Wednesday, April 24, 2019

Understanding the Need for and the Current Protections of Upstanders

If we are ever truly going to achieve the goal of eliminating workplace harassment and bullying from the American workplace, including the bullying of teachers and other K12 employees, there are a number of things that must be done. First and foremost, we will need a strong federal law, with strong enforcement. The current legal protections against workplace harassment have failed to even protect all targets of status-based harassment, much less the broader phenomena of workplace bullying. Second, even if a strong law is passed, we also need the help of bystanders. We need bystanders to become upstanders to defend and protect targets of bullying and to call out the bullies in their workplaces. Even in the absence of strong laws, upstanders can help to eliminate a great deal of the bullying in our workplaces. The focus of this blog will be on this former part of the solution to workplace bullying. 
In 2015 the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), convened a task force to explore the reasons why harassment continued to be such a huge issue in the American workplace nearly 30 years after harassment was ruled to be a form of discrimination by the Supreme Court. After months of testimony from experts from human resource departments, labor unions, law firms, worker organizations, employer organizations and numerous meetings of the 17 members of the task force, the EEOC Commissioners came up with a list of recommendations. One such recommendation was that we all needed to play a role to end harassment. 
Harassment in the workplace will not stop on its own. The ideas noted above (earlier in the report) are helpful, but ultimately, may not be sufficient. It is on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change on their own. (from the Lipnic and Felblum, Report on the Select Task Force on the Study of Workplace Harassment, 2016). 
The conclusions were clear, if we are to eliminate workplace harassment, we will need co-workers and others to move beyond being mere bystanders - or even worse participants in the bullying behaviors – to being upstanders. Those who will stand with the targets of bullying and take steps to end the bully’s behavior. There is a clear need for an increase in this type of bystander intervention. The same need exists for upstanders to end all forms of workplace bullying whether the harassment is based on a protected status or not.
To shift from being a bystander to an upstander, co-workers can take a number of steps. Sometimes it is as simple as being a sounding board for targets of workplace harassment and bullying. Allowing targets to vent and work through their issues. However, there are also other steps an upstander can take. The upstander may assist the target of the bullying or harassment in filing a complaint against the bully. The upstander may intervene on the targets behalf when they see the bullying occur, by changing the topic of the conversation or interaction with the bully or deflecting the bully’s attention away from the target. The upstander, may stand as a witness for the target of bullying if a complaint is filed. Of critical importance, the upstander must make sure to never fuel the bullying behavior or doubt the target in terms of their experiences or the damage to their psyche. According to the EEOC STF report, Green Dot, a bystander training organization suggests that upstanders can help to confront the bully and ask them to cease their behavior, can distract the bully and remove the target from the situation and can help report the behavior to someone with authority to address the bully. The EEOC also suggests there is a need for upstander training in workplaces. Upstanders can and should be proactive and request such training.
Union leaders and even co-worker union members should be upstanders and advocates for targets of workplace bullying. While another blog will discuss specific things union leaders can and should do to address workplace bullying, a few of these things should include – believing the target of workplace bullying, understanding workplace bullying is real and the effects are severe for targets, witnesses, family members and organizations, understand bullying is a violation of the basic human rights of the target and stand up for the targets of bullying by engaging in both formal resolution processes (the grievance process) as well as other forms of concerted activity.
Being an upstander can be difficult and scary. While there is a clear need for greater protections for upstanders, it is important to understand the protections that exist. When upstanders, stand up for the civil rights of targets of employees, or when they engage in upstander behavior as a form of concerted activity, there are legal protections for these actions. When bullying behavior might be a violation of the Civil Rights Act, the ADA, ADEA or state human rights laws (i.e. status-based harassment), upstanders are protected against retaliation. Standing up for the targets of such harassment is a protected activity under the Civil Rights Act and other Equal Employment Opportunity (EEO) laws. Retaliation against someone engaged in such an activity is unlawful. There are three elements to a claim of unlawful retaliation:
1. There was a protected activity,
2. There was an adverse employment action,
3. But for the protected activity the adverse action would not have occurred.
The key here is that reasonable behaviors in standing up for a target of workplace harassment are all protected activities. From assisting in the filing of a claim, to interceding and asking the bully to stop, to being a witness, to reporting the bully’s behavior - all of these are protected activities. If the upstander receives any form of adverse employment action that would having a chilling effect in terms of engaging in such protected activities, then the this would be unlawful retaliation. The underlying behaviors do not have to be found to be harassment or discrimination for the upstander behavior to be protected. As long as there is a good faith belief that unlawful harassment or discrimination has occurred, the act of standing against these behaviors is a protected activity. 
Upstanders also are protected when the actions they take are a form of concerted activity – in other words working with or for the target or other co-workers to improve working conditions. For workers who are protected under the National Labor Relations Act (i.e. have the right to form a union under this law), such concerted activity is a protected activity. Again, any adverse action for engaging in such activity would be a form of retaliation. Where public sector workers (i.e. K-12 teachers) are protected by state collective bargaining laws, these concerted activities would have a similar level of legal protections. If an employer were to take or allow adverse actions in response to the protected, concerted activity the employer would be committing an unfair labor practice under these laws and both the upstander and the target would have legal recourse. 
Being an upstander can be scary. However, if we are ever to assure dignity in the workplace for all teachers and all workers, we need bystanders to become upstanders. We must rely upon each other to stand up against the bullies in our workplaces. To demand that bullies cease their behaviors, to provide safe places for targets of the behaviors, and to demand that employers take steps to remove bullies from our places of work. Upstander are not always going to be protected, but if we stand together, utilize the protections that exist and demand our union leaders to protect targets and upstanders, we can all take steps to eliminate bullying from our workplaces. 
Examples of Upstander Behavior
Listening to the target, so that they can share their experiences
Asking the target if they are OK and letting them know you found the behavior by the 
bully/harasser to be inappropriate. Ask them if they would be comfortable if you intervened - 
spoke to the harasser, helped the target to file a claim with the HR department, etc. 
Distracting the bully by changing the conversation, to take their attention away from the target. 
This simply gives the target an escape from the ongoing bullying. After this refer to #2 above. 
Confronting the harasser/bully - let them know their behavior is unacceptable and that it needs 
to stop and that you will stand with the target. 
Helping the target to file a formal report and acting as a witness on behalf of the target.
Examples of Protected Activity: Like most legal terms, protected activity can vary from case to case. However, the general rule is that any type of reasonable participation in a good faith claim of potential harassment is protected. This includes all of the above upstander behaviors. It also includes:
  1. Filing a formal complaint of harassment or retaliation
  1. Filing an informal complaint of harassment or retaliation
  2. Acting as an advocate for a co-worker during an investigation of a complaint
  3. Sharing information about a complaint of harassment for mutual aid or protection (i.e. a complainant informing co-workers or their union rep that they are concerned about the claim, potential retaliation, or ongoing harassment).
Examples of Adverse Action - Retaliation comes in many forms and whether those forms fit into the legal definition will often be a question for the trier of fact (i.e. jury or judge). However, the following are examples of retaliatory behaviors that do occur and that have been found to be an adverse action in some instances:
  1. Any type of formal adverse job effect is almost always going to be an adverse action - firing, demoting, changing assignments, denying a promotion or raise, cutting pay, cutting benefits, disciplinary action
  2. Intensification of supervision - micromanaging, increased demands for production records (i.e. lesson plans), intensification of performance reviews or classroom visits
  3. Applying different performance standards to those who have engaged in a protected activity versus those who have not
  4. Changes in working conditions - reassignment to a different classroom, changing planning periods, assignment of extra work, taking away meaningful work, reassigning favorite classes to someone else
  5. Ostracizing - in several cases giving an individual who has participated in protected activity the cold shoulder or ostracizing them from co-workers has been found to be a form of adverse action that had enough of a chilling effect to be retaliation.

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