Read the rest of Emily Bazelon's series on cyberbullying.
Would a law like this be workable? Would it give bosses the leeway to operate freely—which surely includes sometimes acting sharp, blunt, and impatient? I talked to a few labor-law professors who were skeptical. "The risk is that everything gets defined as bullying, and that makes the workplace much less productive," said Michael Selmi, a professor at George Washington University Law School. "Courts are worried about the implications of recognizing a tort generally in the workplace, because they imagine a certain amount of authoritarian and even abusive behavior is par for the course," said law professor Catherine Fisk of UC-Irvine "You don't want to open the door to the classic disgruntled-employee suit."
One of the bill's drafters, David Yamada, who directs the New Workplace Institute at Suffolk Law School, said that such concerns remind him of the doubts that greeted the first sexual harassment cases. But Jessica Clarke, a fellow at Columbia Law School who writes on this topic, worries about the implications of appropriating the civil rights framework. "It shifts the focus away from discriminatory behavior in the workplace toward these other sorts of nebulous harms, which there are better ways to deal with then litigation," she said. Yamada acknowledged that bullying could prove more difficult for courts to grapple with. If judges have been "clueless" about sexual harassment suits, he said, workplace bullying could present even more of a challenge for them. "It's hard even for some of us who have been interviewing people for 10 years who claim to have been severely bullied."
Did Genoways act with malice—the bar set even by the bullying advocates—or did he just act clumsily or unfeelingly? And does it make sense to use the bullying framework to look at dysfunctional work environments? One sad irony of this story is that now everyone is out of a job, at least for the time being. After the TV coverage and the blaring headlines, UVA closed the office of the Virginia Quarterly Review, pending the results of the investigation of Morrissey's death, and canceled the journal's winter issue. The university has placed Genoways, McMillen, and Minturn on leave and ended Levinson-LaBrosse's one-year contract. (So much for special treatment for wealthy donor alum.) All of the staff members I talked to sounded in limbo and unhappy. It's hard to tell how much of this unfortunate outcome is the result of VQR's complicated internal strife and how much is the result of the bullying label being applied where it doesn't fit.
Corrections, Sept. 27, 2010: This article originally misspelled Waldo Jaquith's last name. In addition, due to a production error, the first photograph accompanying this article was originally captioned with Kevin Morrissey's name instead of Ted Genoways'.
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