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.
The proposed EEOC guidance describes its position as a “middle path” that “distinguishes between covering conduct that is merely offensive and requiring that the conduct cause psychological harm.”
If the EEOC’ is taking a middle path then the HWB’s path can be fairly described as an extreme that favors employers by sharply limiting the ability of plaintiffs to obtain damages from employers for severe workplace bullying.
The proposed HWB has been characterized as anemic (for many reasons) for years. A study of workplace anti-bullying efforts internationally concluded in 2010 that “efforts to have legislation adopted in the United States seem to raise the bar far higher than would be acceptable in any of the other countries studied here.”
Yamada and WBI head Gary Namie have in the past declined to discuss their reasoning. Namie on his website describes himself as “widely regarded as North America’s foremost authority on Workplace Bullying.”
The EEOC is seeking comment on its proposed enforcement guidance, which covers harassing behavior related to harassment claims based on sex, race, color, religion, national origin, age, disability, and genetic information. Workplace bullying that is not tied to illegal discrimination is not addressed in the guidance.
The proposed guidance is available here. Comments may be submitted via www.regulations.gov or by mail to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The deadline for submission of comments is February 9, 2017.
Possibly to avoid analysis and potential criticism, it appears the WBI has removed the proposed HWB from the public portion of its website.