humiliation. But laws that deny our humanity and the ordinary range of human emotions will prove ruinous to businesses, and consequently employees as well. This is the proverbial shooting of a fly with an elephant gun.
Employers have a strong incentive to keep the peace in the workplace, or they will lose employees and be incapable of operating. If an employer harasses his staff, he’s going to be a very lonely boss. But short of never saying an unpleasant word to an employee, someone is invariably going to be unduly sensitive and take umbrage to criticism, whether deserved or spoken in the sweetest, most dulcet tones ever. There are overly sensitive people out there (and increasingly more so), and you will never please them all.
I would take it a step farther, however. The undercurrent of this trend is that we’ve become a society of fragile teacups, ready to shatter any time someone looks askance at us. We’ve gone from the home of the brave to the land of the delicate. Toughen up, for crying out loud. Maybe the reason your boss called you a moron is because you’re a moron. And if you’re not, don’t cry about it but show her what you can do. No amount of whining and complaining is going to improve the quality of your work.
Instead, legislators are enacting the Teacup Protection Act. Respect is earned, not legislated.
Update: A group calling itself the Workplace Bullying Institute had this to say:
WBI counters the distortions
In the Greenfield (Simple Justice) blog: Equating bullied targets, many who suffer PTSD, with delicate teacups is assinine. Greenfield is a media-seeking lawyer, say no more. My longer response to his insensitivity can be found in the comments linked to the article at his blog. Why not re-name his blog, Justice for Simple Minds. For thoughtful legal mindfulness, visit Minding the Workplace, a blog penned by WBI’s favorite law professor.
They called me names. They hurt my feelings. Maybe I should sue? Nah. Lame attacks on me and Vickie (who they argue is a corporate tool!) do nothing to make bad law and unsound reasoning better. Their issue is grounded in false claims, that employees have a right to a job, a right to a work environment that suits their personal sensitivities and a right to remain in that job, enduring what they perceive to be abusive conduct by others, and sue for monetary damages rather than quit and find a workplace more suitable.
This isn’t, as they would argue, a matter of lacking compassion, but a matter of manufacturing “rights” that impose a duty on others to make them happy. While Title VII discrimination in the workplace had a conceptual ledge to stop the slide down the slippery slope, immutable and irrelevant characterisistics, this trend is has none. Everybody has a right to everything they want to make their world happy for them. And anybody who makes them unhappy is evil and should have to pay.
Indeed, they argue that neither Vickie nor I realize that mean words are “violence”. So much for words having meaning. The one things that flows from this insufferably emotional and irrational gang is that they embrace self-serving regulation to the exclusion of personal responsibility. They have no argument, just wild and silly accusations in the hope that others won’t notice that they are a bunch of irrational teacups. Thanks for proving it conclusively, guys.
This has nothing to do with compassion or empathy. Normal people feel badly for anyone in pain, even if they could have avoided it themselves by making sound decisions. But it doesn’t follow that every individual’s suffering necessarily begets a misguided law.