As of Nov. 22, 2011, there are 12 states carrying 18 versions of our anti-bullying Healthy Workplace Bill sponsored by hundreds of state legislators of both political parties. You can see for yourself by visiting the website for the national Healthy Workplace Campaign. Learn about the bill here. We also address criticisms of the HWB.
In 2012, we expect a flurry of activity. There will be hearings for existing bills, new bills introduced, bills moving to floor votes and a real chance that one or more states may pass the HWB into state law. To prevent confusion during the hectic period when inaccurate portrayals of the HWB will surface, let me clarify our goals for the bill proposed in every state and then showcase the key features of the bill and distinguish it from what wounded, but unhealed, targets of bullying might wish for.
Repeated, Harmful Abusive Conduct Defined
It is important for legal laypeople to understand that the text of the HWB was written by Suffolk Law Professor David C. Yamada. He has made workplace bullying his legal specialty. His year 2000 treatise published in the Georgetown Law Journal was the U.S. legal world’s introduction to bullying and the need for “status-blind” harassment protections for workers. He modeled the HWB on existing anti-discrimination statutes. Practicing attorneys and we who are not familiar with the structure of laws make the poorest critics. That’s why we at WBI accept the HWB completely as the best model legislation for contemporary America.
Legal critics and bully apologists love to claim that bullying is too ambiguous, subjective, and undefinable. Not true. As a first step, we do not refer to “workplace bullying” anywhere in the HWB text. Given the full range of manifested bullying possible, from mild and covert to severe, it only makes sense to have a law address the most egregious, harmful and severe forms. The HWB puts the misconduct on par with domestic violence and other potentially traumatizing experiences. If people are to be given the right to sue, it must not be over a misunderstood interpretation of an arched eyebrow.
Here is the definition codified in HWB. “Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit an employee’s known psychological or physical vulnerability.” Who gets to say what is verbally abusive or threatening? The recipient, just as in anti-discrimination law.
A Necessarily High Standard
Therefore, not every person offended by the actions of others could use the HWB. The bill requires that harm be demonstrated by a medical or mental health professional or that the employer foolishly punished the plaintiff worker by demotion, punitive transfer, retaliation or termination (some adverse employment action). Serious harm required to pursue a serious lawsuit against either the employer, the perpetrator, or both.
Critics argue that courts will be flooded with baseless lawsuits that employers love to call “frivolous.” But system hurdles will minimize the chances of that happening. First, plaintiffs will have to pay for a private attorney out of pocket to mount a case. Costs alone discourage filing cases just to annoy employers. Attorneys will not accept cases with no to little chance of winning. Judges are quick to grant summary judgment to employers (they throw out the entire lawsuit by siding with employers before hearing evidence).
Abusive conduct must be malicious, as defined in the HWB, not by the court. “Malice is defined as the desire to cause pain, injury, or distress to another.” This requirement also will help sort out trivial bullying from health-harming abuse. In severe bullying cases, this standard will most likely be met.
High standards are necessary to weather challenges of constitutionality, if they arise. Laws should have a higher standard to meet, a higher threshold of impact and severity, than company policies. Bullying happens before the onset of health harm. That’s why companies should be less tolerant of the misconduct and respond earlier than any law should require.
The Primary Reason to Enact the HWB
There are two goals stated in the text of the bill. First, it provides legal incentives for employers to prevent and respond to abusive mistreatment of workers. Second, it plugs holes in existing labor laws by allowing employees who have been harmed psychologically, physically or economically by being deliberately subjected to abusive work environments to seek legal relief which they cannot now do.
A good, non-abusive, employer need not fear the HWB becoming law. However, if abuse is routine practice in an organization’s work environment, that employer requires prodding to stop. WBI surveys show that employers do nothing 44% of the time when bullying is reported (according to the national 2007 WBI U.S. Workplace Bullying Survey) and the most common response of employers to bullying (according to an online survey of bullied targets, the real consumers of bullying-related employer responses) is to actively resist employee’s desire to address it (46%) and to remain unengaged (35%) with only 3% of employers creating specific policies and faithfully enforcing them.
It is obvious without the threat of litigation, employers can continue to ignore bullying. Plugging the gap in the law does that. More important is the use of the HWB to dangle the incentive for employers to do what they should be doing voluntarily. With the threat of vicarious liability (holding the employer liable for the misconduct of their managers (72% of bullies are bosses)), employers can be compelled to act.
Employers On, Then Off, the Hook
Plaintiffs can sue their employer (the entity with insurance to cover legal defenses for this type of misconduct, called Employment Practices Liability Insurance – EPLI) because managers are “agents” of the employer and are considered to have acted on the employer’s behalf, whether or not the bully’s actions are known to the employer. That’s the point of employer vicarious liability.
Under HWB, plaintiffs have the option of suing their bully. The only defense for an abuser is if he or she acted “at the direction of the employer, under threat of an adverse employment action.” In other words, the bully was made to do the bidding of the employer under threat.
The HWB text states that if “the employer exercised reasonable care to prevent and correct promptly any actionable behavior;” then it would not be held liable. That means that if the employer has a policy (a preventive act) and enforced it (corrected promptly), the employer escapes liability. It cannot be sued. It has a defense against a claim.
The get-out-of-responsibility provisions in the HWB for employers are called “affirmative defenses.” They are the incentives for employers to start addressing, rather than ignoring bullying. Similarly, the HWB cannot be used against employers if a bullying correction process was in place and the target did not use it, or if the employee was punished for poor performance, misconduct, illegal or unethical activity, or if “economic necessity” led to termination.
Inadequacy of Current Laws
The conclusion of Yamada’s seminal law journal article that launched the HWB is that the tort that most closely fits cases of workplace bullying, Intentional Infliction of Emotional Distress (IIED), nearly always fails to provide relief for bullied targets. The primary reason for the failure is that the threshold of “outrageous conduct” is rarely crossed in U.S. courts. That is, what you and I would consider over-the-top cruelty, thus outrageous, does not meet the U.S. legal standard of conduct beyond the bounds of civilized society. That translates to a license for any manager to do anything and courts consider their tactics within their allowed prerogative. As Yamada concluded IIED is inadequate because courts are too strict for plaintiffs while forgiving most ever transgression of bullies. [In Canada, the tort uses the "reasonable person" threshold. There it takes much less violence for conduct to be deemed outrageous.]
In a 2011 case, a young woman won a $41 million jury award for a combined IIED and sexual harassment case. But it was extremely severe. Even the jury had to admit her manager’s lewd conduct and sexual battery crossed the line. But that’s what it takes to win.
The other existing laws that pertain to bullying cases are state and federal civil rights statutes. We know from the WBI 2007 national survey that 1 in 5 bullying cases also have an illegal discrimination component. That is good for the plaintiff. By filing an EEOC or internal discrimination complaint, the employer will have to pay attention. Of course, complaining triggers a reflexive retaliation by employers. But that’s more good news for plaintiffs. There can now be a charge of retaliation. According to the EEOC, more cases are won by proving retaliation for filing a discrimination complaint than are won when the claim is that one of the seven protected categories was the actual reason for the mistreatment. A 2010 study of the efficacy of discrimination laws found that plaintiffs win in only 15% of cases, and the rate is declining.
The public (and many lawmakers, pundits, bloggers, and nearly everyone who is a target) misunderstands is that to be eligible to claim discrimination — sexual harassment, hostile work environment, racial discrimination, religious persecution — it is best when only the recipient/target is a member of protected status group based on race, gender, age, disability, etc. When the harasser/bully/perpetrator is also protected, it is problematic and may disqualify the plaintiff from filing. The majority of bullying is same gender, same race. Thus, bullying which is 80% of all harassment, is invisible in the eyes of the law. Only a very narrow slice of the population is ever eligible to claim discrimination. Always determine whether the perpetrator is similarly protected. That nullifies any protection for the target. It is a simple and erroneous statement to say that a hostile work environment is illegal in the U.S. Sad, but true.
Given the inadequacy of IIED and civil rights statutes to address workplace bullying, a problem of epidemic proportions in the U.S., there oughta be a law! That’s why we need the HWB. We need it despite whining protestations from corporate defense attorneys who point to IIED and civil rights laws as adequate — for employers, yes — for plaintiffs, protections are non-existent.
A Target’s Wishlist
We certainly wanted a law in the beginning of our involuntary involvement with workplace bullying back in 1995. When we started the organization that has become the Workplace Bullying Institute in mid-1997, we had learned the hard way that existing U.S. employment law was very narrowly defined and did not deserve to be called “protection.” David Yamada annexed his legal work with WBI and in 2001 gave us the first version of the HWB to take to the California legislature. Ruth Namie, Carrie Clark and I learned amateur lobbying the hard way but were able to get the largest state to introduce HWB for the first time in 2003. Now, there is a nationwide team of volunteer State Coordinators carrying the HWB to their state legislatures. For the technical content of the bill, we defer to law professor Yamada. We and the Coordinator team are the implementers.
When deep in the throes of emotional turmoil through no fault of their own, bullied targets demand justice. They deserve it. Naturally they turn to the law and courts to provide this. They want to sue. They want retributive justice — someone must be punished and held accountable. They want revenge. One late website author used to insist that all bullies were psychopaths. He never seemed to heal. To individuals subject to such constrained thinking and prone to emotional distortion, affirmative defenses for employers make the bill sound weak.
The HWB will become a civil law. The only method for restoring a plaintiff’s dignity and sense of justice is cash. This is not a bill to create a criminal law. There are only two in the world: (1) a new 2011 bill in the Australian state of Victoria, and (2) the French Social Modernisation Law. So, please know that people, however heinous, will not be going to jail after the HWB becomes law.
Targets want draconian laws to punish employers. And so might we. However, the process of making laws in the U.S. is through legislators who win their elective seats by raising money, most of it corporate money. There is little appetite for advancing laws for middle class working folks. In fact, after the 2010 election, there was a spate of anti-worker, anti-union laws passed simultaneously in several states. Current politicians who populate the state legislatures mostly hate or are indifferent to the plight of workers.
The lawmakers who are the exceptions to the new rules are the brave sponsors of the HWB. Their lives have been personally touched by destructive bullying. They come from all political parties. They lend credence to our statement that the HWB is non-partisan. However, in states with majorities in both chambers and the governorships where anti-worker laws passed, it is an uphill battle to simply get the HWB introduced.
This is the political world we have for the next several years. Abuse at work is serious. But so is self-destruction of the planet by governments’ failure to deal honestly with climate change, pollution and the effect of the destructive human imprint on the natural world. If lawmakers can’t address ways to ensure we have suitable air and water for our grandchildren, you can imagine how easily they dismiss the abuse of adults in the contemporary workplace. The business lobby’s clamoring for jobs through the elimination of basic regulations for employers overwhelms our counter-message that employers should be mildly constrained so that work does not become a war zone for anyone.
We appreciate that some legal writers have considered passage “inevitable.” The momentum of the workplace bullying movement that we originated here in the U.S. is building as the term “workplace bullying” enjoys more mainstream acceptance and usage every year. Much work remains to be done and it will not stop when the first state makes HWB law. That will simply launch a new phase in the struggle.
A short final word about why we are pursuing state laws and not a national one. Each state has different workers compensation laws to which the HWB must conform. It would be nearly impossible to craft a national law that could accomplish that task. With a national law, there are also interstate commerce clauses that must be dealt with, further complicating the task. And finally, have you looked at Congress lately, both the paralyzed Senate and the wacky House? We have lobbied a bit in Washington, DC but with a different purpose than to propose a national law to complement federal civil rights statutes.
For those who think we should expand existing civil rights laws, think again. Those statutes are considered sacred by constituencies that benefit most from those laws. There is a dormant opposition to tinkering with those hard-won laws that could be awakened if we sought to supplement current protections in the civil rights codes. Modifying them in the reactionary political climate that has prevailed for the last 31 years in the U.S. seems to be a fool’s errand. We shall stick with our state-by-state campaign unless there is a major upheaval in national politics and a new progressive era is ushered in.
The Confluence of Movements
The Healthy Workplace Campaign certainly benefits from the Occupy movement that addresses income inequality. The protesters have made clear the unnatural and undemocratic disparity that is reflected where we go to work (if we have a job at all). That owners control the entire work environment and can callously discharge workers with no consequences when no union is present. The intra-organizational political disparities reflect the broader economic ones in society. Workplaces are microcosms of society.
In America’s private sector, 93% of workers have no union. The doctrine of “employment at will” prevails. It is that same negation of workers’ rights relative to those of the owners that fosters workplace cultures where bullying thrives. Employers continue to fire anyone daring to organize a unionization drive. Employer campaigns to discredit unions at meetings where they can mandate all-hands attendance seem to work. Many workers, despite unemployment at Great Depression levels, prefer to side with employers rather than with their colleagues to demand fairer treatment.
To improve workers’ lives, there must be attempts to chip away at employers’ unilateral control over workers. They won’t voluntarily yield or share power without pressure from employees working collaboratively and collectively.
In the absence of unions, and to enhance the safety of unionized workers, please help us pass the Healthy Workplace Bill. Do it to restore some fairness to the American workplace.
National Director, Healthy Workplace Campaign
Nov. 22, 2011
An interview with Adam Cohen, Yale Law Professor, on CNN that provides a great tutorial on the HWB.