Retain Toxic Employees at Your Own Risk!

Toxic Employees and Bullies put their employers at risk

Ignoring abusive employees doesn’t pay. I am amazed that while abuse and intimidation goes on under their noses, senior leadership has no idea. Even when one or two employees speak up leadership is vulnerable to arguments that the complainers are fussy, picky, or over-emotional. No senior leader wants to think that abusive things go on within their various business units. At the same time, the company may spend time and money on handbooks and harassment prevention programs never really seeing the more subtle forms of negative behavior that cause long-term damage and can be interpreted as unlawful.

What toxic employees and bullies do

It is helpful to review the tactics that toxic employees and bullies use to reward their “friends” and punish their “enemies.” Toxic employees are motivated by personal gain and they engage in a number of abusive tactics to help them control and manipulate others. Let’s review some tactics. 

Negative contracting is an agreement to keep secrets, look the other way, do something harmful, or spread a rumor about someone else. Contracts are typically a secret agreement between the toxic employee and others with a goal of avoiding consequences or reducing someone’s power.

Emotional manipulation is when a coworker is manipulated into questioning his/her judgment or instincts and controlled to believe the story spun by the toxic employee. Often the appeal is to the target’s sense of responsibility for the feelings of others. Clever manipulators can make anyone feel responsible for what’s gone wrong.

Blaming the victim is using clever manipulation to exploit victim mistakes and attack their credibility. This is done in a manner that shifts focus away from whatever the victim was trying to raise for management attention and onto the victim’s “misdeeds.” In some workplaces employees give up trying to get management’s attention because futility has been demonstrated historically.

Marginalization is the process of ostracizing targets, giving them the silent treatment or withholding information as a way to demonstrate power over others or as punishment for a perceived offense. Depending upon how much the targeted employees want to be liked at work, this can be a very powerful deterrent. These tactics seem mean and inappropriate and clearly they are doing nothing to further company goals. Let me show you further, how they often translate into lawsuits and expensive settlements.

Poor supervision, increased inconsistency

In a general sense, abusive activities are an indication of poor management ethics, training and oversight. Supervisory staff are supposed to act as your emissaries. They are supposed to help you move the company forward by delegating duties and holding staff accountable in a fair and equitable manner. In a legal sense, they are company “agents” implementing company procedures/policies and speaking for the company.

If you have good policies and well-trained managers, policies decisions are more likely to be sound and fairly applied. The best policies in the world, however, can be neutralized through inept or inattentive management.  Poor management increases the chances policy application will be unfair or that policies will be ignored all together. This in turn, creates inevitable employee relations problems.

Risks of legal action by victimized employees and others

Here are some more specific ways that a toxic employee or bully’s behavior might lead more directly to the threat of an employee lawsuit.

  •      Creating a hostile environment

It isn’t hard to imagine the overall negative environment resulting when one controlling employee is manipulating and marginalizing people he/she considers a threat. Once a hostile environment is established, it may disproportionately affect protected employees. In addition, irritated and abused employees can be motivated by their anger to find a way to make it about race or gender. All they have to do is make a convincing argument to a plaintiff’s attorney that will help them take the first step.

  •      Retaliating against and employee who “calls them out”

Several other blog posts here describe a “go to” tactic of toxic employees when they are faced with feedback from an ethical and well-meaning coworker. Standing up to a well-entrenched and strategic bully usually results in some type of retaliation. It might be silent treatment and marginalization or it might involve reports of poor performance, etc. This activity is problematic when the employee who speaks up is raising a policy, ethics or legal issue and then gets punished for it. This could result from not paying fairly for overtime; uneven compliance with laws or even company policy; other questionable activities. This dynamic increases the risk of a whistle-blower claim.

  •      Selecting an employee in a protected class to bully or punish

There are landmines throughout your employee group if supervisors are inattentive or are neutralized by toxic employees. Supervisors must understand basic protected classes and the best way to avoid trouble is scrupulous attention to fairness and consistency. Here is the long list of groups which, if targeted, are protected by federal law:

  • Race– Civil Rights Act of 1964
  • Color– Civil Rights Act of 1964
  • Religion– Civil Rights Act of 1964
  • National origin– Civil Rights Act of 1964
  • Age(40 and over) – Age Discrimination in Employment Act of 1967
  • Sex– Equal Pay Act of 1963 and Civil Rights Act of 1964
  • Pregnancy– Pregnancy Discrimination Act
  • Disability status – Vocational Rehabilitation and Other Rehabilitation Services of 1973 and Americans with Disabilities Act of 1990
  • Veteran status – Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act

In addition to these federal groups, some states have added “sexual orientation” as a protected class making it illegal to discriminate in employment, housing, etc. based upon sexual orientation. Some states and cities have looked at the obese as potential protected class. This is a fairly long list. A toxic employee who is using marginalization and other control tactics will eventually get to someone who can be seen in one of the classes named above.

  •      Negligent Retention

This is a particular scary legal concept. There isn’t much legal action here but the concept is easy to understand. The idea is that an employer allows ongoing harassment by a supervisor or rank and file employee. If employees who speak up are marginalized; if the roadside is littered with employees who are forced to quit after trying to stand up to a bully and the company is ignorant or does nothing, it’s tempting for victimized employees, especially those who lost their livelihoods, to begin to blame the company for not doing something.

While I think that “negligent retention” is more likely to be claimed when an employee with a discoverable violent background physically harms someone at work, I think the argument might be made when an employee feels a mental and nervous condition began at and is caused by someone who should have been fired long ago. 

That sinking feeling

I have experienced that feeling of dread when correspondence from a plaintiff’s law firm arives in the mail. The first thing to do is begin gathering information about what actually happened to assess your exposure. When you discover that your employee has bullied the complainant you know it may be difficult to defend the claim. Next you may feel forced to negotiate with the attorney or face exposure in a public legal proceeding.

The idea of exposing inept or abusive  management is embarrassing. Settling with a disgruntled ex-employee raises ethical dilemmas as well. If your organization is nonprofit, using public funds to defend inappropriate management practices is questionable at best. If you are for-profit the employee and his/her attorney will assume that you have deeper pockets and are well insured. This makes you a juicy potential target.

Why didn’t we just . . . ?

This post paints a picture of what you are likely to face if you don’t act to control abuse and intimidation within your workplace. Unfortunately, it is difficult to reverse a longstanding negative dynamic. It requires commitment and attention to shifting the culture to a healthier standard. Don’t wait until you’re forced to react to a costly settlement or public opinion in your local community.  Take proactive steps to protect innocent employees and to increase the chances of achieving company goals.

A related article you might find helpful – When and Why Employees Sue

 

(c) BCSPublishing 2015 all rights reserved

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Author: Suzanne Benoit

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