Workplace Bullying: America Lags Behind

It is a disgrace that America is one of the only industrialized countries in the world that tolerates workplace bullying.

Please sign a petition asking the Obama administration to formulate a national strategy to halt workplace bullying. The petition, created by a coalition of workplace anti-bully advocates (including this blog), can be found at http://www.thepetitionsite.com/1/protect-us-workers/.

Among other countries, America lags behind the 32 members and participating states of the European Union that voted in 2007 to require all employers to address and prevent workplace bullying.  Sweden acted in 1993!

The World Health Organization calls workplace bullying a major public health problem.  There is overwhelming research showing that targets of workplace bullying may suffer a variety of long-and short-term mental and physical health problems. A high level of stress in the workplace is linked to chronic disease, including cardiovascular disease.

If you happen to be the one-in-four American workers who are afflicted with bullying, you will quickly find that no federal or state law exists to protect you.  Sure, the U.S. Occupational Health and Safety Act of 1970 requires employers to provide all workers with a safe workplace but the OSH Act is not enforced with respect to workplace bulling. Even if you can shoehorn your complaint into an existing law, it will be an expensive, long, uphill battle.  You may also find that the American judiciary is not knowledgeable or sympathetic to the plight of workers.

Surveys show that most targets of bullying are either forced to quit or resign.

In a little more than two weeks, about 7,000 people have signed the petition. Surely this is evidence of the overwhelming nature of this problem, especially in our current dire economy, with an aging workforce that cannot afford to quit or retire. When you sign the petition, an email is dispatched to both the White House and to the Labor Secretary.

Here are some recent comments from the petition:

  •  Workplace bullying has to end! My diabetic dad is too afraid to speak out against his coworker and boss who are creating a severe hostile work environment for fear of losing his job. This epidemic has to stop.
  • Workers who bully are unprofessional and immature and psychologically disturbed, and contribute to health problems in their targets and increased absenteeism and med costs. Remove the bullies, the work environment should be on a professional par with other industrialized countries, and not a playpen or a refuge for sociopaths.
  •  I too was bullied by a supervisor, who was a bully while in school. He would snark at me, make fun of my work if my way of performing the task was different than how he envisioned (my way was more time-efficient even), roll his eyes at my comments, and such. Once when he was asking me for some personal info I finally told him, ‘why would I give a bully additional info to use against me?’ I had lots of hair loss, high blood pressure, unsettling dreams leading to unsettled sleep patterns, and felt tired all the time. I did finally make it to retirement, whew, and it took 6-10 months for my body to realign from all the stress.
  •  I had loved my job and the people I worked for and with; but after seeing my boss bully and harass employees until they quit or are fired; it suddenly became my turn. i could not understand why a guy that i gave everything to 12- 15 hours a day, would harass me and call me names to the point where I would be hospitalized several times for severe anxiety disorder, and have to live with it and medication. all caused by one man that felt that with power and riches he can ruin anyone’s life he chooses.
  •  Bullies aren’t found only in the schools. Some graduate to become workplace bullies. Just because they are chronologically adult doesn’t guarantee they will act responsibly. Please act to protect working Americans.

Other Options to Halt Workplace Bullying

After a decade, questions are being raised about 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 last fall 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 states that have considered it. I proposed that the U.S. Secretary of Labor Hilda L. Solis empanel a task force to study the problem and propose new legislation on how to best address the problem of workplace bullying nationally.

The Vermont Senate has thrown 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.   Senate Bill 52 suggests 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.

Gary Namie, the director of the Workplace Bullying Institute, this week 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 HWB as proposed is anemic. It contains hurdles that are 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 include requirements that targets prove malice and psychological injury and a $25,000 cap on damages for targets who are not demoted or fired. Many – if not most  — targets will find it difficult or impossible to obtain a meaningful remedy.  (Namie and Yamada refused to respond to questions about the troubling language of the HWB.)
  • 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.

 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.