Lawmakers, who support employer claims that bullying is best handled voluntarily, without creating a law to keep them honest, love to criticize the HWB as lacking a clear definition. Actually, the bill is specific and tough in two ways. First, it gives four classes of abusive conduct that are actionable — (1) verbal abuse, (2) conduct that is threatening, intimidating or humiliating, (3) work interference, and (4) exploitation of a known vulnerability, physical or psychological. Second, it requires evidence of health harm.
Business lobby opponents ignore the clarity and whine that workplace bullying cannot be defined, that it is purely subjective (in the eye of the beholder). The HWB does not mention workplace bullying. Instead it refers to an abusive work environment and abusive conduct.
Undermining opponent arguments is the legal precedent of Title VII Civil Rights law defining “Sexual Harassment.” Here is the exact text from the CFR, Code of Federal Regulations. It too could be considered “subjective.” And it is the law of the land!
CFR Title 29: Labor
Subtitle B: Regulations Relating to Labor (Continued)
CHAPTER XIV: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 1604: GUIDELINES ON DISCRIMINATION BECAUSE OF SEX
1604.11 – Sexual harassment.
(a) Harassment on the basis of sex is a violation of section 703 of title VII. 1
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
“Hostile” or “offensive” or “intimidating” is defined by the perceptions of the recipient of the unwelcome conduct. It is “subjective.” But it is the law of the land.
One thing for certain … if civil rights advocates tried to pass sex harassment laws today, they would meet the same resistance we meet as advocates for the anti-bullying/anti-abuse Healthy Workplace Bill. Anti-discrimination would never pass in this polarized political and hate-filled climate.
The network of volunteer State Coordinators and their army of outspoken Citizen Lobbyists are not giving up. The campaign begins anew in 2013. We will eventually prevail, we own the moral high ground.