Search Results for: anemic

The Healthy Workplace Bill is Anemic

The proposed Healthy Workplace Bill (HWB) is touted as model legislation to combat workplace bullying in the United States but is it as healthy as it should be for American workers?

No, says an international expert writing in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010.

“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,

The HWB was drafted by Professor David Yamada of Suffolk University, Boston, MA,  founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.

Ms. Lippel said the HWB contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible psychological or physical harm.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:

“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”

It should also be noted that proof of malice is not a requirement for “hostile workplace” claims under Title VII of the Civil Rights Act, which protects victims who are discriminated on the basis of race, sex, national original, etc.  They need prove malice only if they are seeking the additional remedy of punitive damages.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:

“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”…  requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

It should also be noted here that proving tangible  psychological or physical harm is not required by federal discrimination laws for other victims of a hostile workplace environment.  In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case.  In Harris v. Forklift Systems., the U. S. Supreme Court said the protection of federal law comes into play before the harassing conduct leads to a nervous breakdown.  (See Harris v. Forklift Sys., 510 U.S. 17 (1993))

The Supreme Court also said:  “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.”

Furthermore, the requirement to prove psychological harm would be a burden for targets who don’t have health care coverage,  the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.

Overwhelming research shows that bullying causes  stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease.  Shouldn’t this be taken into account?

Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

There is one other striking problem with the HWB that is not discussed in the special issue.  The HWB places a seemingly arbitrary cap on damages for targets of bullying who did not experience an adverse employment action, such as demotion or dismissal. The cap on emotional distress damages is $25,000 and targets are prohibited from seeking punitive damages. This cap is so low that it is unlikely that the HWB would serve as a deterrent to employers.  And, in a worst case scenario, the family of target driven to suicide by bullying would be able recover barely enough to pay for a decent funeral – all because the target was not demoted or fired. In short, the only damages available to a target of workplace bullying in this situation would be compensatory, i.e. the payment of medical bills.

Namie and Yamada have expressed concern about burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But they fail to explain why this concern wouldn’t apply equally to any other lawsuit involving a hostile work claim, including sexual harassment or race discrimination lawsuits.  Why should targets of workplace bullying be singled out?

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Unwelcome conduct becomes illegal when it is so severe and pervasive that it interferes with the target’s work performance or creates a work atmosphere that is offensive or abusive. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).

The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security. The special issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html

– by Patricia Barnes

*** Note: This article was updated on 2/7/12

[contact-form] [contact-field label=”Name” type=”name” required=”true” /] [contact-field label=”Email” type=”email” required=”true” /] [contact-field label=”Website” type=”url” /] [contact-field label=”Comment” type=”textarea” required=”true” /] [/contact-form]

EEOC: Proof of Psychological Harm Should Not be Required to Show Workplace Harassment

One baffling aspect of the Healthy Workplace Bill (HWB), a model state  law proposed by the Workplace Bullying Institute (WBI), is that it continues to require bullying victims to establish a higher degree of harm than is required under U.S. law.

The HWB was drafted by Suffolk University Law Professor David Yamada and proposed by the WBI  a decade ago for adoption by individual states.  It would address status-blind workplace bullying and cover targets whether or not they are protected under federal discrimination laws. Though no state has yet adopted it, the bill has been considered by more than two dozen states.

Last week, it was again shown that the HWB is oddly out of step with respect to the degree of proof that it requires bullying victims to provide to establish employer liability.

The EEOC released a proposed enforcement guidance addressing unlawful workplace harassment under federal anti-discrimination laws enforced by the agency. The EEOC essentially rejects the HWB requirement that targets of workplace bullying establish “proof of health harm by licensed health or mental health professionals.”

The EEOC’s proposed guidance states that “actionable harassment can be established in the absence of psychological injury, though evidence of psychological harm from the harassment may be relevant to demonstrating a hostile work environment.”  Furthermore, the proposed guidance states the harassing conduct “need not harm the complainant’s work performance” provided the evidence establishes that the harassment was sufficiently severe or pervasive to create a hostile work environment. The EEOC standard reflects long-standing U.S. law established in decisions by the U.S. Supreme Court and federal appeals courts. [Read more…]

Still Far From a National Workplace Bullying Solution

It is an interesting phenomenon that workplace bullying advocates seem to have a hard time working together.

In fact, they don’t, which is one reason why after so many years there is no national solution on the horizon to the problem of workplace bullying.

The Workplace Bullying Institute, chaired by Gary Namie, has been touting a law written by Suffolk University Professor David Yamada since 2002. The so-called Healthy Workplace Bill  (HWB) has been considered by more than 20 states but it has only been passed, in small part, by Tennessee. Unfortunately, Tennessee’s version of the HWB was so unfortunate  that it was promptly disowned by Namie.

Even if the HWB was passed by some states in an unaltered form, it is almost inconceivable that it would be adopted by competitive, pro-business states where workers are the most vulnerable to abuse. And some say it is fortunate that the HWB has fared so poorly, because it offers scant real protection to targets of workplace bullying, especially when compared to anti-workplace bullying laws and legislation passed in other countries.

Nevertheless, the Workplace Bullying Institute has succeeded in bringing attention to the problem of workplace bullying through its state-by-state campaign.

I was part of the formation of the National Workplace Bullying Coalition (NWBC) a couple of years ago.  Some of the group’s members had been put off by Namie, a seemingly gruff and territorial man who has been called a bully himself by a competitor.  Despite this, the NWBC reached out to Namie and Yamada with no success.

From my perspective, it is unfortunate that the NWBC finally settled on a vague mission statement to “work with legislatures at the local, state and federal levels to refine the definition of workplace bullying and implement laws to protect workers’ rights to dignity at work.”  That’s a type of frustrating all things to all people approach that reminds me of the “I’d like to buy the world a coke” commercial for world peace.

Yet, the NWBC has made progress by encouraging the EEOC to study the issue of general workplace harassment. One of the NWBC board members, Professor Jerry Carbo, is a member of an EEOC Select Task Force recently formed by EEOC Commissioner Jenny Yang. The group is expected to issue a report that sheds insight into and offers suggestions to address workplace bullying.  This is an important step.

My area of focus is and always was to achieve a national solution to the problem of workplace bullying.  I believe the answer lies in a combination of health and safety regulations enforced by the Occupational Health and Safety Administration and in a federal law that protects all workers from a hostile workplace environment. I advocated a national solution when I wrote my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace and I still believe it is the only realistic way to protect American workers.

For years, I have received emails every week from good, hard-working Americans who are being viciously bullied on the job and who are suffering severe mental and physical distress. Workplace bullying is a widely acknowledged form of workplace violence. Other industrialized countries took steps years ago – in some cases decades –  to address the problem of workplace bullying. And yet workers in the United States, who have lost so much in recent years, still have virtually no protection, especially if they are poor or middle class.

Maybe it is naive to think we could be more effective if we worked together to demand a national solution? But workers need a real solution and they need it today, not in the distant future.

Time for a National Solution

After a decade, it is appropriate to question whether the state-by-state campaign to pass the so-called Healthy Workplace Bill (HWB) is a realistic solution to the epidemic of workplace bullying in the United States.

This blog suggested in 2011  that it was time to think about options other than the HWB,  which was first proposed a decade ago and has yet be adopted by any of the 20 some states that have considered it. I proposed that the U.S. Secretary of Labor empanel a task force to study the problem and propose new legislation on how to best address the problem of workplace bullying nationally. Since then, I have joined a national coalition, Protect US Workers,  demanding that the Obama Administration formulate a national approach to workplace bullying.

The Vermont Senate in 2011 threw out efforts to pass the HWB in that state and voted to create a task force to determine the best way to provide relief and redress for state residents suffering in abusive work environments.  VT’s  Senate Bill 52 suggested looking at different models to remedy workplace bullying, including:

  • Create a private right of action that would include the recovery of damages (like the HWB).
  • Create a mechanism for injunctive relief similar to those relating to stalking, hate crimes, or relief-from-abuse orders.
  • State enforcement similar to the employment discrimination law.
  • State enforcement by the Vermont occupational safety and health administration.

Point/Counterpoint

At that time, Gary Namie, the director of the Workplace Bullying Institute,  issued a defense of the HWB  which the institute has supported since it was drafted by Suffolk University Law Professor David Yamada in 2002.

Namie primarily argues the HWB’s private right of action is best because it is “revenue neutral” and won’t burden states financially.

For the following reasons, I support a different approach:

  •  Proponents of the HWB have been advocating for a decade to pass the HWB in individual states. Twenty states have considered the HWB so far but no state has passed a bill. One state might yet be persuaded to pass a version of the HWB but it could take decades for a significant number of states to do so.  Some extreme pro-business states will never voluntarily pass a workplace anti-bully bill, just as they have fought tooth-and-nail against other workplace protections.
  • The original version of the  HWB was anemic. It contained hurdles that were not found in laws adopted in other industrialized countries (or in other U.S. civil rights laws involving the concept of a hostile work environment). These hurdles included requirements that targets prove malice and psychological injury and a $25,000 cap on damages for targets who are not demoted or fired. Even under a new revised HWB, most targets would find it difficult or impossible to obtain a meaningful remedy.
  • Under the General Duty Clause of the Occupational Health and Safety Act of 1970 (OSH Act), employers are required to provide employees with a safe workplace. Overwhelming research shows that workplace bullying can result in potentially serious mental and physical harm.  The Occupational Safety and Health Administration (OSHA), which administers the OSH act, should protect workers from bullying, just as it protects workers from physical hazards. It’s not a question of passing a new law but enforcing the OSH Act.  (Last year, OSHA adopted a workplace anti-bully policy for its own workers.)
  • Workplace bullying is widely acknowledged to be a form of workplace violence.  Although it is primarily psychological in nature, it can lead to physical violence. It exists on the same spectrum of violence as domestic violence and elder or child abuse, all of which are addressed on a federal and state level.  One of the core functions of society is to protect its vulnerable citizens from violence. The HWB provides a private right of action.  This means that its enforcement mechanism is the embattled target, who after months or decades of bullying may lack the emotional, physical, and financial resources to hire an attorney and to embark on lengthy litigation with an uncertain outcome.  What happens if a target cannot or will not act? The bully moves on to his or her next target.
  • A workplace bully is not always an individual. Employers  use “strategic harassment” to get rid of workers who demand their rights and to cheat workers out of their legal rights – such as unemployment compensation, worker’s compensation, and/or fair pay and benefits.  A target suing a single employer cannot solve this problem. The only practical solution lies with the federal government.

 Other arguments advanced by Namie lack persuasiveness.

An enforcement action by a federal agency would be covered by the press, just like a private lawsuit.

And, yes, the  monetary penalty for state and federal OSH Act violations is insufficient but this can and should be addressed.   OSHA citations also trigger other penalties (including possible criminal sanctions) and an expensive investigation and hearing process.  Employers work diligently to avoid OSHA citations.

Namie and Yamada are concerned about the risk of burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But wouldn’t this argument apply equally to any other lawsuit involving a complaint of a hostile work environment, including sexual harassment or race discrimination lawsuits? Where is the evidence to suggest that frivolous lawsuits will be a particular problem with respect to workplace bullying? And why should this be a focus of concern for anti-bully advocates? Isn’t this what the U.S. Chamber of Commerce does?

Vermont’s bill notes that the Vermont office of attorney general’s civil rights unit reports that of the 1,200 to 1,300 requests for assistance it receives each year, a substantial number involve allegations of severe workplace bullying that cannot be addressed by current state or federal law or common law tort claims.

The United States lags behind many other industrialized countries in addressing workplace bullying.  That is shameful.  We owe a debt to Namie and Yamada for significantly helping to raise public awareness about the problem of workplace bullying, and for their extensive work on the issue. However, a solution is long overdue.  It is time to consider other options to protect the one in four American workers who suffer with this insidious health and safety problem.