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

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Dealing with High Conflict People

Bill Eddy, on his informative blog, Mediate.com, which is geared toward professional mediators, says High Conflict People (HCP) often act as a result of a life-long mistaken assessment of danger.  He gives the following sage advice for dealing with HCP:

1) Reduce their Mistaken Assessment of Danger:  Try not to be emotionally threatening.  Make an effort to reduce those fears by the way you interact with the person.

  • With a Borderline HCP, try to maintain a moderate, even-tempered manner that’s not too close and not too rejecting (avoid abandonment).
  • With a Narcissistic HCP, try to avoid insults and instead find things you can respect about the person (avoid treating them as inferior).
  • With an Antisocial HCP, be cautious about believing their many stories of being victimized by others, but avoid trying to dominate them in verbal interactions.
  • With Histrionic HCPs, try to pay brief attention to their dramatic stories, and then gently focus on a task or a topic you can be interested in, and then end the conversation by explaining you have to leave (rather than seeming to belittle them).
  • With Paranoid HCPs, don’t try to convince them of your trustworthiness – just be matter-of-fact and focus on what the rules are and why you have to follow them (avoid seeming suspicious of the person and avoid focusing on their fears).

2) Set Limits on Behavior that’s Aggressively Defensive:

Of course, bad behavior needs to be stopped. But the most effective way to do this is to show empathy and concern for the person … AND explain the rules or reasons the specific behavior needs to be stopped (try not to make it personal) AND what the consequences are if it continues. You can express regret that you have to address this behavior, but at the same time explain how you want to help the person and how other behaviors will be more effective at getting them what they want.

The key here is that you want to help the person accomplish the goal (being respected, not being ignored, etc.) that was underlying the bad behavior. You want to help them address the underlying concern. For example, if an employee sent out a nasty email to others in the department, you discuss the consequence for doing that. But also discuss what the employee was trying to accomplish and a better way to do that. It may be that the employee felt disrespected and therefore reacted with disrespect for others. You can explain that a better way would be to simply point out available ways to be treated with respect that don’t involved treating others with disrespect.

3) Avoid Giving Negative Feedback:

It is automatic for us to respond with negative feedback to bad behavior. With the ordinary co-worker, neighbor, or family member, negative feedback may be helpful or at least neutral. However, with HCPs, negative feedback is taken extremely personally and feeds their Mistaken Assessment of Danger – which triggers their bad behavior in an effort to defend themselves against the “danger” – which is more about personality-based fears than it is about anything in the present. Of course, you can’t point this out to the person or you will get even more bad behavior in their defensive response. Instead, focus on reducing emotional threats and on matter-of-factly setting limits on the behavior. Regardless of how severe the consequences may be for the “bad” behavior, communicate that you want to help the person. If you can demonstrate a desire to help through your own attitude and behavior, it often makes a huge, positive difference to an HCP.

(November 2010)

Manitoba, Canada, Protects Against Workplace Harassment

Taken from 10/21/10 article in  Winnipeg Free Press, Manitoba, Canada:

The province of Manitoba, Canada, has joined several other Canadian provinces to adopt  new measures to protect against psychological harassment in the workplace, labour and immigration minister Jennifer Howard announced.

Changes to the Workplace, Safety and Health Regulation will add new requirements to protect workers from all forms of harassment, including intimidation, bullying and humiliation.

“Manitoba now joins other provinces such as Ontario, Saskatchewan and Quebec in requiring employers to provide protection from such harassment,” Howard said in a provincial government release. “This builds on other measures that protect workers from harassment based on age, race or gender and ensure that workplaces are respectful and safe for everyone.”

Employers will be required to put in place measures to prevent such harassment and address it if it occurs. The province will help develop and implement policies and educate workers and employers about their responsibilities to ensure a respectful and healthy workplace.

A press release detailing Howard’s announcement notes that normal and reasonable management actions, including discipline, are not defined as psychological harassment.

Howard also announced technical changes to workplace safety regulations in response to a recommendation made following the inquest into the 2000 death of a worker in a furnace explosion at Hudson Bay Mining and Smelting in Flin Flon.

Amendments will provide clear direction to employers and workers regarding the steps necessary to eliminate workplace hazards, strengthen requirements for use of personal safety equipment and reflect updated safety standards.

Impact of Job Stress on Health

 There is  OVERWHELMING research that workplace bullying can be devastating to one’s health, both emotional and physical. PGB
 

Job Stress and Health

Excerpt from a publication of the Center for the Promotion of Health in the New England Workplace:

Stress sets off an alarm in the brain, which responds by preparing the body for defensive action. The nervous system is aroused and hormones are released to sharpen the senses, quicken the pulse, deepen respiration, and tense the muscles. This response (sometimes called the fight or flight response) is important because it helps us defend against threatening situations. The response is preprogrammed biologically. Everyone responds in much the same way, regardless of whether the stressful situation is at work or home.

Short-lived or infrequent episodes of stress pose little risk. But when stressful situations go unresolved, the body is kept in a constant state of activation, which increases the rate of wear and tear to biological systems. Ultimately, fatigue or damage results, and the ability of the body to repair and defend itself can become seriously compromised. As a result, the risk of injury or disease escalates.

In the past 20 years, many studies have looked at the relationship between job stress and a variety of ailments. Mood and sleep disturbances, upset stomach and headache, and disturbed relationships with family and friends are examples of stress-related problems that are quick to develop and are commonly seen in these studies. These early signs of job stress are usually easy to recognize. But the effects of job stress on chronic diseases are more difficult to see because chronic diseases take a long time to develop and can be influenced by many factors other than stress. Nonetheless, evidence is rapidly accumulating to suggest that stress plays an important role in several types of chronic health problems-especially cardiovascular disease, musculoskeletal disorders, and psychological disorders.

Health care expenditures are nearly 50% greater for workers who report high levels of stress.

Journal of Occupational and Environmental Medicine

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How does job stress contribute to cardiovascular disease, and what can be done to intervene?

 

Cardiovascular diseases (CVD) are the leading cause of death in the United States.

Considerable evidence has demonstrated that occupational stress contributes to CVD morbidity and mortality. It is estimated that up to 23 percent of heart disease related deaths per year could be prevented if the levels of job strain in the most stressful occupations were reduced to average levels seen in other occupations …

Job stress results from the interaction of the worker and the working conditions. Specific workplace features of concern include highly repetitive, monotonous tasks, excessive job demands and time pressure, racial or sexual discrimination; management style, interpersonal relationships, work roles, job insecurity, and environmental exposures such as constant background noise, or heat. One very widely used definition of stressful work is the combination of high demands with little or no leeway for decision-making about the job (also referred to as “high demand/low control” or “job strain”). A high demand with insufficient rewards (known as
“effort/reward imbalance”) has also been highlighted as problematic.

Evidence supporting the multiple mechanisms by which job stress contributes to cardiovascular diseases (and other chronic health conditions) comes from a vast body of international scientific literature that includes epidemiologic studies, patho-physiological studies of animals and humans, and behavioral studies. Stressful conditions on the job can result in at least three main mechanisms or pathways:

1. Changes in physiological processes that increase the risk for CVD—high cholesterol, high blood pressure, high blood sugar, weakened immune response, high cortisol, and changes in appetite and digestive patterns.

2. Changes in behavior that increase the risk for CVD—low physical activity levels, excessive coffee consumption, smoking, poor dietary habits.

3. Development of mental health conditions (anxiety and depression) that independently increases the risk for a range of chronic health conditions, including CVD (obesity, stroke, atherosclerosis, arrhythmias, myocardial infarction, etc.).

… evidence from intervention research shows clear benefits for a “systems” approach that emphasizes primary prevention, and that combines approaches for improving working conditions with approaches for managing occupational stress-related illnesses.  Examples of primary prevention approaches include clarifying worker roles, increasing worker decision making opportunities, improving worker management communication, ensuring a respectful work environment, and increasing social interaction between workers. Examples of managing occupational stress-related illness include training on stress management techniques, providing space for exercise and medication, and providing access to employee assistance programs …

Authors: Suzanne Nobrega, M.S., and Manuel Cifuentes, M.D, Sc.D., University of MA Lowell

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STUDY: BAD MANAGERS POTENTIALLY LETHAL

In a groundbreaking 2008 study, Swedish researchers, led by Anna Nyberg at the Stress Institute in Stockholm, studied more than 3,100 men over a 10 year period in typical work settings. The researchers reported in the Journal of Occupational and Environmental Medicine that employees who had managers who were incompetent, inconsiderate, secretive and uncommunicative were 60 percent more likely to suffered a heart attack or other life-threatening cardiac condition. Employees who worked with “good” leaders were 40 percent less likely to suffer heart problems.

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