Workplace Anti-Bullying Laws Inevitable …
January 24, 2011 1 Comment
Here are excerpts from a Jan. 21, 2011 article in The New York Law Journal by two attorneys at a major law firm that represents management and employers, warning that it is just a question of time before a state passes a law providing a right of civil redress to workers who are victims of workplace bullying.
Note: this article presents a somewhat alarmist view of what the authors concede is the inevitable passage of legislation to combat workplace abuse. The authors trivialize the current problem, focusing on co-worker spats and hypersensitive employees while ignoring the devastating impact of workplace bullying on targets, their families and the employers. The authors’ interpretation of case law is unduly negative and slanted. And the authors fail to present an accurate picture of the current costs of workplace abuse on employers and society.
(Maybe next time The New York Law Journal will present a more balanced view of this important issue!)
- PGB
Office Bully Takes One on the Nose: Developing Law on Workplace Abuse
by Jason Habinsky and Christine M. Fitzgerald
For years the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim’s status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.
Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”
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Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII’s reach is narrow. Title VII prohibits employment discrimination based on an individual’s race, sex, color, religion, or national origin.
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Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying.
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Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge.
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Therefore, it appears that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB (Healthy Workplace Bill) will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute others will shortly follow.
About pgbarnes
“Workplace violence is any act against an employee that creates a hostile work environment and negatively affects the employee either physically or psychologically. Bullying is a non-homicidal form of violence and a systematic campaign that jeopardizes your health, your career, your family and the job you once loved. And because it is violent, emotional and physical harm results”. (www.workplacebullying.org)
With that said I would like to inform the community about the hostile work environment that has been created and tolerated at a local health care facility in southern New Hampshire. To date I know of 9 employees that have been subjected to some form of repeated harassing, malicious, cruel and humiliating attempts to undermine them by their management all within the same department. Having personally worked with 7 of these wonderful people I can attest to their character, professionalism, skill, loyalty and genuine care for the people in the community. An employee was terminated after 38 years of excellent service to this institution. Prior to her being terminated she was emotionally tormented for months. She would be called into meetings and yelled at, lied about and threatened with termination. She was humiliated and tormented by words, intonations attacks on her character even though her work performance in the past was great. Another employee from the same department was terminated last week. I was terminated 2 1/2 years ago after 28 years of employment at this facility. Like everyone else my evaluation were great, coworkers enjoyed working with me and my patients appreciated all that I did for them. I received a large pay raise 5 months before the torment began because the management said they appreciated the years of dedication, professionalism and ability to be a team player.
What we all have in common is the fact that we were subjected to an infliction of emotional distress and psychological harassment over a period of time resulting in mental and physical distress. We were all subjected to behavior from the manager that was offensive and threatening. By his words, intonations and actions he created an environment that was hostile and offensive.
Sadly the administration including Human Resources were aware of the hostile work environment created by the manager and other leaders in the same department. We would go to the Vice President of the HR department and beg for the bullying to stop. We pleaded to know what we were doing wrong but vague answers were given, untruths were stated without examples and not one accusation was followed up with any form of investigation. The administration failed to take measures to prevent and abate the problem. We are just sent back to the bully for “conflict resolution”. Stopping violence requires more than mere “conflict resolution”.
Workplace violence is an occupational and safety health hazard. I would be interested in knowing the cost of the mental and physical ill health that this stress has caused on not only the abused employee but to all the others that witnessed the abuse and were too afraid for their jobs to say anything.
There are presently no laws that can safeguard such behavior. Hopefully with public awareness, a new administration and claims of abuse causing medical malpractice to soar due to bullying employers and patient injury we can say that bullying in the workplace is wrong financially and morally. It shouldn’t hurt to go to work.
Thank you.