Dangers of Taking Legal Action Against Assholes

The
New York Post ran a story earlier in
the week called Despot Measures: Should Workplace Bullying Be Outlawed?. I found it to be an interesting and balanced
story, as it described how a number of states -– including New
York and New Jersey — are currently considering anti-bullying legislation. Essentially, the idea of these bills is to
punish employers that allow “equal opportunity assholes” to get away with doing
their dirty work, thus going beyond current laws against race and gender-based
workplace abuse. To quote the Post article by Brian Moore:

Professor
David Yamada of Suffolk University Law School has studied
workplace bullying for years. In response to the problem, he’s written
legislation that’s serving as a model for most antibullying bills across the
country, including New York and New Jersey.

Essentially
the laws would lower the bar for those who want to bring suit against a
tormentor. While one can sue now, such bids hardly ever win – these laws would
improve plaintiffs’ odds by creating a set of criteria for what’s actionable.
Under Yamada’s template, that would include “repeated infliction of verbal
abuse such as the use of derogatory remarks, insults and epithets; verbal or
physical conduct that a reasonable person would find threatening, intimidating,
or humiliating; or the gratuitous sabotage or undermining of a person’s work
performance.”

Yamada
says the law has sufficient hurdles to prevent silly, vengeful lawsuits. The
target must demonstrate “malice” on the part of the bully, for example, and
“there has to be a tangible showing of physical or psychological damages.”

I confess that
I’ve been ambivalent about such legislation. On the one hand, I do think that
equal opportunity assholes and the employers that lack the courage to stop them
do deserve to be punished. I also
recognize that the threat of litigation may encourage companies to take a more
aggressive stand against asshole behavior. On the other hand, I worry about the legalization of everything and that
those with biggest incentive for such
legislation to pass are employment lawyers. After all, anti-bullying
legislation means more work for lawyers who defend both assholes and their
victims. I am still trying to develop a
firmer opinion on this matter, and invite advice and arguments, but for the
moment, I think that the threat of the legislation is a good thing because it
raises awareness about the problem and might help some of the worst assholes
and their firms to reform –- but I am not sure I actually want any of this
legislation to pass.

There is, however,
another angle to legal action that I have more well-developed opinions about.
In the article, I am quoted as saying, if you are in an abusive workplace, the
best thing you can do is “Get out as quickly as possible.” I realize that this isn’t always possible,
and indeed, that is why I assembled a list of tips
for victims of assholes – which include the suggestion to people who can’t
or won’t escape that they ought to carefully document abuse, as that will help make case to HR, or if that
fails, for legal action. BUT I think it
is important to explain why I am so vehement in my opinion that, if you are in an
asshole filled workplace, getting out is the best solution. These opinions were clarified for me after
having an enlightened dinner with two world-class attorneys after my
speech last Monday at the Commonwealth Club. My three main arguments
against staying around, taking sustained abuse, documenting the case, and
fighting back – especially through legal action are as follows:

1. First and
foremost, as the two attorneys emphasized, to win a case against an employer,
an employee needs to demonstrate that he or she has suffered damages. This
means that THE MORE DAMAGE THAT YOU SUFFER, THE MORE MONEY YOU ARE LIKELY TO BE
AWARDED. This means that the worse the
abuse you take, and the longer you take it and the more harm you suffer, the
more money you have a shot at winning. Indeed, recall Professor Yamada’s point:

The
target must demonstrate “malice” on the part of the bully, for example, and
“there has to be a tangible showing of physical or psychological damages.”

So, the more you
lose – – the deeper your depression, your anxiety, and your financial losses, and the more physical ailments you suffer –-
the better your case. The implication
for me is WHY NOT GET OUT BEFORE YOU SUFFER TANGIBLE DAMAGES IN THE FIRST
PLACE?  Or at least why not  get out  with as little damage as possible, and get one with your life?

2. Remember,
psychological abuse isn’t just something that “good people” heap on “bad
people.” As I show in The No
Asshole Rule, research on emotional contagion, and on abusive
supervision in particular, finds that if you work with or around a bunch of
nasty and demeaning people, odds are you will become one of them. This not only
has ethical implications, it means – ironically – that you might just find
yourself in the odd position of suing others – and being sued yourself – to
recover the costs of workplace abuse.

3. Finally, as
those lawyers reminded me, the litigation process means re-living the damage
that you have suffered over and over again. You will have to tell your story over and over again, and rather than
getting past the incident, your “financial incentive” is not only to emphasize
all the damage you have suffered in the past, but to continually uncover
evidence of the damage that you continue to suffer. In addition, if you have never been through
deposition or trial with opposing legal counsel, remember, it is their job to
discredit your testimony – so you not only have to relive past distress,
painful new ones will be heaped on you during the litigation process. Again, even if you win your case against the
assholes, you are likely to suffer a lot of damage in the process. This drain on your time and energy as well as
the stigmatizing impact of being a plaintiff against a former employer may also
have an adverse impact on your prospects for future employment and promotion.

In closing, I want
to emphasize that I encourage and applaud people who fight back against
workplace assholes in any way that they can, including through legal
means. I encourage people who have
already suffered damages to fight back. And I am also painfully aware that many people are trapped with assholes
with no immediate prospect of escape, and that taking legal action of some kind
may be the only option left in some cases. At the same time, I believe that people who choose to take legal actions
against their employers should understand the risks they face… and that is why
I continue to believe that, if you work with a bunch of assholes, the best
thing to do FOR YOURSELF is to get out as fast as you can.

P.S. One of the
lawyers did point out an interesting benefit of bullying legislation for victims.
She noted that legislation that makes it easier to state a claim against an
employer for an abusive work place may encourage employers to settle such cases
much earlier.  This means that a benefit of the
legislation may be that abused employees will have greater leverage to pursue a
settlement before filing litigation, and that settlement, in turn, might
give victims the financial cushion they need to recover and find another job. But I still have mixed feelings about whether
I want such legislation to become law.