Document Type

Article

Publication Date

2009

Abstract

This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the workplace as an extension of the schoolyard, then, why shouldn’t we presume that these girls grow up, in at least substantial numbers, to become women who will, after being bullied, shrink back from future opportunities to with or be mentored by influential people? These girls are likely to become women who may very well decide that the quiet erosion of their dignity over time is not a viable use of their time, and they will ultimately self-select out of high stakes positions or opportunities, flee employment periodically in response to bullying, and may ultimately winnow themselves out of the workplace entirely. This Article adds a new dimension to the groups’ entreaties by viewing workplace bullying through the lens of gender discrimination, albeit perhaps unwitting gender discrimination. It explores the disparate impact doctrine of liability and examines how its rationale, ideological underpinnings, framework, and viability as a vehicle might look against the backdrop of workplace bullying. The problems that this presents, however, are intractable because the precise nature of bullying, precisely how it affects one person versus another, and how victims are supposed to self-identify are all difficult to pin down. Ultimately, the best vehicle for redressing this aspect of workplace bullying remains somewhat elusive. In addition to contemplating possible uses of Title VII, this Article examines proposed state statutes, and posits the possible creation of a federal agency to deal with the problem in a manner that may not implicate a private right of action. It is only through increased awareness and renewed discussion of all of the discriminatory ramifications of bullying, that this last bastion of legally protected workplace abuse, which typically occurs behind closed doors and whose effects are too often obscured, will be stopped.

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