1. Sean P. Callan, Esq. sean.callan@fraternallaw.com (513) 763-6751 www.fraternallaw.com

2. Addressing Bullying on the College Campus October 24, 2013 ACUI

3. What is the Law? How many have experienced/observed bullying on campus?

4. What is the Law? Is it against the law? Yes No Maybe

5. Bullying Aggressive behavior or intentional harm It is carried out repeatedly and over time It occurs with an imbalance of power, real or perceived, between the bully and the victim.

6. CyberBullying The willful and repeated harassment and intimidation of a person through the use of digital technologies.

7. Types of Behavior Direct Bullying Verbal –Insults –Harassment Physical –Assault/battery Emotional –Threats –Extortion Indirect Bullying Behind the Back Bullying Exclusion –Shunning Relational –Telling others to shun Gossip –Spreading rumors –Falsehoods –Assault on reputation

8. What is the Law? Is it against the law? Maybe... Assault Extortion Threatening Harassment Potential Fraud

9. What is the Law? Is it against the law? Maybe... U.S. v. Drew Megan Meier Misdemeanor convictions of CFAA vacated

10. What is the Law? Is it against the law? Maybe... Phoebe Prince Misdemeanor charges lead to probation/community service

11. What is the Law? Is it against the law? Maybe... Dharun Ravi guilty of charges including bias intimidation, invasion of privacy, hindering apprehension and tampering with evidence – 30 days

12. What is the Law? Is it against the law? Civil Liability –Bully –Parents of minor bully? –School (K-12) – Policy? –College/University? –Bystander? –Workplace?

13. In the Workplace…

14. Bullying is the sexual harassment of 20 years ago; everybody knows about it, but nobody wants to admit it.” Lewis L. Maltby President, National Workrights Institute

15. In the Workplace… Business Research Lab study (2002 and 2003) 40% reported being victims of workplace bullying; 59% had observed someone else being bullied at work.

16. In the Workplace… Employment Law Alliance study - 45% of respondents reported they had worked for an abusive boss.

17. Environment Counts! Lack of respect and poor management skills are often a central theme in environments where bullying occurs due to: Authoritarian style management; Failure to address previous incidents; Unrealistic targets or deadlines; Prejudice and discrimination; Personality of colleagues/managers; and Inappropriate performance management systems.

18. In the Workplace… Bullying can range from very obvious behavior to very subtle psychological abuse It includes behavior that intimidates, offends, degrades, or humiliates the employee.

19. In the Workplace… Examples –Physical or verbal abuse; –Yelling, screaming, or offensive language; –Excluding or isolating employees; –Psychological harassment; –Intimidation.

20. In the Workplace… Examples –Deliberately changing work rosters to inconvenience employees; –Undermining work performance by deliberately withholding information vital for effective work performance; –Assigning meaningless tasks unrelated to the job; and –Giving employees impossible jobs;

21. In the Workplace… Strong Management is not Bullying! ‘tough management’ is direct, legitimate feedback and rightly ; it is not workplace bullying! Appropriate ‘tough management’ is direct, legitimate feedback and rightly addresses inadequate job performance; it is not workplace bullying!

22. In the Workplace… Strong Management is not Bullying! (or bullying) ‘tough management’ wrongly, is personally demeaning, humiliating, psychologically damaging and severely hurts productivity! Inappropriate (or bullying) ‘tough management’ wrongly attacks character, is personally demeaning, humiliating, psychologically damaging and severely hurts productivity!

23. Is it against the law?  Race – Civil Rights Act of 1964 and the Civil Rights Act of 1866.  Color – Civil Rights Act of 1964.  Religion - Civil Rights Act of 1964.  National origin - Civil Rights Act of 1964.

24. Is it against the law?  Age (40 and over) Age Discrimination in Employment Act.  Sex – Equal Pay Act and Civil Rights Act of 1964.  Veteran – Vietnam Era Veterans Readjustment Act of 1974.  Disability Vocational Rehabilitation and Other Rehabilitation Services Act of 1973 & American with Disabilities Act of 1990

25. Is it against the law?  Sexual orientation (in some jurisdictions and not in others).  Gender identity (in some jurisdictions and not in others).

26. Is it against the law? There is no specific federal or state anti- bullying legislation. However, employers may be held liable for tolerating bullying in their workplaces even without specific law.

27. Is it against the law? If the offending behavior is pervasive enough to be considered threatening, intimidating or creating an environment full of hostility, then there is potential for a claim of: 1.constructive discharge, 2.intentional infliction of emotional distress or 3.relating the bullying to protected class discrimination.

28. What do I do? D O ’s “Thank You For Coming Forward. The University Takes Its Bullying Policy Seriously.” – Remember, This Isn’t Easy. “Your Complaint Will Be Kept Confidential, To The Extent Possible.” “You Are Protected Against Retaliation. Please Report Any Retaliation to ______”

29. What do I do? D O ’s Continued “Here Is a Copy of our Bullying Policy.” “Who, What, When, Where? – The Basics” “Are There Any Witnesses? Have You Told Anyone Else?” Is There Any Documentation? E-mails?

30. What Don’t I do? D ONT ’ S Guarantee Confidentiality. “That’s terrible! You should take this to ______ immediately!” “Guess” About the Ultimate Resolution.

31. What Don’t I do? D ONT ’ S C ONTINUED (C OMMENTS ) “S/he is a heavy hitter around here…” “That’s just how they do things where s/he comes from.” “I can’t believe s/he’s done it again!”

32. What Don’t I do? D ONT ’ S C ONTINUED “It sounds like he/she was just joking.” “I can’t believe s/he would do something like that!” “I can’t believe that happened. That’s bullying…”

33. Possible Organizational Response? Establish an anti-bullying policy that explains what bullying is and that it is unacceptable behavior. Train managers and all other employees on the policy. Establish processes for reporting, investigating and resolving complaints. Conduct periodic employee attitude surveys to determine if workplace bullying is not being reported.

34. Possible Organizational Response? “M.A.D.” 1.Model Appropriate Behavior 2.Act Immediately When you See or Hear of Inappropriate Conduct 3.Document

35. Model Appropriate Behavior Set Proper Tone for Your Organization - Understand Policies and How They Work - Be Prepared For Common Questions - Can You Handle This Confidentially? - What Will Happen To My Complaint? -Consider Customized Training Programs

36. Act Take Complaint. Investigate? Documents? Confirm Policies. HR/Upper Management

37. Document Create Written Documentation Of A Complaint. Compile Documentation And Provide To Appropriate Personnel. Ensure, In Written Form, That A Complainant Has Reviewed Relevant Policies.

38. What is the Law? Is it against the law? Yes No Maybe

39. Sean P. Callan, Esq. sean.callan@fraternallaw.com (513) 763-6751 www.fraternallaw.com