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.

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.

Comments

  1. How can anyone know the extent of the emotional damage abuse causes while they’re in the middle of it? Even with physical abuse, there is so much denial that it often causes women and the frail elderly to hang around in victimhood so long that it eventually costs them their lives. With emotional abuse, it can take a very long time before the victim even has an inkling of the damage. It took me 29 years before I owned up to and realized the extent of the psychological damage and trauma avoidance I suffered from workplace abuse. It cost me 29 years of a career I loved passionately and could never revisit, because of the severity of what happened to me: 30 years … and the statute of limitations in New York State was and is 300 days! It’s all ridiculous … and as for “documentation” — there are so-called mental health professionals who are so insane themselves they’re crazier than the patients. I had one of those, too. 29 years after the abuse I finally went to a shrink; and after four sessions she literally threw me out, because I wanted to write about what happened to me. This broad put her nonsensical insistence I “heal” first and write later ahead of the patient. I tried to explain to her the creative process wasn’t like the laundry: I couldn’t put it down and do it later. What happens to the victims who wind up with fruitcakes like I did? After four sessions the shrink also said I didn’t have post traumatic stress disorder, which I did, and so badly that it was first spotted months earlier by my employers: all law enforcement officers. I really feel for anyone having to negotiate today through the process. Unfortunately, for me, I predate the process altogether. I suggest victims document everything, turn on their iPhones and record everything, and even walk around with a wire if necessary. Furthermore, if it takes too long for authorities to step in and stop the harassment, go viral with it on social media or release information to reporters and publicly shame the perpetrators. Enough is enough!

  2. I believe that it is important to establish the health hazard aspect of workplace violence; bullying, harassment, and mobbing. However, I think these behaviors also can be categorized as corporate agency problems because the said behaviors and practices impact performance and profitability. If we look at such behaviors as an agency problem, which includes both taking responsibility for a safe work environment as well as a productive environment. Agency is about optimizing the processes and resources to the benefit of all stakeholders and investors within the framework of the laws.

  3. Wendy Bishop says:

    It is admirable that the EEOC would tackle harassment behavior, but as stated, this is only in connection to defined discrimination regulation. It is all good though, more information and interest will demonstrate the limitations of the current regulation and spread awareness of the wider scope of problems that harassment behavior represents.
    There are so many issues involved in harassment/bullying that it is even difficult to define who should be taking care of it. Even just comparing discrimination and bullying, the manifest behavior patterns may have similarities, but they seem to have different psychological beginnings/motivations and endings/rewards. So we are probably just scratching the surface of this spectrum. The workplace, medical psychology, business theory, training, and organization, parenting, education– there are so many fields that need to come together to really deal with a problem simply defined as how we treat each other. So one step at a time and every step is important. Even submitting comments helps.

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