How Workplace Bullies Exploit the Ethics of Expediency

After months of comments that did little to help her improve her work performance (and absolutely nothing for her self-esteem), Indira was at her wit’s end and turned to me for advice. She told me about her troubled days, not a few of which ended in tears, and the behavior of the boss who provoked them. When she was done, I gave her a sympathetic smile and prepared to administer the bitter dollop of advice I had given many times before.

Yes, I told her, Annalise’s behavior was obnoxious, unprofessional, even occasionally cruel. She was stunting her professional development, undermining the team project, and, insofar as we’re a reflection of the organizations that elevate us, indicting the reputation of the consulting firm. This is to say, Indira had every right to lodge a complaint against Annalise, and yet, before she did so, I told her, she had to first wrestle with the whistleblower’s dilemma, namely that what is right and what is expedient are rarely one and the same.

Annalise’s behavior was certainly not criminal; if it were, the matter might actually have been easier to resolve. Instead, she was callous in her conduct, with bouts of outright mean-spiritedness. In other words, she was a bad boss and something of a bully. Fair enough, I said, but encountering such individuals is not like catching sight of Garbo. Throw a nickel or two in the air at Grand Central during rush hour, and you’ll almost certainly hit one.

Still, it wasn’t primarily the fact that such behavior is not uncommon in the workplace that gave Indira’s conundrum the quality of steel pincers. To escalate the matter to the level of a formal complaint with human resources was to cross a Rubicon of sorts in her relationship with Annalise, and once she had done so, there was no bridge that might take her back across those icy waters. Moreover, given that her behavior, if undoubtedly unpleasant, was by no means extraordinary—every workplace, it seems, has at least one “Annalise”—even if Indira weren’t branded by others a “whiner” for lodging her complaint (or, ironically, someone who was “difficult to work with”), she still faced the possibility that, when all was said and done, for a time at least, Annalise would still be her supervisor.

Yet none of these was the principal factor in Indira’s ultimate decision. Rather, the chief consideration was an inconvenient truth: she needed Annalise. She would soon be applying to business school, and Annalise had supervised her work longer than anyone she had ever known. Not only that, for all of her boss’s nastiness, Indira, whose poker face was first-rate, was actually convinced that Annalise liked her. “She’ll write me a good letter,” she said rather hopelessly.

The assumption was not only decisive for Indira; it proved clairvoyant. She got into her top choice for business school despite Annalise, and because of her.

I thought this was the right decision at the time—and counseled her accordingly—but with the #MeToo Movement and the avalanche of anecdotes involving far more harrowing trade-offs between preserving one’s career and pursuing justice, I find myself returning to the precarious relationship between ethics and expediency and how it shapes, and so often deforms, those who wield power.

The poster boy for the movement—if the poster were conceived by the Marquis de Sade and illustrated by Goya—is Harvey Weinstein, the disgraced movie mogul whose behavior with women was reportedly so preposterous and brutal that, in the closing months of 2017, it sustained more than 30,000 words of reporting between the New York Times and the New Yorker. For all that the coverage did to expose an elaborate apparatus arranged over decades to perpetuate one man’s predations and silence his victims—one, reports suggest, that included sophisticated public-relations campaigns; stringent nondisclosure agreements; an in-house coterie of enablers; and strategic alliances in politics, the press, and across the world of the arts and entertainment—the breathtaking temerity of Weinstein’s alleged conduct, which ran the gamut from sustained boorishness to a slew of allegations of criminal sexual behavior, risked setting a standard for sexual harassment in the workplace so impossibly high it might effectively shield the majority of bad actors. (Well, I never demanded any junior associate join me in the shower!)

Thankfully, the national conversation prompted by #MeToo successfully navigated this ditch. By encouraging women to share their stories, the movement broadened the popular understanding of what actually qualifies as sexual harassment. Today, many Americans now not only appreciate the prevalence of such behavior in professional settings; they have come to see the boss who solicits sexual favors and the one who expects subordinates to indulge misogynist remarks and locker-room banter as two points on the same continuum encompassing the abuse of power.

The reckoning brought about by the #MeToo Movement is certainly overdue. Long regarded as trifling events or even fodder for juvenile humor, examples of sexual harassment in the workplace, so vividly chronicled across so many painful stories, amount to an epidemic that is well deserving of the soul-searching it has prompted and the intense scrutiny it has received. Still, abuses of professional power aren’t limited to salacious matters, and there seems good reason to start a second conversation about injuries that aren’t essentially sexual in nature, especially because the same instinct underlies them: to do whatever one wants to do, whenever one wants it to do it, regardless of the harm that comes to others.

The judiciary system, of all places, provides an excellent case study in Alex Kozinski, who was until recently a judge on the Ninth Circuit Court of Appeals. When I attended Yale Law School in the late 2000s, Kozinski—who had been appointed to a federal appeals court seat by President Ronald Reagan at the tender age of 35—was known as the renegade “feeder” judge who openly flouted the gentleman’s agreement among federal judges to wait to interview students until the fall of their third and final year of law school. “When they complain about the bad apples,” he wrote, alluding to the debate over when and how judges should select clerks, “they’re usually talking about me.”

The impish acknowledgment appears in “Confessions of a Bad Apple,” a 1991 essay, wherein Kozinski defended the wisdom and right of federal judges to pluck clerks from the ranks of elite law schools whenever they please. Getting a jump on his colleagues, and regardless of their sensitivities, Kozinski poached the very best second-year law students he could find, offering them the opportunity not only to work in his chambers but to be fed along to the conservative justices he was intimate with who could afford them the capstone of a Supreme Court clerkship.

If, for an ambitious young law student, there is absolutely nothing better than a clerkship on the high court, the best thing in life, in this instance, was certainly not free. The Pasadena-based judge had a reputation among students at Yale for being something like the Charles Manson of the circuit-court system: crazy, cruel, and requiring cult-like devotion. The hours his clerks kept were gratuitous—“it is widely known that my clerks are on call 24 hours a day,” he wrote in his essay—and the rumor was they were only allowed one weekend off a year. What did they do with all their time? Rewriting, it seems. Kozinski was infamous for endlessly revising the judicial opinions his clerks helped him assemble. “My clerks and I normally go through 20–30 drafts of an opinion,” he acknowledged, and “50 or 60 drafts is not uncommon as I polish and revise.”

Though they weren’t inconsistent with the reputation, neither the inordinate hours, which far outstripped anything required for even a Supreme Court clerk, nor the Sisyphean writing process gave Kozinski his unnerving renown as a courthouse bully. Indeed, he was already infamous for his conduct before anyone was obliged to call him “Honorable.”

During his Senate confirmation in 1985, stories of Kozinksi’s behavior as a civil servant nearly derailed his judicial nomination. As the New York Times reported, testimony and affidavits were provided by half a dozen people who worked with him when he was special counsel for the Merit Systems Protection Board, an executive-branch office charged, ironically, with protecting the rights of federal employees. When Kozinski was an administrator, his coworkers said, his behavior was “cruel,” “humiliating,” and even “sadistic.” John F. Hollingworth, a former administrative director at the Merit Board’s Office of Special Counsel, went so far as to claim, “I cannot recall a more callous disregard for people than Mr. Kozinski exhibited,” citing in his affadavit incidences such as “demanding that a messenger be fired when one piece of correspondence could not be located” and “issuing a notice of farewell to an employee who had cancer and had not yet finalized plans to leave the office.” Kozinski, for his part, ordered Hollingworth to fix office furniture.

Notwithstanding these complaints, nor the report that six of the eight most-senior lawyers quit during his tenure, Kozinski was approved by the Senate, largely along party lines. If the experience of being publicly admonished by members of the Senate had any abiding affect on him—“he lacks judicial temperament, is prone to anger, and is lacking in compassion,” said Carl Levin (Democrat of Michigan)—like heat from a kiln, it appears to have hardened the mold of his behavior. One of his clerks, Heidi Bond, would later describe the cumulative trauma of working under him in a December 2017 blog post: “I began waking from sleep, heart racing, hearing imaginary double beeps summoning me to his office.” Even trivial mistakes, she wrote, “the misplaced comma or misspelled word,” would prompt the invitations, together with a fit. “I do not think a week passed without at least one such outburst; during bad times, they were a daily occurrence.”

Such on-the-record accounts of a judge’s bedside manner are exceedingly rare. Clerks rarely speak out about their experience, in part for reasons of protocol—judicial ethics curtail what they may say about the activities of judges inside their chambers—but also because of the central role these judges play in their personal and professional lives. They are at once parental figures, peerless referees, and lifetime mentors, creating “relationships between law clerks and their judges” that Slate’s Dahlia Lithwick described as “mostly built on worshipful silence.”

If this is true for the average judge, imagine the aura about one such as Kozinski. As someone whose extraordinary reputation among law students was built on precocious achievement, impeccable legal prose, and, above all else, the quid pro quo proposition of a Supreme Court clerkship, for nearly 30 years, the judge had loomed in many impressionable young minds as both token and trigger for the acme of lawful ambition.

Thus the bravery of Heidi Bond is especially unusual, and the occasion is explained by the #MeToo Movement. For beyond the berating and belittling, the writerly indecision and the intense work requirements, Kozinski, it seems, had a flair for sexual indiscretion. The incident Bond recounted on her blog involved the judge sharing pornographic pictures and wantonly probing her opinion of them. However, by the time Kozinski stepped down from a lifetime judicial appointment, shortly after Bond published her blog post, a dozen other accusers had come forth with credible claims against the judge of pinching, groping, and ogling women in addition to making a litany of inappropriate comments.

While such stories never surfaced in the gossip when I was in law school, to be perfectly frank, I was hardly surprised by them. At work, old-fashioned bullies and powerful lechers alike share the same insatiable desire: to reaffirm for themselves and everyone around them their power and professional superiority. On her blog, Bond wrote that when she objected to Kozinski’s instruction to stop reading romance novels on her dinner break, he reminded her that he controlled not only what she read, but virtually every other aspect of her life as well. As Bond herself noted, to do anything other than meekly assent was to risk what the actress Salma Hayek described in the New York Times as the “Machiavellian rage” triggered in Harvey Weinstein whenever he heard the word he hated most: no.

No. A simple, unassuming word, but I can’t think of one more vital or necessary to leading a life with dignity. It is not only impossible to imagine a healthy work environment without its routine employment; practically speaking, the ability to decline a request that is crude, cruel, or manifestly ridiculous seems like a pretty elemental feature of any organizational structure that is not entirely incompetent. And yet, even as we come to grips with the stubborn nature of sexual harassment, we still too often dismiss the casual sadism of senior executives as simply an unavoidable part of being gainfully employed or even a professional rite of passage. “Suck it up” is the advice one most often hears, at least if she seeks to advance.

This is close enough to the advice I’ve given in the past that I now worry about its deeper wisdom. As the #MeToo Movement has demonstrated, the relationship between what is right and what is expedient is not static. It shifts in favor of justice when individuals confront brutal bosses, calling out their offenses and making damn sure they can’t get away with them. True, there will always be a price to raising one’s voice—doing so takes courage, and courage isn’t cheap—but when the price is professional ruin, it indemnifies the bully and forces everyone around him to pay for his bad behavior.

John Paul Rollert is adjunct assistant professor of behavioral science at Chicago Booth.