Wednesday, May 25, 2011

Workplace Mobbing and the Law

There is a growing body of literature concerning workplace mobbing and the law.

As early as 1988 the Stanford Law Review addressed the issue of workplace mobbing in the following article:

Regina Austin, Employee Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STANFORD LAW REVIEW 1 (1988). One of the earliest works on psychologically abusive treatment of employees, emphasizing racial, gender, and class dynamics.

I started working at the law firm of Akin, Gump, Strauss, Hauer & Feld in 1988.  I was terminated by Akin Gump days after I made a creditable claim of workplace mobbing with the firm's senior attorney managers.  What I find interesting is that Akin Gump was able to convince the D.C. Department of Human Rights that my claim of mobbing was actually a product of mental illness.  The D.C. Corporation Counsel was able to convince both the D.C. Superior Court and the D.C. Court of Appeals that my harassment complaint was without merit.

It is ironic that if a non-employee victim of workplace mobbing sought out an Akin Gump attorney (or a Williams & Connolly attorney) for representation in a lawsuit against his employer in the year 1991, and if that Akin Gump attorney (or Williams & Connolly attorney) advised the prospective client that his claim was without merit without first researching the legal literature on workplace mobbing, we would have to question his professional competence in light of the recognition of workplace mobbing in the literature.

What does it say about the D.C. Department of Human Rights that it was not aware of the published literature concerning workplace mobbing in the period 1992-1993?


Gary Freedman said...

As I have said elsewhere:

1. A harassment complaint based on “very subtle” behavior by coworkers is legally cognizable, and I directed the Court to the following:

“9/ Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint "baseless as proof of sexual or religious harassment" [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. At least one court (in a foreign jurisdiction), noting that "sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle," has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff's work environment and the sexual connotations of seemingly trivial events. Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).”

My recital of harassing incidents could have led to one of three conclusions by Akin Gump’s attorney managers (both Dennis M. Race and managing partner Laurence Hoffman started their careers as labor lawyers): (1) I was simply mistaken but not mentally ill; (2) I was a victim of very subtle harassment (see Eide, above) and not simply mentally ill; (3) I was mentally ill. Akin Gump’s sworn declaration implies that it could have reached only one conclusion: that I was mentally ill and not suitable for employment.

The subtle form of job harassment known as mobbing or bullying to which I may have been subjected has been recognized in the literature since the 1970s. The fact that the D.C. Human Rights Act does not provide a legal remedy for mobbing victims does not vitiate the fact that the very existence of a subtle form of workplace harassment known as mobbing (or the subtle harassment considered by the Court in Eide, above) detracts from Akin Gump's implied assertion that it was compelled to view my allegation of subtle harassment as necessarily the product of mental illness and not something else.

Gary Freedman said...

I mention Williams & Connolly only because it has a major employment law practice.

The firm's webpage states: In cases involving claims of race, age, disability, and sex discrimination, the firm has represented a wide variety of individuals and companies, including several major media companies, major law firms, a Fortune 500 pharmaceutical company, a nationally known charity, a major bank, major universities, a large supermarket chain, large railroads, several hotels, a car dealership, and a national magazine. The firm's experience covers not only employment discrimination claims of individuals, but also the defense of class actions involving thousands of individuals and millions of dollars. Although we often represent defendants, the firm has also represented plaintiffs with employment discrimination claims.

Gary Freedman said...

Prof. Derrick Bell, cited for special thanks by Penn Prof. Regina Austin in the cited law review article, is visiting prof. of const. law at NYU Law School.

Linda Wilson said...

I'm curious: Has any mobbing victim been fired after being accused of being mentally ill, and then subsequently applied for Social Security Disability based on that accusation of mental illness? If so, has he then been denied disability because he is not, in fact, mentally ill?