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abusers, victims, bystanders
This page considers questions about bullying in offline
and online environments.
It covers -
introduction
What is bullying? Is it occurring in a place near you,
or to someone that you know? Is it, indeed, something
that you perpetrate or of which you are an accomplice
(whether through fear, appetite, indifference or simple
lack of imagination)?
The preceding pages of this note suggested that bullying
is a common, although often stigmatised or unacknowledged,
part of many social relationships – discernible
in the workplace, during education, in family life and
in environments such as amateur team sports. It is just
as apparent in courts and legal chambers, university faculty
staff rooms and police squad cars as it is on the factory
production line or the sharp end of a primary school playground.
A theme throughout this note is that characterisations
of bullying vary. In making sense of bullying it is important
to recognise that some perpetrators and targets (aka victims)
do not articulate what is taking place as bullying. Law’s
recognition of bullying and remedies for bullying vary.
That is partly because some behaviour is considered to
be acceptable or trivial. It is partly because some activity
is addressed through a range of statute and common law
(eg as harassment under discrimination statutes or as
assault and theft under the criminal code), discussed
in more detail later in this note.
That variation may reflect an emphasis on outcomes, rather
than activity. It is also because people experience bullying
in different ways. Some laugh it off, others are stricken.
Accounts thus encompass nausea, a curdling of the spirit,
amusement, terror, a blow to the heart, a burden that
is wearying but must be endured. Not all bullying lasts
or disfigures. Some leaves a permanent scar, including
scars that an apprentice chef may or may not consider
to be acceptable as the price of becoming a future Gordon
Ramsay.
On occasion what is tagged as bullying may be what the
most devout human rights or anti-discrimination advocate
would regard as appropriate school or workplace discipline.
That is because growing social consciousness of the diversity
and seriousness of bullying – partly fostered by
media coverage of litigation and by a proliferation of
'stop bullying' sites and self-help texts – has
led some people to appropriate the language for their
own 'culture of complaint', an appropriation that leads
some critics to say "toughen up, princess" and
others to note that such self-indulgence denies the true
severity of the suffering experienced by some targets
and their families or associates.
Bullying is diverse. It can involve being lowered head-first
into a toilet bowl, pushed off a bus, punched in the nose
or relieved of pocket-money and lunch. If you are an apprentice
it can be as mundane as always having to do the cleaning
up, as archaic as homosocial 'scragging' or as dangerous
as being doused with inflammable liquid or locked in a
porta-loo that is then set on fire. Bullying by senior
lawyers has included public tirades or recurrent sending
of pornographic email and unwanted touching. Bullying
in government agencies has ranged from executives exposing
themselves and demanding sexual favours through to setting
impossible work targets or threatening to terminate a
subordinate’s employment. It can be as subtle and
painful as simply excluding a colleague from workplace
discussions.
Bullying of colleagues and subordinates predates the web,
the steam engine and the printing press. It is evident
in pharaonic Egypt and in classical Rome. Robert Darnton's
The Great Cat Massacre (New York: Basic Books
1984) describes angry French apprentices on the loose
in the 1730s. Philip Leon's Bullies and Cowards: The
West Point Hazing Scandal, 1898-1901 (Westport: Greenwood
Press 2000) considers boys in grey. George Orwell's Down
and Out in Paris and London (1933) features misery
in the service industries that is echoed in White
Slave: The Godfather of Modern Cooking (London: Orion
2006) by Marco White and Kitchen Confidential (New
York: HarperCollins 2001) by Anthony Bourdain. Laments
about the bastardry of managerial bullies on the production
line in 1920s Detroit are echoed in accounts of what it’s
like to be a netslave in a large callcentre.
In contemporary society it is evident in all types of
organisations, including police and military forces, universities,
religious orders, philanthropic and advocacy bodies, government
agencies and businesses.
It may centre on recruits - people who are younger, less
experienced, have a lower status and are less likely to
complain (or merely be heard if they complain). It may
instead involve the 'boss from hell' or what one of our
contacts described as the "cow in the next cubicle",
with bullying directed at peers rather than subordinates,
people with experience rather than novices. It may be
downwards (supervisers being horrid to subordinates) or
upwards (the ostensibly supervised mistreating people
higher up the institutional food chain, sometimes with
support from the target’s own superviser). Some
bullies - and bystanders - have sought to justify themselves
by claiming that the target 'had attitude', an excuse
dismissed by the father of one victim who stated that
of course his son had an attitude problem after three
years of physical injury and threats on/off school premises.
Misbehaviour in workplaces may be ongoing or may be generational,
with 'juniors' undergoing ill-treatment as part of initiation
ceremonies and training, often going on to inflict the
same rite of passage on the next cohort of recruits. It
may involve a group or targeting of an isolated individual.
Many organisations have recognised the undesirability
of bullying, on the basis of -
- disrespect
for human rights
- breach
of equal opportunity, workplace safety, crimes and other
legislation
- exposure
to litigation regarding physical and psychological injury
- potential
erosion of a corporate profile through negative publicity
- the
waste of resources implicit in not using people to their
full potential (and in addressing litigation, resignation
or other responses by those who have been bullied).
It
is clear that some organisations, including bodies in
Australia that espouse a commitment to best practice regarding
human resource management and human rights, have articulated
antibullying principles and protocols but have failed
to effectively implement such policies.
harassment and violence
Bullying does not necessarily involve physical assault
(eg punching, stabbing, unauthorised removal of clothing),
theft or destruction and damage to property. It may be
purely verbal, including threats of violence and denigration
that is specific to the target or to a group of people.
It might be 'silent' bullying, ranging from physically
isolating the target - in one instance with her face to
the wall to "toughen her up" - to loading the
person with impossible tasks or deliberately hiding files
needed by that target.
Moira Rayner commented that bullying
can include sexual harassment -
This
is not a feminist construct: sexual harassment is a
particularly pernicious form of bullying, one with a
sexual element - repeated or gross acts or words of
a sexual nature that are not welcome nor invited, which
a reasonable person would expect to have the effect
they do - to intimidate, insult or humiliate the person
subjected to them. It is bullying: the misuse of relative
power to introduce a sexual element, in a frightening
or shameful way. Because it is specifically prohibited
under equal opportunity laws, and the courts have sheeted
vicarious liability home for it, managers - especially
those with US experience - are starting to count the
cost of not preventing bullying.
Bullying
- violent or otherwise - is no respector of gender. Case
law demonstrates that female adults are known to bully
female and male colleagues, just like male bullies. One
example is David Brown v Macedon Ranges Shire Council
- [2008] AIRC 117 (27 June 2008) here.
Female children have proved adept at bullying each other.
injury
Many responses to bullying - and the scale of damages
or penalties where litigation is successful - centre on
injury to the target (and to associates) rather than on
the activity that resulted in the action. In responding
to bullying by children most litigation appears to be
directed at custodians, rather than perpetrators - both
because schools often have deeper pockets and because
courts are reluctant to punish minors.
That injury, as highlighted later in this note, may be
purely physical, with incidents in which people have been
burnt, stabbed, scalped, suffered broken limbs or eye
damage, experienced dermatological problems when painted
or otherwise exposed to paint and other substances.
For many targets the injury is psychological, with people
experiencing difficulty relating to their peers, having
profound ongoing depression or anxiety states and problems
with concentration. Some withdraw from school because
of bullying, or cease to perform at school, with a resultant
loss of future employment prospects and income. Some are
bullied and incapacitated at work, also suffering loss
of prospects ... a loss recognised by Australian courts
in some damages awards.
Although Australian law arguably gives little recognition
to the suffering of a target's associates (in particular
family) it is important to acknowledge that the people
around a target also suffer pain, stress, inconvenient
and cost (eg time and money spent dealing with a distressed
kid, medical and legal consultations, visits to teachers
and school administrators).
legal frameworks
Legal frameworks regarding bullying vary considerably
in terms of what is articulated and what is applied.
Broadly, there is international agreement that bullying
is 'a bad thing'. There is however disagreement about
what constitutes bullying, with often strongly different
views between cultures and within communities (for example
within Australia) about what is acceptable and what requires
action.
That disagreement reflects differing expectations about
the nature of childhood, individual responsibility and
industrial discipline. Some observers for example comment
that fisticuffs and petty theft in the playground is simply
an unpleasant but inevitable fact of life, to be endured
rather than litigated. Other observers have associated
anti-bullying measures with jurisprudence regarding human
flourishing and anti-discrimination.
Disagreement also reflects differing perspectives on the
conceptualisation of injury and the role of the state
in addressing harm. Australia
and similar legal systems have traditionally valorised
property offences and physical injury, with law thus potentially
providing remedies where a child was hospitalised after
an altercation with a peer or an apprentice was killed
or maimed through a workplace initiation. Courts have
slowly come to recognise the significance of psychological
hurt for the target of bullying and more broadly for society
as a whole.
That recognition has occurred in tandem with the emergence
and elaboration of a coherent body of discrimination
law, which acknowledges and respects 'difference' and
which for example seeks to minimise racial, religious
and sexual vilification.
The following pages illustrate the contention that there
is no comprehensive statutory coverage of bullying in
Australia. The Australian legal framework does not derive
from a specific international agreement about bullying
(although action can be referenced to several global human
rights conventions). There is no over-arching statute
at the national or state/territory level and no specific
reference to bullying in the national Constitution (which
as discussed elsewhere
is very reticent in the identification of human rights).
Bullying instead is addressed through a mix
of statute and common law that encompasses injury (aka
tort), industrial relations and workplace safety, crimes
and discrimination statutes and case law. That law on
occasion provides sanctions directed at the perpetrators
of bullying (albeit with significant allowance for the
age of the bully). It also provides sanctions against
individuals and institutions who have failed to meet their
'duty of care', including employers, teachers and educational
institutions who were in a position to prevent bullying
but failed to do so. Action against those bystanders is
significant because they often have deeper pockets than
the perpetrators and because they are in a position to
influence community expectations through for example codes
of practice that cover all schools within a particular
education department.
In practice Australian law does not aspire to prevent
or penalise all nastiness - whether in the schoolyard,
on a child's mobile phone and personal computer, in a
factory or in the executive suite of a major corporation.
It - along with society - makes major allowances for what
happens in the Australian Defence Forces and in the course
of 'normal business practice'. Those allowances may of
course change, consistent with the way that social and
legal expectations about gendered and racial or religious
discrimination have changed over the past fifty years.
In practice many targets and their families find that
justice is expensive, both in terms of legal fees and
in the time or stress associated with litigation. There
have been a handful of substantial payments to compensate
targets who have suffered physical and/or psychological
injury. However, the costs of taking offenders to court
are often prohibitive, particularly when measured against
the paltry nature of some damages wards and the reluctance
of institutions to acknowledge guilt or remorse.
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